Belgium -
Code Judiciaire 19 May 1998
|
1 |
Article
1676.2
|
2 |
Whosoever has capacity or power to contract may conclude
an arbitration agreement. |
3 |
Subject to the exceptions provided for in the law, public
law legal persons may only conclude an arbitration agreement when the
arbitration agreement relates to the settlement of disputes regarding the
formation or the performance of an agreement. Such an arbitration agreement
is subject to the same conditions regarding its formation as the agreement
whose performance is the subject matter of the arbitration. Furthermore,
public law legal persons may conclude an arbitration agreement in respect of
any matters determined by law or by royal decree deliberated by the Council
of Ministers. This royal decree may also determine the conditions and the
rules to be complied with in relation to the formation of the agreement. |
4 |
Article
1690.
|
5 |
1. Arbitrators may be challenged if circumstances exist
that give rise to justifiable doubts as to their impartiality or
independence. |
6 |
2. A party may challenge an arbitrator only for reasons
of which he becomes aware after the appointment has been made. |
7 |
Article
1693.
|
8 |
1. Without prejudice to the provisions of Article 1694,
the parties may agree on the rules of the arbitral procedure and on the place
of arbitration. |
9 |
Failing such agreement within the time limit fixed by
the tribunal, the decision shall be a matter for the arbitrators. If the
place of arbitration has not been fixed by the parties or the arbitrators,
the place where the award is made as stated in the award shall be deemed to
be the place of arbitration. |
10 |
2. Unless the parties have agreed otherwise, the
arbitral tribunal may, after consultation of the parties, hold hearings and
meetings at any other place which it deems appropriate. |
11 |
3. The chairman of the arbitral tribunal shall regulate
the hearings and conduct the proceedings. |
12 |
Article 1696.
|
13 |
(1) the two following paragraphs are inserted before the
first paragraph: |
14 |
1. Without prejudice to Article 1679.2, the arbitral
tribunal may, at the request of a party, order provisional or protective
measures, with the exception of an attachment order. |
15 |
2. Unless the parties have agreed otherwise, the
arbitral tribunal is free to determine the admissibility of evidence and its
evidentiary weight. |
16 |
(2) the first to fourth paragraphs become paragraphs 3
to 6. |
17 |
Article 1696 bis
|
18 |
1. Any affected third party may request the arbitral
tribunal to intervene in the proceedings. Such request shall be addressed in
writing to the arbitral tribunal which shall communicate it to the parties. |
19 |
2. A party may serve a notice of joinder on a third
party. |
20 |
3. In any event, in order to be admitted, the
intervention of a third party requires an arbitration agreement between the
third party and the parties in dispute. Furthermore, it is subject to the
unanimous consent of the arbitral tribunal. |
21 |
Article 1699.
|
22 |
The arbitral tribunal may render a partial or a final
decision by means of one or more awards. |
23 |
Article 1700.
|
24 |
Unless the parties have agreed otherwise, the arbitrators
shall decide the dispute in accordance with rules of law. |
25 |
When a public law legal person is a party to an
arbitration agreement, the arbitrators shall decide in accordance with rules
of law, without prejudice to specific legal provisions. |
26 |
Article 1702 bis
|
27 |
1. Within thirty days of notification of the award,
unless another period of time has been agreed upon by the parties: |
28 |
(a) party, with notice to the other party, may request
the arbitral tribunal to correct in the award any clerical errors, any errors
in computation, any typographical errors or any errors of similar nature; |
29 |
(b) if so agreed by the parties, a party, with notice to
the other party, may request the arbitral tribunal to give an interpretation
of a specific point or part of the award. If the arbitral tribunal considers
the request to be justified, it shall make the correction or give the
interpretation within thirty days of receipt of the request. The
interpretation shall form an integral part of the award. |
30 |
2. The arbitral tribunal may correct any error of the
type referred to it in paragraph (1) (a) of this Article on its own initiative
within thirty days of the date of the award. |
31 |
3. The arbitral tribunal may extend, if necessary, the
period of time within which it shall make a correction or an interpretation
of the award under paragraph (1) of this article. |
32 |
4. The provisions of Article 1701 shall apply to a
correction or interpretation of the award. |
33 |
5. When the arbitral tribunal can no longer be convened,
the request for interpretation or correction of the award must be made before
the Court of First Instance whose President is competent to grant exequatur
in accordance with the rules of jurisdiction provided for in Articles 1717
and 1719.2. |
34 |
Article 1703.2
|
35 |
An appeal against an arbitral award may only be made if
the parties have expressly provided for such a possibility in the arbitration
agreement. Unless the parties have agreed otherwise, such an appeal must be
lodged within one month of the date of notification of the award. |
36 |
Article 1709 bis
|
37 |
The arbitrators may impose a fine on a party for
non-compliance. Articles 1385 bis to octies are applicable mutatis mutandis. |
38 |
Article 1717.
|
39 |
(1) Paragraph 3 is deleted. |
40 |
(2) New paragraph 4 reads as follows: |
41 |
The parties may, by an express statement in the
arbitration agreement or by a subsequent agreement, exclude any application
to set aside the arbitral award where none of the parties is either an
individual of Belgian nationality or residing in Belgium, or a legal person
having its head office or a branch there. |
42 |
Code
judiciaire Belge: sixième partie - L'arbitrage (Articles 1676 à
1723)
|
43 |
Article 1676
|
44 |
1. Any dispute which has arisen or may arise out of a
specific legal relationship and in respect of which it is permissible to compromise
may be the subject of an arbitration agreement. |
45 |
2. With the exception of legal persons of public law,
whosoever has the capacity or is empowered to compromise, may conclude an arbitration
agreement. The state may conclude such an agreement when a treaty authorizes
it to have recourse to arbitration. |
46 |
3. The preceding provisions are applicable without
prejudice to the exceptions provided for in the law. |
47 |
Article 1677
|
48 |
An arbitration agreement shall be constituted by an
instrument in writing signed by the parties or by other documents binding on
the parties and showing their intention to have recourse to arbitration. |
49 |
Article 1678
|
50 |
1. An arbitration agreement shall not be valid if it
gives one of the parties thereto a privileged position with regard to the
appointment of the arbitrator or arbitrators. |
51 |
2. Without prejudice to the exceptions provided for in
the law, an arbitration agreement concluded before a dispute has arisen,
which dispute falls within the competence of the Labour Tribunal as
determined in Articles 578 to 583 ( tribunal du travail ) is ipso jure null. |
52 |
Article 1679
|
53 |
1. The judge seized of a dispute which is the subject of
an arbitration agreement shall, at the request of either party, declare that
he has no jurisdiction, unless, insofar as concerns the dispute, the
agreement is not valid or has terminated: this exception must be proposed in
limine litis. |
54 |
2. An application to the judicial authority for
preservation or interim measures shall not be incompatible with an
arbitration agreement and shall not imply a renunciation of the agreement. |
55 |
Article 1680
|
56 |
An arbitrator may be any person who has the capacity to
contract, except minors even when no longer under parental supervision,
persons under guardianship and those who are either permanently or temporarily
excluded from the right to vote. |
57 |
Article 1681
|
58 |
1. The arbitral tribunal shall be composed of an uneven
number of arbitrators. There may be a sole arbitrator. |
59 |
2. If the arbitration agreement provides for an even
number of arbitrators, an additional arbitrator shall be appointed. |
60 |
3. If the parties have not settled the number of
arbitrators in the arbitration agreement and do not agree on the number, the
arbitral tribunal shall be composed of three arbitrators. |
61 |
Article 1682
|
62 |
The parties may, either in the arbitration agreement or
subsequently thereto, appoint the sole arbitrator or the arbitrators or
entrust the appointment to a third person. If the parties have not appointed
the arbitrators and have not agreed on a method of appointment, each party
shall, when the dispute arises, appoint an arbitrator or an equal number of
arbitrators, as the case may be. |
63 |
Article 1683
|
64 |
1. The party who intends bringing a dispute before an
arbitral tribunal shall give notice to the other party. The notice shall
refer to the arbitration agreement and specify the subject-matter of the
dispute, unless the arbitration agreement already does so. |
65 |
2. If there is more than one arbitrator, and if the
parties are entitled to appoint them, the notice shall specify the arbitrator
or arbitrators appointed by the party invoking the arbitration agreement; the
other party shall be invited, in the notice, to appoint the arbitrator or
arbitrators whom he is entitled to appoint. |
66 |
3. If a third person has been entrusted with the
appointment of a sole arbitrator or of arbitrators and has not done so, he
also shall be given notice in accordance with paragraph 1 and invited to make
the appointment. |
67 |
4. The appointment of an arbitrator may not be withdrawn
after notification of the appointment. |
68 |
Article 1684
|
69 |
1. If the party or third person to whom notice has been
given in accordance with Article 1683 has not, within a period of one month
from the notice, appointed the arbitrator or arbitrators whom the party or
third person is entitled to appoint, the President of the Court of First
Instance shall make the nomination at the request of either party. |
70 |
If the parties have agreed that there shall be a sole
arbitrator and they have not appointed him by mutual consent within a period
of one month from the notice under Article 1683, the appointment shall be
made as determined in paragraph 1. |
71 |
Article 1685
|
72 |
1. Where the arbitrators appointed or nominated in
accordance with the foregoing provisions are even in number, they shall
nominate another arbitrator to be president of the arbitral tribunal. If they
do not agree and if the parties have not provided otherwise, the President of
the Court of First Instance shall make the necessary nomination at the
request of either party. The President may be seized after the expiration of
a period of one month from the acceptance of his office by the last
arbitrator or as soon as the failure to agree is established. |
73 |
2. Where the arbitrators appointed are uneven in number
they shall nominate one of themselves to be president of the arbitral
tribunal unless the parties have agreed on another method of appointment. If
the arbitrators do not agree, the nomination shall be made according to
paragraph 1. |
74 |
Article 1686
|
75 |
1. In the case dealt with under Articles 1684 and 1685,
the decision taken by the President of the Court of First Instance is not
subject to any other means of recourse. |
76 |
2. The President's decision does not prejudice either
the arbitrator's power to rule in respect of their own jurisdiction, or a
party's right to invoke the arbitral tribunal's lack of jurisdiction. |
77 |
Article 1687
|
78 |
1. If an arbitrator dies or cannot for a reason of law
or fact perform his office, or if he refuses to accept it or does not carry
it out, or if his office is terminated by mutual agreement of the parties, he
shall be replaced in accordance with the rules governing his appointment or
nomination. However, if the arbitrator or arbitrators are named in the
arbitration agreement, the agreement shall terminate ipso jure. |
79 |
2. A disagreement arising out of any case envisaged in
paragraph 1 shall be brought before the Court of First Instance on the
application of one of the parties. If the Court decides that there are
grounds for replacing the arbitrator, it shall nominate his successor, taking
into account the intention of the parties, as appearing from the arbitration
agreement. |
80 |
3. The parties may derogate from the provisions of this
Article. |
81 |
Article 1688
|
82 |
Unless the parties have agreed otherwise, neither the
arbitration agreement nor the office of arbitrator shall be terminated by
death of one of the parties. |
83 |
Article 1689
|
84 |
The arbitrator who has accepted his office may not
resign, unless so authorized by the Court of First Instance at his request.
The Court decides after parties have been heard or summoned under judiciary
notice (sous pli judiciaire ) by the clerk of the court (greffier ). The
Court's decision is not subject to any other means of recourse. |
85 |
Article 1690
|
86 |
1. Arbitrators may be challenged on the same grounds as
judges. |
87 |
2. A party may not challenge an arbitrator appointed by
him except on a ground of which the party becomes aware after the
appointment. |
88 |
Article 1691
|
89 |
1. The challenge shall, as soon as the challenger
becomes aware of the ground of challenge, be notified to the arbitrators and,
where applicable, to the third person who has, in pursuance of the
arbitration agreement, appointed the arbitrator challenged. The arbitrators
shall thereupon suspend further proceedings. |
90 |
2. If, within a period of ten days of the notice of the
challenge being given to him, the arbitrator challenged has not resigned, the
arbitral tribunal shall so notify the challenger. The challenger shall, on
pain of being barred, summon the arbitrator and the other parties to the
Court of First Instance, within a period of ten days after receiving such
notification, otherwise the proceedings before the arbitrators shall be ipso
jure resumed. The appeal against the decision taken by the Court of First Instance
will be judged according to Articles 843 to 847 of this Code. |
91 |
3. If the arbitrator resigns or if the challenge is
upheld by the judge, the arbitrator shall be replaced in accordance with the rules
governing his appointment or nomination. However, if he has been named in the
arbitration agreement, the agreement shall terminate ipso jure. The parties
may derogate from the provisions of this paragraph. |
92 |
Article 1692
|
93 |
1. The parties may in the arbitration agreement exclude
certain categories of persons from being arbitrators. |
94 |
2. If such an exclusion has been disregarded with
respect to the composition of the arbitral tribunal, the irregularity shall be
invoked in accordance with the provisions of Article 1691. |
95 |
Article 1693
|
96 |
1. Without prejudice to the provisions of Article 1694,
the parties may decide on the rules of the arbitral procedure and on the
place of arbitration. If the parties do not indicate their intention before
the first arbitrator has accepted his office, the decision shall be a matter
for the arbitrators. |
97 |
2. The president of the arbitral tribunal shall regulate
the hearings and conduct the proceedings. |
98 |
Article 1694
|
99 |
1. The arbitral tribunal shall give each party an
opportunity of substantiating his claims and of presenting his case. |
100 |
2. The arbitral tribunal shall make an award after oral
proceedings. The parties may validly be summoned by registered letter, unless
they have agreed upon any other method of summons. The parties may appear in
person. |
101 |
3. The procedure shall be in writing where the parties
have so provided or insofar as they have waived oral proceedings. |
102 |
4. Each party shall have the right to be represented by
a lawyer or by a representative, in possession of a special power of attorney
in writing, approved by the arbitral tribunal. Each party may be assisted by
a lawyer or any person of his choice, approved by the arbitral tribunal.
Parties may not be represented or assisted by an agent d'affaires. 1 |
103 |
Article 1695
|
104 |
If, without legitimate cause, a party properly summoned
does not appear or does not present his case within the period fixed, the
arbitral tribunal may, unless the other party requests an adjournment,
investigate the matter in dispute and make an award. |
105 |
Article 1696
|
106 |
1. The arbitral tribunal may order a hearing of
witnesses, an appraisal by experts, a visit to the site, the appearance of
parties in person; the arbitral tribunal may accept an oath as being decisive
or may request a supplementary oath. It may also order the production of
documents held by a party according to the conditions provided in Article 877
of this code. |
107 |
2. When the arbitral tribunal has ordered a hearing,
and the witnesses do not appear voluntarily or refuse to take the oath or to
testify, the arbitral tribunal will authorize the parties, or one of them, to
request the Court of First Instance, within a fixed period, to appoint a
juge-commissaire, to preside over the investigation. This hearing will take
place according to the formalities for civil cases. The periods for
arbitration are ipso jure suspended until the hearing is completed. |
108 |
3. The arbitral tribunal may not order the verification
of signatures nor rule on an objection relating to the production of
documents or upon the alleged falseness of documents. In this case, it will
leave it to the parties to bring the matter to the Court of First Instance
within a determined period. |
109 |
4. The periods for arbitration are ipso jure suspended
until the day the tribunal receives notification by the most diligent party
of the final decision concerning the incident. |
110 |
Article 1697
|
111 |
1. The arbitral tribunal may rule in respect of its own
jurisdiction and for this purpose, may examine the validity of the
arbitration agreement. |
112 |
2. A ruling that the contract is invalid shall not
entail ipso jure the nullity of the arbitration agreement contained in it. |
113 |
3. The arbitral tribunal's ruling that it has
jurisdiction may not be contested before the judicial authority except at the
same time as the award on the main issue and by the same procedure. The
judicial authority may at the request of one of the parties decide whether a
ruling that the arbitral tribunal has no jurisdiction is well founded. |
114 |
4. The appointment of an arbitrator by a party shall
not deprive that party of his rights to challenge the jurisdiction of the
arbitral tribunal. |
115 |
Article 1698
|
116 |
1. The parties may, up to the time of acceptance of
office by the first arbitrator, settle the period within which the award is
to be made or provide for a method according to which the period is to be
settled. |
117 |
2. If the parties have not prescribed a period or a
method of prescribing a period, if the arbitral tribunal delays in making the
award and if a period of six months has elapsed from the date on which all
the arbitrators accepted office in respect of the dispute submitted to
arbitration, the Court of First Instance may, at the request of one of the
parties, stipulate a period for the arbitral tribunal. The Court's decision
is not subject to any means of recourse. |
118 |
3. The office of arbitrator shall terminate if the
award is not made within the relevant period unless that period is extended
by agreement between the parties. |
119 |
4. Where arbitrators are named in the arbitration
agreement and the award is not made within the relevant period, the
arbitration agreement shall terminate ipso jure, unless the parties have
agreed otherwise. |
120 |
Article 1699
|
121 |
Except where otherwise stipulated, an arbitral tribunal
may make a final award in the form of one or more awards. |
122 |
Article 1700
|
123 |
The arbitrators shall make their awards in accordance
with the rules of law unless the contrary has been stipulated. To be valid,
such stipulation must be made after the notification provided for in Article
1683. |
124 |
Article 1701
|
125 |
1. An award shall be made after a deliberation in which
all the arbitrators shall take part. The award shall be made by an absolute
majority of votes, unless the parties have agreed on another majority. |
126 |
2. The parties may also agree that, when a majority
cannot be obtained, the president of the arbitral tribunal shall have a
casting vote. |
127 |
3. Except where otherwise stipulated, if the
arbitrators are to award a sum of money, and a majority cannot be obtained
for any particular sum, the votes for the highest sum shall be counted as
votes for the next highest sum until a majority is obtained. |
128 |
4. An award shall be set down in writing and signed by
the arbitrators. If one or more of the arbitrators are unable or unwilling to
sign, the fact shall be recorded in the award. However, the award shall bear
a number of signatures which is at least equal to a majority of the
arbitrators. |
129 |
5. An award shall, in addition to the operative part,
contain the following particulars: |
130 |
(a) the names and permanent addresses of the
arbitrators; |
131 |
(b) the names and permanent addresses of the parties; |
132 |
(c) the subject-matter of the dispute; |
133 |
(d) the date on which the award was made; |
134 |
(e) the place of arbitration and the place where the
award was made. |
135 |
6. The reasons for an award shall be stated. |
136 |
Article 1702
|
137 |
1. The president of the arbitral tribunal shall give
notice to each party of the award by sending him a copy thereof, signed in
accordance with paragraph 4 of Article 1701. |
138 |
2. The president of the arbitral tribunal shall deposit
the original of the award with the registry of the court having jurisdiction;
he shall notify the parties of the deposit. |
139 |
3. The arbitrators' office ends when the award terminating
the litigation has been notified and deposited according to the preceding
provisions. |
140 |
Article 1703
|
141 |
Unless the award is contrary to ordre public or the
dispute was not capable of settlement by arbitration, an arbitral award has
the authority of res judicata when it has been notified in accordance with
paragraph 1 of Article 1702 and may no longer be contested before the
arbitrators. |
142 |
Article 1704
|
143 |
1. An arbitral award may be contested before a judicial
authority only by way of an application to set aside and may be set aside
only in the cases mentioned in this Article. |
144 |
2. An arbitral award may be set aside: |
145 |
(a) if it is contrary to ordre public; |
146 |
(b) if the dispute was not capable of settlement by
arbitration; |
147 |
(c) if there is no valid arbitration agreement; |
148 |
(d) if the arbitral tribunal has exceeded its
jurisdiction or its powers; |
149 |
(e) if the arbitral tribunal has omitted to make an
award in respect of one or more points of the dispute and if the points omitted
cannot be separated from the points in respect of which an award has been
made; |
150 |
(f) if the award was made by an arbitral tribunal
irregularly constituted; |
151 |
(g) if the parties have not been given an opportunity
of substantiating their claims and presenting their case, or if there has
been disregard of any other obligatory rule of the arbitral procedure,
insofar as such disregard has had an influence on the arbitral award; |
152 |
(h) if the formalities prescribed in paragraph 4 of
Article 1701 have not been fulfilled; |
153 |
(i) if the reasons for the award have not been stated; |
154 |
(j) if the award contains conflicting provisions. |
155 |
3. An award may also be set aside: |
156 |
(a) if it was obtained by fraud; |
157 |
(b) if it is based on evidence that has been declared
false by a judicial decision having the force of res judicata or on evidence
recognised as false; |
158 |
(c) if, after it was made, there has been discovered a
document or other piece of evidence which would have had a decisive influence
on the award and which was withheld through the act of the other party. |
159 |
4. A case mentioned in sub-paragraph (c), (d) or (f) of
paragraph 2 shall be deemed not to constitute a ground for setting aside an
award where the party availing himself of it had knowledge of it during the
arbitration proceedings and did not invoke it at the time. |
160 |
5. Grounds for the challenge and exclusion of
arbitrators provided for under Articles 1690 and 1692 shall not constitute
grounds for setting aside within the meaning of paragraph 2 (f) of this
Article, even when they become known only after the award is made. |
161 |
Article 1705
|
162 |
If there are grounds for setting aside any part of an
award, that part shall be set aside only if it can be separated from the
other parts of the award. |
163 |
Article 1706
|
164 |
1. The grounds for setting aside an arbitral award
shall, on pain of being barred, be put forward by the party concerned in one
and the same proceedings, except, however, in the case of a ground for setting
aside provided for in paragraph 3 of Article 1704 where the ground is not
known until later. |
165 |
2. An application to set aside an award shall be
admissible only where the award may no longer be contested before
arbitrators. |
166 |
Article 1707
|
167 |
1. An application to set aside an award, based on one
of the grounds provided for in paragraph 2 (c) to (j), of Article 1704 shall,
on pain of being barred, be made within a period of three months from the date
on which the award was notified. However, that period shall begin to run only
from the date on which the award is no longer capable of contestation before
arbitrators. |
168 |
2. The defendant in an application to set aside an
award may apply, in the same proceedings, for the award to be set aside, even
if the period laid down in paragraph 1 has expired. |
169 |
3. An application to set aside an award, based on one
of the grounds provided for in paragraph 3 of Article 1704, shall be made
within a period of three months from either the date of the discovery of the
fraud, document or other piece of evidence, or the date on which the evidence
was declared false or recognised as false, provided that a period of five
years from the date on which the award was notified in accordance with
paragraph 1 of Article 1702 has not expired. |
170 |
4. The judicial authority seized of an application to
set aside an award shall examine proprio motu whether the award is contrary
to ordre public and whether the dispute was capable of settlement by
arbitration. |
171 |
Article 1708
|
172 |
1. If the arbitral tribunal has forgotten to decide on
one or more points of the dispute that can be separated from the points on
which it has ruled, this tribunal may, if so requested by a party, complete
its award even if the period provided for in Article 1698 has expired, unless
the other party contests that points have been omitted or that the omitted
points can be separated from the points on which a decision has been taken. |
173 |
2. In this case the dispute is brought to the Court of
First Instance by the most diligent party. The court refers the parties back
to the arbitral tribunal in order to complete the award, if it decides that
the omitted points can be separated from the points on which the arbitral
tribunal has taken a decision. |
174 |
Article 1709
|
175 |
The arbitrators may order provisional execution of
their awards notwithstanding appeal and without prejudice to the rules of
" cantonnement ". They may also subject the provisional execution
to the establishment of a guarantee according to the rules of this Code. |
176 |
Article 1710
|
177 |
1. The arbitral award may be enforced only after the
enforcement formula has been apposed by the President of the Court of First
Instance, on the application of the interested party. The party against whom
enforcement is sought, cannot present his views at this stage of the
procedure. |
178 |
2. The President may only appose the enforcement
formula on the award when the award is no longer capable of being contested
before the arbitrators or if arbitrators have granted provisional enforcement
notwithstanding appeal. The President's decision is enforceable
notwithstanding any recourse without prejudice to the application of Article
1714. |
179 |
3. The President shall refuse the application if the
award or its enforcement is contrary to ordre public or if the dispute was
not capable of settlement by arbitration. |
180 |
4. Within the five days following the making of the
award, the decision is notified, under judiciary cover ( sous pli judiciaire
) by the clerk of the court (greffier ) to the petitioner. |
181 |
Article 1711
|
182 |
1. If the application is denied, the petitioner may
give notice of appeal to the Court of Appeal within a period of one month
from notification. Appeal is notified to the party against whom enforcement
is sought by a notification by means of a summons served by a bailiff (par
exploit d'huissier ). |
183 |
2. If this party seeks to secure the setting aside of
the award without having previously made application for this, this party
must on pain of being barred, make this application before the Court of First
Instance, within a period of one month from the date of the service of the
act of appeal. The court of appeal stays proceedings until a final judgment
has been rendered concerning the application to set aside the award. |
184 |
Article 1712
|
185 |
1. The decision granting exequatur must be served by
the party who has applied for it to the other party. This decision is subject
to an appeal brought before the Court of First Instance within a period of
one month from the date on which the service has been made. |
186 |
2. A party exercising this right of appeal and who
seeks to secure the setting aside of the award without having previously made
an application for this shall, on pain of being barred, make his application
in the same proceedings and within the period prescribed in paragraph 1. A
party who, while not exercising the right of appeal provided for in paragraph
1, seeks to secure the setting aside of an award shall, on pain of being
barred, make his application for setting aside within the period prescribed
in paragraph 1. |
187 |
Article 1713
|
188 |
1. In the cases dealt with under Articles 1711 and
1712, the applications for setting aside based on the lack of a valid
arbitration agreement are not subject to the period prescribed in paragraph 1
of Article 1707. |
189 |
2. Without prejudice to the provisions of paragraph 3
of Article 1707, if, a party has become aware of one of the grounds for
setting aside mentioned in paragraph 3 of Article 1704 only after the
decision granting or refusing enforcement has been served upon him, that
party may apply for the setting aside of the award on this ground, even if
the period prescribed in Article 1711 and 1712 has expired. |
190 |
Article 1714
|
191 |
1. In the case either of an appeal against the decision
apposing an enforcement formula to an award or of an application for an award
to be set aside, the judge may, at the request of one of the parties, order
the enforcement of the award to be stayed, or that enforcement will depend on
the constitution of a guarantee. |
192 |
2. A decision apposing an enforcement formula to an
award shall be without effect to the extent that the arbitral award has been
set aside. |
193 |
Article 1715
|
194 |
1. Where, before an arbitral tribunal, a compromise has
been entered into between the parties in order to put an end to a dispute of
which the tribunal is seized, that compromise may be recorded in an
instrument prepared by the arbitral tribunal and signed by the arbitrators as
well as by the parties. The instrument shall be subject to the provisions of
paragraph 2 of Article 1702. The instrument may, on the application of the
interested party, have an enforcement formula apposed to it by the President
of the Court of First Instance. |
195 |
2. The President of the Court of First Instance shall
refuse the application if the compromise or its enforcement is contrary to
ordre public or if the dispute was not capable of settlement by arbitration. |
196 |
3. Within the five days following its pronouncement the
decision is notified, under judiciary cover ( sous pli judiciaire ) by the
clerk of the court (greffier ) to the petitioner. |
197 |
Article 1716
|
198 |
1. The decision apposing an enforcement formula to an
instrument recording a compromise must be served by the party who has applied
for it to the other party. This decision is open to appeal before the Court
of First Instance within a period of one month from the date it was served. |
199 |
2. If the application is denied, the petitioner may
give notice of appeal according to Article 1711. |
200 |
3. The decision apposing an enforcement formula to an
instrument recording a compromise is void to the extent the compromise has
been annulled. |
201 |
Article 1717
|
202 |
1. Except in the case provided for in paragraph 2 of
Article 1719, the court that is competent to apply part VI of this Code is
the court designated by the arbitration agreement or in a later agreement,
concluded before the designation of the place of arbitration. |
203 |
2. If the parties have reached no agreement, the court
of the place of arbitration has jurisdiction. If no place of arbitration has
been designated, that court has jurisdiction in whose district the court is
situated that would have been competent if the dispute had not been submitted
to arbitration. |
204 |
3. All this without prejudice to the provisions of
Article 630 of this Code and international conventions. |
205 |
4. The Belgian Court can take cognizance of an application
to set aside only if at least one of the parties to the dispute decided in
the arbitral award is either a physical person having Belgian nationality or
residing in Belgium, or a legal person formed in Belgium or having a branch
(une succursale ) or some seat of operation (un siège quelconque
d'opération ) there. * |
206 |
Article 1718
|
207 |
1. Where the appeal from a judgment of the Court of
First Instance or of the Court of Commerce has been submitted to arbitration
the arbitral award can only be enforced after the Court of Appeal has granted
the enforcement formula, the party against whom execution is sought having
been summoned. |
208 |
2. If this party seeks to secure the setting aside of
the award without having previously introduced a petition for this purpose,
he must introduce his application to set aside during the same proceedings,
on pain of being barred, without prejudice to the provisions of Article 1713.
|
209 |
3. The decisions taken by the Court of Appeal are not
subject to appeal. |
210 |
Article 1719
|
211 |
1. The President of the Court of First Instance
decides, upon request, on the petition for exequatur of arbitral awards rendered
abroad in pursuance of an arbitration agreement. |
212 |
2. The petition is brought before the President of the
Court of First Instance in whose jurisdiction the party against whom
enforcement is sought has its domicile, and in default of domicile, its
residence. If this party has neither domicile nor residence in Belgium, the
petition will be brought to the President of the Court of First Instance of
the place where the award must be enforced. |
213 |
3. The petitioner elects domicile in the Court's
district. |
214 |
4. He joins to the request the original of the award as
well as the arbitration agreement or copies thereof which fulfil the necessary
conditions as to their authenticity. |
215 |
5. The President of the Court verifies the petition and
may for this purpose, summon the petitioner and the party against whom
enforcement is sought to his chambers ( en chambre du conseil ). The writ of
summons is served to the parties under judiciary cover (sous pli judiciaire )
by the clerk of the court (greffier ). |
216 |
Article 1720
|
217 |
Within the five days following its pronouncement, the
decision of the President of the Court of First Instance is notified, under
judiciary cover (sous pli judiciaire ) by the clerk of the court (greffier )
to the petitioner. |
218 |
Article 1721
|
219 |
If the application is denied, the petitioner may give
notice of appeal to the Court of Appeal within a period of one month from
notification of the decision. This appeal is introduced by service of a
bailiff to the party against whom enforcement is sought containing a summons
to appear before the court. |
220 |
Article 1722
|
221 |
The decision granting exequatur must be served by the
party who has applied for it to the other party. This decision may be appealed
to the Court of First Instance within a period of one month from the date on
which it has been served. |
222 |
Article 1723
|
223 |
Except when a treaty between Belgium and the country
where the award has been rendered is applicable, the President refuses to
grant exequatur: |
224 |
1. if the arbitral award is still open to appeal before
the arbitrators and if the arbitrators have not ordered provisional
enforcement notwithstanding appeal; |
225 |
2. if the award or its enforcement is contrary to ordre
public, or if the dispute is not capable of settlement by arbitration; |
226 |
3. if there exists a ground for setting aside as
provided in Article 1704. |
227 |