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The Guide to Challenging and Enforcing Arbitration Awards - First Edition

Belgium

Applicable requirements as to the form of arbitral awards


Applicable legislation as to the form of awards

1     Must an award take any particular form (e.g., in writing, signed, dated, place, the need for reasons, delivery)?

The Belgian law on arbitration is contained in Part Six, Articles 1676 to 1722 of the Belgian Judicial Code (BJC). It is inspired to a large extent by the UNCITRAL Model Law. Arbitration proceedings initiated before 1 September 2013, and court proceedings relating to those arbitrations, remain governed by the former rules of the BJC. In 2016 (by an Act of 25 December 2016), some minor changes and corrections of the Act of 24 June 2013 were implemented, which entered into force on 9 January 2017.

The form of arbitral awards is governed by Article 1713 of the BJC, which deals with the validity requirements and different aspects relating to the content of arbitral awards. Belgian law builds on Article 31 of the UNCITRAL Model Law, adding to it as well as deviating from it in a number of ways, including by requiring that an arbitral award issued in Belgium should be reasoned and by removing the opportunity for parties to agree that no reasons need to be given (a lack of reasoning constitutes, among others, a ground for annulment of the arbitral award – see question 3).

To be valid under Belgian law the arbitral award must:

  • as to form: be in writing and signed by the arbitral tribunal (the signature of the majority of the members of an arbitral tribunal is sufficient, if the reason for any omitted signature is mentioned) (Article 1713, Section 3, BJC);
  • as to substance: state the reasons upon which it is based (Article 1713, Section 4, BJC) and contain at least the following information: (1) the names and domiciles of the arbitrators, (2) the names and domiciles of the parties, (3) the object of the dispute (and a citation of the arbitration agreement, although not explicitly required by law), (4) the date on which the award was rendered, and (5) the place of arbitration.

Following the amendment of the Belgian law on arbitration in 2016, it is no longer required by law that an original copy of the award be filed with the competent court for the enforcement.

Applicable procedural law for recourse against an award


Applicable legislation governing recourse against an award

2     Are there provisions governing modification, clarification or correction of an award?

Parties may apply for an interpretation, a correction or an additional award within a month of communication of the arbitral award to the parties.

If there are any clerical or typographical errors, errors in calculation or other errors of a similar nature, the parties (or the arbitral tribunal on its own motion) may request the correction of the arbitral award pursuant to Article 1715, Section 1(a) of the BJC.

A party may also, subject to agreement by the other parties to that effect, request the arbitral tribunal to provide an interpretation of (an aspect of) the award (Article 1715, Section 1(b), BJC). Unless agreed otherwise, the parties may also request the arbitral tribunal to issue an additional award on claims that had been presented to it but on which it has not pronounced itself (Article 1715, Section 3, BJC).

In principle, the same arbitral tribunal is competent to issue correcting, interpreting or additional awards as described above. When it is impossible for the same arbitrators to do so, the court of first instance is competent (Article 1715, Section 6, BJC).

Belgian law also provides parties with the opportunity to ask that potential annulment grounds be remedied by the arbitral tribunal. Pursuant to Article 1717, Section 6 of the BJC, parties may request the court be seised in set-aside proceedings to stay the proceedings for a period determined by the court, so that the arbitral tribunal can take any measure necessary (including reopening the arbitration proceedings) to remedy the potential grounds for setting aside.


Appeals from an award

3     May an award be appealed to or set aside by the courts? If so, on what grounds and what procedures? What are the differences between appeals and applications for set-aside?

Pursuant to Article 1716 of the BJC, appeals against arbitral awards are only possible when the parties provided beforehand, in a mutually agreed arbitration clause, for the possibility of an appeal. In such – very exceptional – cases, an appeal should be brought before a new arbitral tribunal.

Pursuant to Article 1717 of the BJC, Belgian awards, which are not open to appeal, may be set aside by Belgian courts on the basis of an exhaustive list of grounds provided in the law.

Set-aside proceedings must be initiated by writ of summons served on the other parties to the arbitration proceedings, before one of the six competent courts in Belgium (the courts of first instance of Brussels (French-speaking and Dutch-speaking), Antwerp, Ghent, Liège and Mons) (Article 1717, Section 2, BJC). The law provides a time limit for initiating the setting aside proceedings (i.e., within three months of the date on which either the award was communicated to the party seeking setting aside, or the arbitral tribunal’s decision on an application for correction or request for an additional award or omitted claim – if such an application or request was made – was communicated to that party) (Article 1717, Section 4, BJC).

When none of the parties are Belgian nationals, they may waive, by explicit declaration in the arbitration agreement or by later agreement, the possibility for annulment of the arbitral award (Article 1718, BJC). The annulment (or setting aside) decision is final and cannot be appealed before the courts of appeal (Article 1717, Section 2, BJC). However, a recourse before the Belgian Supreme Court remains open.

The law provides for a limited number of grounds that can warrant the setting aside of the arbitral award. Those exhaustive grounds are inspired by Article 34(2) of the UNCITRAL Model Law and are similar to the grounds for refusal of enforcement (see question 13).

A party may seek the setting aside of a Belgian award if it provides proof of one the grounds listed under Article 1717, Section 3 of the BJC:

  • one of the parties to the arbitration agreement was under some incapacity; or the arbitration agreement is invalid under the law applicable to it, or if there is none, under Belgian law (Section 3(a)(i));
  • the party seeking annulment invokes a violation of the right to be heard (i.e., that party was not notified properly of the appointment of an arbitrator or of the arbitral proceedings or it was otherwise impossible for that party to present its case) (Section 3(a)(ii)). This ground will only be accepted if the irregularity had an effect on the arbitral award;
  • the arbitral award pertains to a dispute that does not fall within the terms, or under the scope, of the arbitration agreement (Section 3(a)(iii)). Here, only the part of the award that does not fall under the scope of the arbitration agreement may be set aside;
  • there was an irregularity in the composition of the arbitral tribunal or the arbitral proceedings, either according to the parties’ agreement, or to Part Six of the BJC (the Belgian law on arbitration) (Section 3(a)(v)). Irregularities in the arbitral proceedings may only lead to a setting aside if it is established that they had an effect on the award;
  • the arbitral award is not reasoned (Section 3(a)(iv));
  • the arbitral tribunal exceeded its powers (Section 3(a)(vi));
  • the subject matter of the dispute cannot be settled by arbitration (non-arbitrability) (Section 3(b)(i));
  • the award is contrary to public policy (Section 3(b)(ii)); or
  • the award was obtained by fraud (Section 3(b)(iii)).

The latter three grounds (non-arbitrability, public policy and fraud) must also be raised by the court of first instance seised by the party seeking setting aside of the award on their own motion, thus even if the parties do not invoke such grounds.

Note that a party may be estopped from advancing certain grounds for setting aside if it was aware of them during the arbitration proceedings but failed to invoke them before the arbitral tribunal (Article 1717, Section 5, BJC, referring to the first four grounds listed above).

If an arbitral award is set aside, it is deemed to no longer exist under Belgian law. If the award was set aside on any ground other than the invalidity of the arbitration agreement, the parties may initiate new arbitration proceedings. In contrast, an appeal against the arbitral award (if the parties provided for that opportunity) would result in a new arbitral award, which in itself would be open to setting aside proceedings.

In principle, only a person or entity that was a party to the original arbitration proceedings may request the annulment of the arbitral award. It is only in the event of fraud that a third party may be admitted to request the setting aside of an arbitral award.

However, the Belgian Constitutional Court decided (judgment dated 16 February 2017) that third parties aggrieved by an arbitral award should be able to exercise recourse against that award by way of third party opposition proceedings instituted before domestic courts. Therefore, a third party is now entitled to challenge an arbitral award in the same way as a third party can challenge a judicial decision (a challenge that is known as a tierce-opposition (derdenverzet), as provided in Article 1122, BJC). This opens the possibility for a review of awards on the merits. So far, the legal regime governing this third party opposition to an arbitral award has not been presented in more detail. The precise consequences of the Constitutional Court’s decision remains to be delineated. In our view, there is a need to adjust the BJC to provide for the applicable regime to those specific challenges from third parties.

Applicable procedural law for recognition and enforcement of arbitral awards


Applicable legislation for recognition and enforcement

4     What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

The Belgian law on arbitration is contained in Part Six of the BJC (as remodelled by the Arbitration Act of 24 June 2013 and by the Act of 25 December 2016) and is to a large extent inspired by the UNCITRAL Model Law. Chapter VIII of the BJC (Articles 1719 to 1721, BJC) governs the recognition and enforcement of arbitral awards.

Belgium is party to several treaties facilitating recognition and enforcement of arbitral awards, namely the New York Convention of 10 June 1958 (which it signed with the reservation of reciprocity (see question 5); the New York Convention supersedes the Geneva Convention of 26 September 1927 on the enforcement of foreign awards, which Belgium had also ratified), the European Convention on International Commercial Arbitration of 21 April 1961, and the ICSID Convention of 18 March 1965 (the Belgian Act of 17 July 1970 implements the ICSID Convention under Belgian law). The recognition and enforcement of ICSID arbitral awards is governed by a distinct regime (see question 32). 

Belgium has also signed five bilateral treaties on recognition and enforcement of arbitral awards with Austria, France, Germany, the Netherlands and Switzerland.

Article 1721(3) of the BJC provides that a treaty concluded between Belgium and the country where the arbitral award was rendered takes precedence over domestic rules. This provision must be read with the ‘more favourable law’ provision of the New York Convention, which provides that the Convention does not take precedence over legislation that is more favourable to recognition and enforcement.


The New York Convention

5     Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under Article I(3) of the Convention?

Yes. Belgium signed the Convention on 10 June 1958 and ratified it on 18 August 1975. The New York Convention entered into force on 16 November 1975. 

Belgium has made a reciprocity reservation under Article I(3) of the Convention. Therefore, it is only applicable to the recognition and enforcement of arbitral awards made in the territory of a contracting state. In Belgium, the Convention is applicable in both commercial and civil matters.

Recognition proceedings


Competent court

6     Which court has jurisdiction over an application for recognition and enforcement of arbitral awards?

The court of first instance has jurisdiction to hear applications for recognition and enforcement of arbitral awards.

In the case of a foreign award, the territorially competent court of first instance is the court of the place where the party against whom enforcement is sought has its domicile, residence, registered seat or branch in Belgium or, in the absence of any of these, the place where the applicant wishes to enforce the arbitral award (Article 1720, Section 2, BJC).

In the case of a Belgian award, the competent court is the court of first instance with jurisdiction at the place of the seat of the arbitration (Article 1680, Section 6, BJC).


Jurisdictional issues

7     What are the requirements for the court to have jurisdiction over an application for recognition and enforcement of arbitral awards? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

As for any other proceedings, the applicant has to demonstrate that it has locus standi (meaning a genuine interest to act). Apart from that, there are no specific requirements for the court to have jurisdiction over an application for recognition and enforcement of arbitral awards, whether foreign or domestic.

It is not required under Belgian law that the applicant identifies assets within the jurisdiction of the court to obtain the recognition and enforcement of an arbitral award.


Form of the recognition proceedings

8     Are the recognition proceedings in your jurisdiction adversarial or ex parte?

Recognition proceedings are ex parte in Belgium, meaning that recognition is sought by way of a unilateral request. The party against whom enforcement is sought has no right to be heard at that stage of the procedure (but it can lodge third-party opposition proceedings against the exequatur order). 


Form of application and required documentation

9     What documentation is required to obtain the recognition of an arbitral award?

Pursuant to the New York Convention, an applicant must provide the court with the original or a duly authenticated copy of both an arbitral award and an arbitration agreement.

Pursuant to the BJC, an applicant must provide the court with the original or a duly authenticated copy of an arbitral award in its entirety. Following the entry into force of the latest amendments to the Belgian law on arbitration in January 2017, it is no longer required to provide the court with the original or a copy of an arbitration agreement. This amendment was introduced to make Article 1720 of the BJC compatible with Article 35 of the UNCITRAL Model Law and Article 1681 of the BJC, which no longer requires an arbitration agreement to be in writing.

The application itself must be filed in triplicate and signed by an attorney entitled to plead before Belgian courts.


Translation of required documentation

10     If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition of an arbitral award? If yes, in what form must the translation be?

Pursuant to the New York Convention, if the required documentation is not drafted in the language of the proceedings (in Belgium, either French or Dutch), it is necessary to submit a sworn translation of an arbitral award or an arbitration agreement.

There is no such requirement provided in the BJC. In practice, it is recommended to submit a translation (at least an informal translation) to allow the exequatur judge to have a clear understanding of the case.


Other practical requirements

11     What are the other practical requirements relating to recognition and enforcement of arbitral awards?

An applicant must elect domicile in the district of the court of first instance with jurisdiction over the application for recognition and enforcement of the arbitral award. In practice, foreign applicants usually elect domicile at their attorney’s office. If an arbitral award is recognised by the exequatur judge, a registration fee of 3 per cent of the amount of the award (excluding interests) will be levied by the Belgian Tax Authority. In principle, the registration fee is only payable by the award debtor.


Recognition of interim or partial awards

12     Do courts recognise and enforce partial or interim awards?

Belgian courts generally recognise and enforce partial and interim awards (whatever their form) as long as they contain an order that is no longer subject to appeal before the arbitrators.


Grounds for refusing recognition of an award

13     What are the grounds on which an award may be refused recognition? Are the grounds applied by the courts different from the ones provided under Article V of the Convention?

Article 1721 of the BJC provides several grounds for refusing recognition and enforcement that are inspired by Article 36 of the UNCITRAL Model Law and are to a large extent similar to those provided under Article V of the New York Convention.

The grounds for refusal of exequatur set forth in Article 1721 of the BJC are similar to the grounds for annulment of Belgian arbitral awards (see question 3). Hence, recognition and enforcement of an arbitral award may be refused if the party against whom enforcement is sought provides evidence that:

  • one of the parties to the arbitration agreement was under some incapacity, or the arbitration agreement is invalid under the law applicable to it, or if there is none, under Belgian law;
  • the right to be heard of the party against whom enforcement is sought was breached (i.e., that party was not notified properly of the appointment of an arbitrator or of the arbitral proceedings or it was otherwise impossible for that party to present its case) if the irregularity had an effect on the arbitral award;
  • the arbitral award pertains to a dispute that does not fall within the terms, or under the scope, of the arbitration agreement. If only part of the award falls under the scope or terms of the arbitration agreement, only that part may be recognised and enforced;
  • the arbitral award is not reasoned. Recognition or enforcement may only be refused if such reasoning is required under the rules applicable to the arbitration proceedings;
  • there was an irregularity in the composition of the arbitral tribunal or the arbitral proceedings, either according to the parties’ agreement or to the law of the country where the arbitration took place. Irregularities in the arbitral proceedings may only lead to a refusal of recognition if it is established that they had an effect on the award;
  • the arbitral award has not yet become binding on the parties (e.g., because it is still open for appeal) or has been set aside or suspended by a court of the country where the award was made (or which laws were applicable to the proceedings) (for more details, see question 16); or
  • the arbitral tribunal exceeded its powers.

Recognition and enforcement of an arbitral award may also be refused ex officio if:

  • the subject matter of the dispute cannot be settled by way of arbitration (non-arbitrability);
  • the award is contrary to public policy; or
  • the award was obtained by fraud.

Effect of a decision recognising an award

14     What is the effect of a decision recognising an award in your jurisdiction? Is it immediately enforceable? What challenges are available against a decision recognising an arbitral award in your jurisdiction?

The order of the exequatur judge recognising the arbitral award in Belgium is immediately enforceable and is not subject to appeal by the party seeking recognition and enforcement.

Under Belgian law, the party against whom enforcement is sought can challenge the decision granting the exequatur to the award within one month of the date of the service of the order by way of third party opposition proceedings before the same court of first instance, this time in adversarial proceedings. The challenge does not in itself stay the enforcement of the arbitral award.

As of 9 January 2017, the party who lodges a recourse against a decision enforcing an arbitral award issued in Belgium and who wants to have an arbitral award set aside, is forced to make a setting aside application concomitantly with the challenge to the enforcement order and in the same procedure (provided that the deadline to file a setting aside application has not expired) (Article 1717, Section 7, BJC).

Aside from that, it has long been decided by the Belgian Court of Cassation that third parties (parties who did not participate and who were not called to participate in the arbitration) may not challenge the order recognising and enforcing the arbitral award. As noted above (see question 3), the Belgian Constitutional Court decided in a judgment dated 16 February 2016 that a third party should have the right to directly challenge an arbitral award before the Belgian courts (to avoid being in opposition to the res judicata effect of that award). Nevertheless, it remains the case that a third party may not challenge the enforcement of an arbitral award.


Decisions refusing to recognise an award

15     What challenges are available against a decision refusing to recognise an arbitral award in your jurisdiction?

If recognition is refused, an applicant may only lodge an appeal against that decision before the Belgian Court of Cassation on points of law (the Arbitration Act of 2013 removed the possibility to challenge the decision before a court of appeal).


Stay of recognition or enforcement proceedings pending annulment proceedings

16     Will the courts adjourn the recognition or enforcement proceedings pending the outcome of annulment proceedings at the seat of the arbitration? What trends, if any, are suggested by recent decisions? What are the factors considered by courts to adjourn recognition or enforcement?

With respect to foreign arbitral awards, Article VI of the New York Convention provides that, if annulment proceedings are initiated in the state where an award was rendered, the exequatur judge may, if appropriate, adjourn the decision on the enforcement of the award. Belgian courts essentially rely on the seriousness of the grounds invoked at the seat of the arbitration for setting aside the arbitral award. If there is no reasonable risk of the award being set aside, Belgian courts will not adjourn the proceedings. The Belgian exequatur judge also considers the potential ease or difficulty of enforcing the award.

There is no similar provision under Belgian law pertaining specifically to the adjournment of recognition proceedings in the event of a setting aside proceedings pending in the state where the arbitration had its seat. Nevertheless, once the exequatur is granted, the person against whom enforcement is sought and who challenges the recognition order may request before the court of attachments (a specific chamber within a court of first instance) a temporary stay of the enforcement of the exequatur order on the basis of Article 1127 of the BJC. According to the relevant case law and legal literature, an applicant must demonstrate either that there is a strong prima facie chance that the exequatur order will be reversed or that a risk of irreparable harm exists. 


Security

17     If the courts adjourn the recognition or enforcement proceedings pending the annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security? What are the factors considered by courts to order security? Based on recent case law, what are the form and amount of the security to be posted by the party resisting enforcement?

In accordance with Article VI of the New York Convention, an exequatur judge may, at the request of an applicant, order the person against whom enforcement is sought to post a suitable security. Article VI grants exequatur judges a great margin of discretion in deciding whether to order the posting of a security and the amount that should be posted as security.


Recognition or enforcement of an award set aside at the seat

18     Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an award is set aside after the decision recognising the award has been issued, what challenges are available against this decision?

Pursuant to Article V(1)(e) of the New York Convention and the new Article 1721(1)(a)(vi) of the BJC, the setting aside of an arbitral award at the seat of the arbitration is a ground for refusal of its recognition and enforcement. However, it can be argued that the enforcement court keeps a discretion under Article V of the New York Convention in this respect (hence the same argument can be made with respect to Article 1721(1)(a)(vi), BJC).  

Under the former regime of the BJC, the setting aside of the arbitral award was not contained in the list of grounds for refusal of recognition and enforcement (former Article 1723). Therefore, several prominent authors have argued that Belgian law was more favourable and had to prevail on the basis of Article VII(1) of the New York Convention. 

Service


Service in your jurisdiction

19     What is the applicable procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction?

Service of judicial and extrajudicial documents are carried out in Belgium by bailiffs. They are the only officers entitled to perform that mission pursuant to the BJC.


Service out of your jurisdiction

20     What is the applicable procedure for service of extrajudicial and judicial documents to a defendant out of your jurisdiction?

Different regimes are potentially applicable for the service of extrajudicial and judicial documents abroad, depending on the state addressed.

In principle, service on a defendant who is not domiciled or has no (chosen) place of residence in Belgium is governed by the BJC (more specifically Article 40), which provides that service occurs by registered mail through normal postal channels, and that the service is deemed complete at the time of delivery of the documents to the postal services. However, international agreements take precedence over the general rule of domestic law. Hence the procedures set forth at the European and international level (as set out below) will supersede Article 40 of the BJC.

Service from and to Member States of the European Union is regulated by Regulation (EC) No. 1393/2007 of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters. A proposal for the revision of the Regulation is due to be voted on in the course of 2019. This would amend the Regulation on a number of points, to take into account, among other elements, new technologies and to promote the use of more direct and cheaper methods of judicial assistance. The currently applicable Regulation 1393/2007 provides a procedure for the service of documents via designated transmitting agencies and receiving agencies between EU countries, including Denmark. A transmitting agency transmits documents to a receiving agency, which ‘serve[s] the document or ha[s] it served, either in accordance with the law of the Member State addressed or by a particular method requested by the transmitting agency, unless that method is incompatible with the law of that Member State’ (Article 7(1), Regulation 1393/2007).

Service in states outside the European Union is regulated by the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention), for those states that have ratified it. The Hague Service Convention provides that the authority or judicial officer competent under the law of the state in which the documents originate (in Belgium, the bailiff is a competent judicial officer) shall forward a request to the central authority of the state addressed (as designated by that state – in Belgium, the Federal Public Service for the Judiciary). In this respect, the Belgian Supreme Court has admitted the ‘double date theory’, determining that the service of judicial acts is deemed to be accomplished towards the served party as from the date this party actually receives the served act. Towards the serving party, the service under Article 3 of the Convention is considered effective when the judicial act is handed over to the postal service of the state of origin with notice of registered sending, and therefore prior to the actual receipt of the act by the served party. The Convention allows for service by way of alternative channels (such as registered mail), on the condition that the contracting states did not issue an objection in that regard.

Judicial and extrajudicial documents can also be served through diplomatic channels, especially when they are to be served on sovereign states (see question 33). 

Identification of assets


Asset databases

21     Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction?

Article 22 of the Belgian Constitution protects the right of the debtor to privacy, including the privacy of its estate. Therefore, only restricted means exist to identify assets of an award debtor located in Belgium. Public registers are available for immovable properties (land and mortgage registers) but not for other types of assets (movable and intangible properties).

Usually award creditors use publicly available information, run private investigation or perform third-party attachments (garnishments) with banks and financial institutions to identify assets in Belgium.


Information available through judicial proceedings

22     Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

Belgian law allows for the collection of evidence by means of investigatory measures requested from the courts (for instance, an order can be requested to force a debtor to disclose specific documents). Article 877 of the BJC specifically deals with the forced disclosure of documents. Courts may order a party or a third party to file a document containing evidence of a relevant fact if there are serious, precise and corroborative presumptions that a party or a third party holds the said documents.

Investigatory measures can be requested by means of an ex parte application if the applicant demonstrates an absolute necessity to waive adversarial proceedings (extreme urgency, need to benefit from a surprise element or impossibility of identifying the adverse party).

Enforcement proceedings


Availability of interim measures

23     Are interim measures against assets available in your jurisdiction? May award creditors apply such interim measures against assets owned by a sovereign state?

Articles 1413 et seq. of the BJC authorise award creditors to apply conservatory attachments against assets of their debtor. Conservatory attachments operate like freezing orders.

Conservatory attachments are valid for a (renewable) three-year period as from the date of their service on the debtor by the bailiff. 

Other types of interim measures that are possible include requesting an order for security, a specific guarantee or the appointment of a court receiver who can keep and preserve movable assets during the course of the proceedings. 

Following the amendment of the BJC by law dated 23 August 2015, any measures of enforcement, including conservatory garnishment, against assets owned by a sovereign state, will only be successful if an exception enshrined in Article 1412 quinquies, Section 2 BJC applies (i.e., when the assets are not covered by sovereign immunity (as discussed more extensively in question 34)).


Procedure for interim measures

24     What is the procedure to apply interim measures against assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before applying interim measures? If yes, are such proceedings ex parte?

The following conditions are required to apply for a conservatory attachment against assets in Belgium: a valid title (i.e., a claim that is certain and due, and definite or subject to a provisional estimate) and urgency, to be determined on the basis of objective criteria.

In principle, an authorisation of the court of attachments is required before proceeding with the conservatory attachment. Authorisation is granted on an ex parte basis. 

However, Article 1414 of the BJC provides that a judgment, even if not enforceable, can serve as an authorisation to lay interim measures on assets of the debtor. For the purposes of said Article 1414, non-recognised foreign arbitral awards are equally considered judgments provided that a treaty exists between Belgium and the state where the award was made.

Moreover, garnishments of bank accounts (or of other type of claims held by a debtor in Belgium) can be made without prior authorisation (see question 27). 


Interim measures against immovable property

25     What is the procedure for interim measures against immovable property within your jurisdiction?

Apart from the rules outlined in question 24, specific documentation has to be filed with the court of attachments with an ex parte application, namely an extract from the land register pertaining to the immovable property in question and a mortgage certificate.

If the court of attachments grants the authorisation, its order has to be served on the debtor. To be valid, the conservatory attachment on immovable properties must be entered on the mortgage register.

A debtor has one month to lodge an appeal against an order of the court of attachments from the date of its service by the bailiff.


Interim measures against movable property

26     What is the procedure for interim measures against movable property within your jurisdiction?

There are no specific rules dealing with conservatory attachments against movable property (other than those outlined in question 24). 

Once an authorisation in granted by the court of attachments, the order has to be served on the debtor. An appeal may be lodged within a month of the date of service.


Interim measures against intangible property

27     What is the procedure for interim measures against intangible property within your jurisdiction?

As stated in question 24, a prior authorisation of the court of attachments is required, in principle. However, in respect of intangible assets, pursuant to Article 1445 of the BJC, garnishments may be made on the basis of a ‘private title’, without prior authorisation of the court of attachments.

An order of the court of attachments or a writ of attachment (if no authorisation has been requested) must be served by a bailiff on the garnishees listed in that document (generally, banks, financial institutions and companies). The garnishees have 15 days from the date of the service to issue a declaration of every debt they owe the principal debtor as well as their origin, amount, and terms and conditions. If they fail to do so, garnishees may be summoned before the court of attachments to be declared themselves debtor of all or part of the principal claim (and costs). Moreover, as soon as the order or the writ has been served on the garnishees, they may no longer relinquish any sums or securities that form the object of the attachment, again under penalty of being declared debtor of the principal claim (and costs) themselves. 

The garnishments must be notified to the debtor within eight days of the service on the garnishees by the bailiff. A challenge can be lodged within a month of the date of the notification.


Attachment proceedings

28     What is the procedure to attach assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before attaching assets? If yes, are such proceedings ex parte?

To lay an executorial attachment on assets (i.e., an attachment that will enable the creditor to be paid out of the assets’ value), the creditor must hold an enforceable title (i.e., the exequatur order enforcing the arbitral award). Once this title is granted, the creditor can either convert a conservatory attachment measure into an executorial attachment, or lay an autonomous executorial attachment.

According to Articles 1491 and 1497 of the BJC, if a conservatory attachment was made pending the grant of an enforceable title, no new attachment is required to convert the interim measure into an executorial attachment. The service of the exequatur order on the debtor will automatically convert the conservatory attachment into an executorial one. However, if an appeal has been lodged against the interim measure, Article 1491(3) of the BJC provides that the conversion is delayed until a judgment is handed down by the court of attachments.

To avoid the risk of a delay in the conversion of an interim measure into an executorial attachment, the creditor may choose to lay an autonomous executorial attachment based on the title obtained in the meantime. The autonomous attachment can be made from the day after the service of the title on the debtor.


Attachment against immovable property

29     What is the procedure for enforcement measures against immovable property within your jurisdiction?

The executorial attachment of immovable property is preceded by service of a prior notice to pay under the penalty of attachment. To save time, service of the prior notice can be made with service of the enforceable title on the debtor. The prior notice is entered on the mortgage register, after which the immovable property cannot be disposed of.

Service of the writ of executorial attachment can only be performed 15 days after service of the prior notice on the debtor. The attachment will have to be registered in the mortgage register within 15 days.

After an attachment has been entered on the mortgage register, the creditor has one month to file an ex parte application with the court of attachments to request the appointment of a notary to proceed with the auction of the attached property. A challenge may be brought by the debtor no later than one month after service of that order.

According to the BJC, the public auction shall take place within six months of the order appointing the notary (in principle, an appeal by the debtor against the appointment order does not stay the auction process). Meanwhile, the notary gathers information (title deeds, land plans, etc.) and visits the attached immovable property to draw up the terms of sale. These terms have to be served on the interested parties at least one month prior to the first auction session, and can be challenged within eight days of service (on form and substance). Once any dispute on the terms of sale is settled by the court of attachments, the public auction can take place. In principle, the property is allocated to the highest bidder.


Attachment against movable property

30     What is the procedure for enforcement measures against movable property within your jurisdiction?

An executorial attachment of movable property is preceded by service of a prior notice to pay under the penalty of attachment. To save time, service of the prior notice can be made at the same time as service of the enforceable title on the debtor. There must be at least one day between service of the prior notice and the laying of the attachment.

The bailiff will draw up a report describing precisely and in detail the attached movable properties. This report is either given to, or served on, the debtor. The auction shall then take place one month after this service. In principle, movable properties are allocated to the highest bidder.


Attachment against intangible property

31     What is the procedure for enforcement measures against intangible property within your jurisdiction?

Similarly to conservatory garnishments, an attachment writ served on the garnishees must be notified to the debtor within eight days. The debtor has 15 days to challenge the garnishment. Article 1543 of the BJC provides that if a debtor has not filed an appeal against an attachment within the deadline, the garnishees shall transfer the attached monies (their debts towards the principal debtor) up to the amount of the principal claim of the creditor. The monies will be transferred in the hands of the bailiff at the earliest two days after expiry of the 15-day deadline. If the debtor challenges the attachment, any transfer of funds to the bailiff will be stayed until a decision is handed down by the court of attachments.

Enforcement against foreign states


Applicable law

32     Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

The Act of 17 July 1970 implementing the ICSID Convention in Belgium sets out a specific regime applicable to the recognition and enforcement of ICSID arbitral awards (see question 4). Article 3 of the Act of 1970 provides that the Ministry for Foreign Affairs is entitled to validate the authenticity of the awards for recognition and enforcement purposes. This is simply done by presenting a certified copy of the foreign arbitral award (signed and certified by the Secretary General of the ICSID Secretariat) to the competent government ministry. The verified and certified documents are then transmitted by the Ministry of Justice to the Chief Clerk of the Court of Appeal of Brussels to grant the exequatur to the arbitral awards.

There are no other domestic rules that specifically govern recognition and enforcement or arbitral awards against foreign states. If the award is not an ICSID award, the general rules will apply. 


Service of documents to a foreign state

33     What is the applicable procedure for service of extrajudicial and judicial documents to a foreign state?

Unless provided otherwise by a treaty, judicial and extrajudicial documents intended for service on sovereign states are usually served through diplomatic channels.

No specific provision of the BJC governs diplomatic service, which is based on an international custom, recognised and admitted in Belgium. In practice, when judicial and extrajudicial documents are intended for service on sovereign states, they are transmitted by bailiffs to the foreign government through the Belgian Ministry for Foreign Affairs. The Ministry plays a role of intermediary by sending the documents to the Belgian Embassy located in the foreign states. The Embassy then forwards the documents to the competent local authorities. In general, a copy of the judicial and extrajudicial documents is also sent by the Ministry for Foreign Affairs to the diplomatic mission of the foreign state in Belgium, for information purposes. 


Immunity from enforcement

34     Are assets belonging to a foreign state immune from enforcement in your jurisdiction? If yes, are there exceptions to such immunity?

Pursuant to Article 1412 quinquies, Section 2 of the BJC, there are three specific exceptions to immunity from enforcement of assets belonging to a foreign state:

  • the foreign state has ‘explicitly’ consented to enforcement against the assets. The Belgian Constitutional Court determined in 2017 that the requirement that consent also be ‘specific’ (as the law still reads) only applies with regard to diplomatic assets;
  • the foreign state has specifically allocated these assets to the enforcement of the claim that forms the basis of the application for enforcement; or
  • the assets are specifically used or allocated to an economic or commercial activity and are located in Belgium.

The party seeking to enforce against the assets of a foreign state must obtain prior authorisation from an attachment judge, who will determine whether one of the above-mentioned exclusions applies. This is so even if, under the general rules, prior authorisation would not be required.

Otherwise, state immunities are governed by customary international law as interpreted and applied by Belgian courts. Belgium has signed the UN Convention on jurisdictional immunities of states and their property, but that treaty has not yet entered into force.


Waiver of immunity from enforcement

35     Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? If yes, what are the requirements of such waiver?

It is possible for a foreign state to waive its state immunity from enforcement, but such a waiver needs to be explicit.

Assets used or intended to be used for diplomatic purposes, including bank accounts, are covered by a special immunity from enforcement by virtue of customary international law and the 1961 Vienna Convention on Diplomatic Relations. Waiver of diplomatic immunity from enforcement needs to be explicit and specific.

There is little authority on the persons or organs of the state entitled to waive immunity from enforcement. According to legal literature, the issue is governed by the law of the foreign state concerned.


Notes

[1] Hakim Boularbah is a partner, Olivier van der Haegen is a counsel and Jasmine Rayée is a junior associate at Loyens & Loeff.