Magazine article Dispute Resolution Journal

How Eu Law Affects Arbitration and the Treatment of Consumer Disputes: The Belgian Example

Magazine article Dispute Resolution Journal

How Eu Law Affects Arbitration and the Treatment of Consumer Disputes: The Belgian Example

Article excerpt

The ways in which the worlds of European law and arbitration coincide remains a fascinating issue. Instead of extensively outlining the general principles of this subtle interaction, this article mainly focuses on the balance between party autonomy, arbitrator's authority and European public policy as looked at from the concrete perspective of one EU-member state, notably Belgium. The author also reveals how the European consumer policy clearly and directly led to the realization of bodies for consumer arbitration in Belgium that live up to a high standard of efficiency and fairness.

This article examines the points where substantive European community law and national-specifically Belgian-arbitration law meet. The analysis covers party autonomy in defining the powers of arbitrators and the role of the judiciary in enforcing European law.1 It also addresses consumer arbitration and the degree to which procedural recommendations made by the European Commission (EC) have been met by Belgian consumer arbitration institutions.

It is worth noting at the outset that in an international community where arbitration is a common means of adjudicating disputes, there is hardly any explicit reference to arbitration procedures in the European Economic Community (EEC) treaty or any other binding EC instrument. One could infer from this striking omission that EC legislators decided that national authorities of member countries should have discretionary power to draw up their own procedural arbitration rules. However, this does not rule out the possibility that issues to be settled by arbitration may come within the purview of EC law, as in fact has occurred in Belgium and other EC countries. EC members have a moral obligation not to disregard recommendations by the EC. So when EC law-related issues arose in die Belgian arbitrations, some were dealt with by the competent authorities on the EC level while others were addressed on the national level by the courts.

I. Legal Framework of Belgian Arbitration

The Belgian legal framework governing arbitration is based on both national law and international treaties. There are also a number of arbitration institutions that operate within this legal framework, which have their own regulations.

Belgium's arbitration statute is found in Articles 1676 to 1723 of the Belgian Judicial Code (BJC), enacted by the law of July 4, 1972.2 By adopting this law, Belgium agreed to implement the model law annexed to the Strasbourg Convention of 1966.' This Convention was realized under the aegis of the Council of Europe and was intended to create uniformity in the laws of arbitration so as to ensure a better adjudication of international commercial disputes in Europe.4 However, Austria and Belgium were the only countries to sign the Strasbourg Convention and only Belgium ratified and enacted it.5 Many other European countries enacted the United Nations Commission on International Trade Law's Model Law on International Commercial Arbitration (UNCITRAL Model Law). Inspired by foreign arbitration legislation and the UNCITRAL Model Law,6 in 1998, Belgium amended its arbitration law, modernizing its procedures and adapting them to the requirements of contemporary national and international arbitration.7 The 1998 amendments were intended to promote Belgium as a center of transnational arbitration and make up lost ground from having taken a rather isolated position.8

Belgium participates in bilateral9 and multilateral treaties10 that call for the use of arbitration, including the 1958 United Nations Convention oil the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).11 As a result of its participation in the New York Convention, Belgium pledged itself to a simplified enforcement procedure for foreign arbitral awards and gained assurance that Belgian awards would be recognized and enforced in the 134 signatory countries.

Belgium has more than 30 arbitration institutions, each with its own regulations. …

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