1.What is the status of the ECT in Belgium?
Belgium is a party to the ECT (at the time these questions were answered), in force since 6 August 1998. However, the Belgian government has recently voiced its intent to withdraw from the ECT.
2. How are foreign investments in Belgium or made by investors protected under other bilateral and multilateral investment treaties?
Belgium is a Contracting State of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (1965, Washington), known as the ICSID or Washington Convention, in force since 26 September 1970.
Belgium concluded approximately 100 bilateral investment treaties ("BITs") between 1964 and 2010, most of which were signed within the framework of the Belgo–Luxembourg Economic Union ("BLEU"). These BITs have mainly been concluded with countries that are not members of the Organisation for Economic Cooperation and Development (OECD). While most of the BITs remain in force today, nearly 20 have not entered into force and a further 10 were terminated (and sometimes replaced).
The 2002 BLEU Model BIT is usually offered by the Belgo–Luxembourg Economic Union to the prospective third state for approval. This model was replaced in 2019, but Belgium has not concluded any BITs since 2010 (as external trade policy became an exclusive competence of the European Union). The new model text fits in with the transition policy towards a European and multilateral approach to investment protection. The text lists the principles of the reformed European investment protection policy, strengthens the sustainability principles and reinstates the phased-out provisions for the dispute settlement mechanism based on arbitration, thereby supporting the establishment of a Multilateral Investment Court.
Almost every BIT contains a specific investor-state dispute settlement mechanism, usually providing for international arbitration:
- before an ad-hoc arbitral tribunal sitting under the United Nations Commission on International Trade Law (UNCITRAL) Rules;
- before the International Centre for Settlement of Investment Disputes (ICSID), Belgium having ratified the ICSID Convention;
- under the Arbitration Rules of the International Chamber of Commerce; or
- under the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce.
As an EU Member State, Belgium is also bound by investment treaties concluded by the EU on behalf of its member states, such as the Comprehensive Economic and Trade Agreement with Canada (ratification pending).
3. Does Belgium have domestic legislation dedicated to protection of foreign investments?
Belgium does not have domestic legislation specifically dedicated to the protection of foreign investments. However, Belgium adopted a foreign investment control mechanism for non-EU investment which should be applicable as from 1 January 2023.
4. Does Belgium enter into investment agreements with foreign investors offering specific protections?
Belgium has entered into a number of investment agreements, for instance with nuclear energy operators. The specific provisions of such agreements are covered by confidentiality clauses.
Belgium has no special economic zones.
5. Does Belgium have any sector-specific foreign investment incentive laws that offer additional protections?
No, Belgium has no sector-specific foreign investment incentive laws that offer additional protections.
6. What kind of protections foreign investments can benefit from under the general principles of law?
Investors may rely on a range of protections not specific to foreign direct investments, but generally available under domestic Belgian law.
This includes Article 16 of the Belgian constitution and the corresponding jurisprudence, affording protections in case of expropriation or actions tantamount to expropriation. Such actions must be in the public interest, must be proportionate and there must be appropriate compensation. These protections also apply to non-Belgian legal entities.
Articles 10 and 11 of the Belgian Constitution also protects investors from discrimination.
Remedy may also be available under domestic law on governmental liability. State action can be challenged before domestic courts. Constitutional review is ultimately provided by the Constitutional Court.
As an EU Member State and member of the Council of Europe, the protections available within the EU framework and under the ECHR, both described above, are available in Belgium.
7. Are foreign investors and foreign investments subject to different treatment before the national courts?
A foreign investor can expect to be given treatment no different than the one afforded to local investors before national courts.
Belgium adopted a foreign investment control mechanism for non-EU investment, which should be applicable as from 1 January 2023.
8. Is international arbitration a recognised form of dispute resolution between the foreign investor and a host State?
Belgium recognises international arbitration as a form of dispute resolution between the foreign investor and the host State, as can be seen from the BITs in force. Belgium is also party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958, New York) and the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (1965, Washington), known as the ICSID or Washington Convention.
Article 1676(3) of the Belgian Judicial Code prohibits public law legal persons to arbitrate disputes which do not relate to an agreement.