Belgium’s Court of Cassation has recently clarified the scope of, and limits to, the jurisdiction of state courts and arbitral tribunals, particularly when interim and conservatory measures are sought.
In contracting an arbitration agreement, parties empower arbitrators to settle disputes arising between them within the agreement’s ambit. They waive the jurisdiction of state courts to rule on the merits of such disputes.
However, in the case of disputes subject to arbitration, circumstances can arise that require urgent action in the form of interim or conservatory measures. These can prove necessary in order to preserve crucial evidence or temporarily to manage the contractual relationship between the parties for the duration of the proceedings.
In a judgment of 27 November 2025, the Court of Cassation has confirmed that both arbitral tribunals and state courts (sitting in summary proceedings) have jurisdiction to order such interim or conservatory measures. This principle is well established and enshrined in article 1683 of the Belgian Judicial Code, which explicitly permits a party to apply for interim or conservatory measures from a state court without this constituting a breach or waiver of the arbitration agreement.
Seeking interim or conservatory measures from state courts can be useful in cases where, say, the arbitral tribunal has not yet been constituted. However, a possible drawback is that the advantages that induced the parties to choose arbitration may not apply when they are seeking interim or conservatory measures from state courts (e.g. confidentiality). For this reason, it can sometimes be appropriate to initiate emergency arbitration proceedings, in which an emergency arbitrator is appointed solely to rule on the interim and conservatory measures. Arbitration institutions, such as the ICC and CEPANI, provide for such emergency procedures.
While choosing arbitration does not fully exclude the role of state courts in disputes governed by arbitration, the Court of Cassation has now set an important limit on the scope of intervention by state courts. Under its 27 November 2025 judgment, Belgian state courts have no power to order the suspension or termination of pending arbitration proceedings. This applies both to proceedings on the merits and to summary proceedings of state courts. Belgian state courts lack such power because the suspension or termination of arbitration proceedings that are pending would constitute an unlawful interference in the jurisdiction of the arbitral tribunal.
