Proposition 53K2743

Projet de loi modifiant la sixième partie du Code judiciaire relative à l'arbitrage.

General information ¶

Submitted by

PS | SP the Di Rupo government

Submission date

April 11, 2013

Official page

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Status

Adopted

Requirement

Simple

Subjects

arbitration civil procedure trade dispute international arbitration

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP ∉ Open Vld N-VA LDD MR VB

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Discussion ¶

May 16, 2013 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, colleagues, I will briefly report on the bill amending the sixth part of the Judicial Code on arbitration.

This bill is based on the preparatory work of CEPINA and the working group under the chairmanship of Mr. Guy Keutgen, Honorary Chairman of CEPINA, as well as many others, including Professor Verbist, who are present here and who have prepared this in a very orderly manner.

On the international level, Belgium is a little behind in the frameworking of the arbitration. Many countries have already reformed their legislation in the light of the Model Law on International Trade Arbitration of the United Nations Commission on International Trade Law – UNCITRAL in English or CNUDCI in French – or are aiming to do so.

So it is also time for Belgium to align its legislation with this progressive legislation on arbitration.

With this reform, Belgium wants to show that it is very explicitly available for arbitration, that international arbitration can also be organized here, that we have a progressive legislation and that we are, in other words, an attractive place for arbitration.

I think all initiatives to arbitration as an alternative, another way to settle disputes are welcome and deserve all support.

Conversely, we must also avoid de-localizing arbitration and going elsewhere to see disputes resolved.

We have amended the Belgian law. There are nine short elements: the clarification of the conditions of objective arbitration; the abolition of the double placement; the confirmation that the arbitration agreements must not be drawn in writing and that the burden of proof of their existence rests on the one who appeals to them; the confirmation that the parties may contractually organize the procedure for the wrapping of arbitrators; the explicit mention of the arrangement for the provisional or preservative measures that may be ordered by the arbitral tribunal; the mention of the equal treatment of the parties and of the loyalty that must be the basis of the debate; the assistance by the ordinary court for the purpose of the proof guarantee; the destruction of an arbitral ruling which can only be made on the basis of a limitative assembly, of course, does not work out of a number of grounds; an arbitration and the conclusion of the arbitration, which can also be brought back to the judicial framework, hopefully, by the special administrative device, which can also be retrieved in the judicial framework.

The relationship between the provisions of arbitration and the other parts of the Judicial Code is not changed.

This bill was welcomed by all political parties. A number of political groups still asked concrete questions about some of the comments of the State Council, which were not followed.

There has also been a debate on the question of how an arbitrator should deal with criminal elements, more specifically, for example, how he should deal with the abuse of money laundering. At the request of the members, a special note has been added to the report on how the arbitrator should act in case of irregularities.

A single amendment was submitted by the N-VA, namely to add as grounds for annulment the absence of a written decision of the Arbitration College. This amendment was qualified by the majority as unnecessary, because in the absence of a letter there is also no decision and therefore it cannot be declared enforceable.

The articles and the whole were unanimously approved by the members present. If the members of Ecolo-Groen were present, they would have supported the design. It was unanimously approved.

Mr. Speaker, I would like to thank you and all the services for cooperating on my report.

Mr. Speaker, Mr. Secretary of State, you are acting in the place of the Minister. However, it will succeed.

As the rapporteur has already outlined, the proposed bill will almost completely replace the current arbitration procedure. The purpose of the draft law is to increase the efficiency and flexibility of the arbitration procedure and thus make our country more attractive to conduct – this may be a crossroads but is a very important element – international labor procedures, especially for entrepreneurs.

The draft law is therefore largely inspired by the Model Law on International Trade Arbitration of the United Nations Commission on International Trade Law. It often even takes over the wording, which is meant to increase its readability and recognition for an international audience.

On a number of points, the proposed legislation is even more progressive – read: more flexible – than the model law, because some best practices from other countries have been incorporated into our law.

We did not just carry out a recovery operation. With this law, we may be at the top of arbitration proceedings.

It is a pity that there is no data available. We do not know how many arbitration procedures have been conducted in the past. Therefore, we cannot estimate to what extent this procedure will really be successful. The procedure is new in terms. We only hope that it will be successful.

We also do not know how much such procedures will cost on average compared to a judicial procedure. After all, it should be the intention that one chooses arbitration rather than a dispute before the court. The question is, therefore, whether the new legislation will sort out effect, but we will see if we hold an evaluation in the committee in a year or two.

Furthermore, it is a missed chance that arbitration — which we consider to be an instrument of alternative dispute resolution — is not seen as a means of removing the judicial downturn. Also during the discussions in the committee it has been shown that in this perspective little is expected of the new arbitration legislation because it would not affect the judicial backwardness. My group hopes that this legislation will have an impact on the judicial lag.

During the discussion in the committee, it was also not clear to what extent the confidentiality or even confidentiality obligation of the appointed arbitrator extends. Or — and that is the other side of the medal — to what extent the obligation to declare lies on him in the event of an offence being revealed in the context of the arbitration procedure. The rapporteur has already mentioned that an expert note was added to the report of this draft law. After reading this note, I still have a few questions and I hope to get an answer at the end of my speech, Mrs. Secretary of State.

The note clearly stipulates that if the arbitrator determines that there is a suspicion of false writing — one establishes this, but one is not yet certain, because ultimately it is a judicial procedure — it is up to the parties to file criminal charges. The arbitrator therefore has no role to play in establishing the crime; he himself apparently cannot take steps. I am asking questions about that. It is stated here that only officials have an obligation to report when establishing a crime, but quid in case of guilty omission? In the committee on sexual abuse in authority positions, we have heard that ultimately everyone has a reporting obligation to end the crime. In case of guilty failure, should the arbitrator act? Mrs. Secretary of State, is it not a hideout that this is not clearly stated in the law?

To our senses, we have put a lot of emphasis here on flexibility, speed and efficiency of the procedure. In some places, this is on a tense foot with the right to contradict.

I will have to refer to a particular article. For example, Article 1680, paragraph 1, of the Judicial Code provides that the chairman of the court of first instance, sitting as in short-term proceedings, may appoint an arbitrator upon unilateral petition of the most defensive party and against it there is no appeal — therefore no appeal — open. This makes it possible to impose an arbitrator on one party by a judge without that party participating in it, or together with the other party to make a choice over the arbitrator. Article 1682, paragraph 2, states that an arbitration proceedings may still be initiated or continued, and an arbitral ruling may be made by an arbitrator who has been revoked. This testifies to the fact that this legislation takes a course with the right to contradict.

Mr. Secretary of State, the rapporteur has already pointed out that we have approved this bill. The reason is that it can be said that this design has a very high quality. It is a solid piece of work that was prepared by various academics. Furthermore, the comments of the State Council were largely taken into account. The discussions in the committee focused on the comments of the State Council, which were not stopped.

I would like to thank the experts for their efforts. This work deserves a plum.

The Secretary of State did not make it easy for us to oppose this. However, we have done our best in the committee and I therefore hope that my comments regarding the establishment of crimes will ⁇ be included in the report, because I hope that we will not face a conflict in the future.

Given the potential positive effects in terms of services and expertise and given the fact that it is a qualitative design, the N-VA is in favour of this bill. We will approve this draft.

Mr. Speaker, I would like to thank both of you on behalf of my colleague, the Minister of Justice, and on behalf of her, for the work done. They have ensured that a framework for arbitration possibilities can now also be created in our country.

As regards Mrs Dumery’s concerns regarding the possible detection of criminal offences, I refer to the annex subsequently added to the report by the Minister of Justice. In paragraph 4, I cite: “In any case, under the penalty of annulment of their arbitral ruling, the arbitrators shall apply the relevant provisions of public order.”

Therefore, there is no need to introduce an additional reporting obligation. The European legislation does not impose such a requirement on arbiters. Like the surrounding countries, for example France, Germany and Italy, we do not want to go beyond what the European legislation requires in this regard.

Mrs. Secretary of State, it is not because other countries do not include in their legislation on the subject that the establishment of a crime must be ⁇ , that we should not have the ambition to impose it. The reporting obligation is imposed on officials; why would it not apply to arbitrators?

We also discussed this in the committee meeting and the different views were opposed. You could not convince me to change my position. It is possible that an arbitrator during a procedure determines that crimes have been committed. In this regard, I think especially of what we have heard in the follow-up committee on abuse. Anyone who knows that there may be victims of a crime should report it. It is not just about tax matters, but about all kinds of crimes that can be established. That the arbitration then cannot continue because it is contrary to public order, I actually find it a bit easy.