b-Arbitra 2025/2

b-Arbitra is the Belgian Review of Arbitration, issued biannually, with publication of judgments, notes and commentaries on arbitration related topics.

In the second edition of 2025, readers will find a selection of case law and scholarly contributions addressing several controversial issues in Belgian arbitration law, as well as commentaries on current developments in international arbitration and ADR.

This dual focus is reflected in the Doctrine Section, which opens with a contribution by Ole Jensen on the emerging regulation of artificial intelligence in international arbitration, covering both soft-law instruments and the EU Artificial Intelligence Act. It is followed by a contribution by Dorothée Vermeiren and Nathan Tulkens, who examine selected issues relating to the validity of arbitration agreements under Belgian law, in light of recent case law. Finally, Arnaud Hoc provides an analysis of the application of the estoppel rule, enshrined in Articles 1679 and 1717, §5 of the Judicial Code, based on four judgments published in this edition.

The Case Law Section begins with two judgments of the Belgian Supreme Court. The first, dated 3 March 2025, reiterates the Court’s established case law on the extent of judicial review to be exercised when ruling on applications to set aside arbitral awards on grounds of public policy violation, offering additional guidance on the practical application of this standard. The second, rendered on 19 May 2025, confirms that the rule laid down in Article 1690, §1 of the Judicial Code—according to which the validity of an arbitration clause is independent of the validity of the main contract—is absolute and admits no exceptions.

We then turn to two judgments of the Brussels Court of Appeal. The first, dated 2 December 2021, addresses a number of questions relating to an objection of jurisdiction based on an arbitration clause contained in a contract governed by foreign law, including the determination of the law applicable to issues such as the timely and valid invocation of the arbitration agreement and the arbitrability of the dispute. The second judgment, rendered on 13 March 2025, illustrates that pathological arbitration clauses cannot always be remedied, and that the circumstances in which a party seeks to rely on such a clause may lead the court to decline its application.

Before returning to Belgian case law, we take a detour through Spain, with a request for a preliminary ruling submitted to the Court of Justice of the European Union by the Madrid Regional High Court on 24 March 2025 in the Cabify España case. The request concerns the compatibility of the “external control” doctrine (excluding substantive review) with the full effectiveness of TFEU competition provisions and, more broadly, with EU public policy. This development is commented on by Stefan Rating.

We then publish five judgments of the Brussels Court of First Instance addressing diverse topics, including:

(i)                  the validity of arbitration agreements in sports,

(ii)                the scope and application of the principle of estoppel,

(iii)               the scope of review based on public policy considerations,

(iv)               the duty to state reasons, and

(v)                the validity of arbitration clauses in consumer contracts, in light of the unfair terms provisions of the Code of Economic Law.

The judgment on this last topic, rendered on 27 March 2025 in setting-aside proceedings, is accompanied by a commentary from Laura Savonet and Guillaume Croisant, who examine the validity of arbitration clauses under the unfair terms regime, in both B2C and B2B contexts.

The Case Law Section concludes with a judgment of the Brussels Enterprise Court of 12 November 2020, confirmed by the Brussels Court of Appeal on 2 December 2021, also published in this edition, which offers valuable guidance on the interpretation of arbitration clauses under Belgian law, and a judgment of the Hainaut Enterprise Court of 26 June 2025, confirming that an arbitration clause in a consumer contract is not per se abusive, while emphasising that the consumer’s explicit consent is essential.

In the Documents Section, we publish the keynote speech Ank Santens delivered at the CEPANI 2025 Annual Meeting, entitled “The Dual Challenge Facing International Arbitration in a Shifting Global Landscape: Increasingly Vital, yet under Unprecedented Threat.” Vanessa Foncke and Laura Coene present the recently adopted UNCITRAL model clauses on specialised express dispute resolution. Finally, Patrick Kileste shares some insights about the usefulness of nonviolent communication as a tool in commercial mediation.

This edition concludes with Charlotte Bastin’s review of the recent book “International Arbitration in Practice.”

For more details, please see the table of contents here.

As always, we invite arbitration practitioners from Belgium and beyond to reach out with interesting judgments relating to arbitration or other forms of ADR. We further encourage anyone who is interested in contributing to b-Arbitra or has comments or suggestions to get in touch with the co-editors-in-chief at maarten.draye@drayelaw.com and sophie.goldman@htgo.be.

The Editors-in-Chief

Maarten Draye and Sophie Goldman