Arbitration vs. “regular” courts: no watertight partitions

The course of an arbitral proceeding is autonomous. On the one hand, this is based on the agreement made between parties (in the arbitration clause); on the other, on the agreement between said parties and the arbitration panel (in the terms of reference).

This autonomy is also confirmed by the Belgian Judicial Code (BJC):

• The “regular” judge has to decline his jurisdiction when parties have chosen for arbitration as set forth in a valid arbitration clause (Art. 1682 BJC);
• Arbitrators have the authority to rule on their proper jurisdiction. This is confirmed by the Kompetenz-Kompetenz principle for arbiters (Art. 1690 BJC).

Therefore, there is generally no intervention of the “regular” courts in an arbitral proceeding. However, there are three exceptions.

Exception #1: Remediation of an ineffective arbitral proceeding

The parties’ choices (or lack thereof) to organize the arbitral proceeding lead to an ineffective arbitral proceeding. The BJC provides for the intervention by the “regular” judge to remediate situations such as the non-designation of arbitrators, their replacement, and the fixation of a term to pronounce the arbitral award, among others (Art. 1680 BJC). There is also a general jurisdiction for “regular” courts to provide provisional measures, notwithstanding the merits of the case must be ruled on by arbitration (Art. 1683 BJC).

Exception #2: Limited grounds to set aside an arbitral award

As arbitrators are charged with making legal decisions, the fundamental basics of such decisions have to be respected. Art. 1717 BJC lists an exhaustive list of legal grounds which, when applicable, shall lead to the annulment of an arbitral award by a “regular” judge.

The legal grounds for an annulment are:

• Failure to respect the rights of defense;
• Violation of the public order;
• Absence of a valid arbitration agreement;
• Decision made ultra petita;
• and some others.

Exception #3: the recognition and enforcement of arbitral awards

Intervention by “regular” judges is also called for concerning the recognition and enforcement of arbitral awards. Art. 1720 BJC provides for a simple proceeding that can be introduced by unilateral request. Thereafter, the other party can oppose the decision only by invoking the same limited grounds as those applicable for the annulment of an arbitral award.

Questions about arbitration? 

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