As a general rule (unless otherwise contractually agreed), an arbitral award cannot be appealed but may be subject to an annulment action.
In situations where a prior waiver of an annulment action against an arbitral award is permitted under Belgian law, this waiver must be explicitly stated in the arbitration agreement or in a subsequent agreement.
To determine whether a waiver of an annulment action against an arbitral award is possible under Belgian law, a distinction must be made depending on whether the waiver occurs before or after the arbitral award.
Before an arbitral award, parties cannot validly waive the right to an annulment action in the following situations:
- if one of the parties is a natural person holding Belgian nationality or residing or habitually living in Belgium, or
- if one of the parties is a legal entity (such as a company) with its registered office, principal place of business, or a branch in Belgium (Art. 1718 Judicial Code).
This rule aims to protect parties with ties to Belgium from being deprived of the legal safeguards inherent in the annulment procedure for arbitral awards.
This rule is a matter of public order.
In the above two situations, a prior waiver of an annulment action is therefore prohibited. This remains true regardless of whether the substantive right at issue between the parties concerns public order, according to a recent judgment of the Court of Cassation of 8 November 2024.
Once an arbitral award has been rendered, however, Belgian law allows parties, in any situation, to acquiesce to the arbitral award and waive the right to an annulment action. If, however, the substantive right at issue between the parties affects public order, an annulment action will still be possible despite the waiver, according to the same ruling of the Court of Cassation dated 8 November 2024. Consequently, in the case of a waiver after an arbitral award, it is crucial to determine whether the contested substantive right does or does not pertain to public order.
