Hakim Boularbah is a partner at Loyens & Loeff (Brussels office). He focuses on corporate litigation (class actions, shareholders’ disputes, post-acquisition claims, etc); international arbitration (including proceedings related to arbitration enforcement, setting aside, interim measures, etc) and asset recovery. His expertise has been internationally recognised. Hakim specialises in complex and international dispute resolution. His practice covers civil and corporate litigation and arbitration, especially where it presents an urgent or a cross-border dimension. Hakim is one of the most renowned specialists of collective redress.
What inspired your recent move to Loyens & Loeff?
Over the years, my practice has become increasingly international. There is not a single case I handle that does not involve a party established in a country other than Belgium. I needed to be able to rely on a more integrated and international structure. Today, when I have an arbitration in which Swiss law is applicable, I can call directly on my colleagues in the Zurich office. If I have to make a seizure in Luxembourg, I can count on the support of my Luxembourg colleagues. I also needed to find a firm where my most talented young associates would have the opportunity to develop and grow. As a result, only one year after my arrival, Olivier van der Haegen has already been promoted to partner. Finally, I was looking for a fully integrated structure where the different departments really work hand in hand according to the needs of the case or the client.
How have you seen class action proceedings in Belgium evolve in recent years?
The class action proceedings have evolved towards more and more international cases. The first cases concerned purely internal matters, such as strikes in the railway sector and delays to charter flights. More recently, cross-border cases have increased. The same alleged practice (data breaches, product liability, cartels, etc) is challenged in several countries at the same time. This implies perfect coordination and sharing of information in real time. At all times, the parties, whether plaintiffs or defendants, must be aligned in each of the countries. Otherwise, contradictions or mistakes made in one jurisdiction will be repeated in the others.
In your opinion, what are the main issues that result from sovereign immunity in terms of enforcing arbitration awards?
First, there is a real problem of infringement of the right to enforcement. States have become sophisticated and made it almost impossible to enforce sentences. By housing commercial assets in state-owned companies or sovereign wealth funds, they have shielded themselves from enforcement. Creditors have limited possibilities to circumvent these obstacles. Second, the burden of proof on the party seeking to enforce an award against a state has become very heavy. In systems such as Belgium and France, a creditor seeking to seize state property must first demonstrate that the property is being used for a commercial purpose, even though he or she often has little information in this regard. This also tends to make enforcement against states practically impossible.
How important is sector-specific knowledge and understanding in arbitrations?
Sectoral knowledge is required of all those involved in arbitration: arbitrators, counsel, witnesses and experts. Unlike the courts, which have many different cases to deal with, the arbitrators are all specialised in specific sectors. They also have the time to go into detail on the technical issues particular to those sectors. This is certainly an important added value of arbitration, and allows for more pragmatic decisions that are more in line with the parties’ expectations.
What will be the effect of the incoming regulation on B2B clauses in Belgium?
This new legislation is very poorly drafted, and is a source of insecurity. It will be used by contractual partners who may try to disengage from existing contracts or try to renegotiate them. It will give rise to a large amount of litigation.
What is your approach to handling complex joint venture disputes?
Conflicts related to or involving joint ventures are often caused by a lack of trust. I always try to understand the reasons for this mistrust when I have to deal with such disputes. This allows me to foster settlements that are always preferable given the long-term relationship between partners.
What is the most memorable matter you have worked on to date?
Certainly, the class action brought by the minority shareholders of Fortis that followed the takeover of Fortis Bank by the Belgian state and BNP Paribas in 2008. It was one of the most intensive litigation matters I have ever had to handle, and eventually led to the fall of the Belgian government. The enforcement of the Yukos awards in Belgium has also been quite challenging.
What is the best piece of career advice you have received?
Always think twice; listen to your intuition when it tells you not to do something, or that something could go wrong; and always look thoroughly at all the details!
"He is a court procedures specialist"
"He has superb advocacy skills and great knowledge"
"One of the best practitioners in Brussels"
"He is brilliant"
Hakim Boularbah specialises in the field of complex and international dispute resolution. He is recognised as an expert in civil and commercial litigation and arbitration at national, European and international levels (The Legal 500, Chambers, WWL: Litigation, WWL: Arbitration and WWL: Asset Recovery).
Hakim has broad experience as sole, chair and co-arbitrator, and as counsel, in national and international commercial arbitrations (CEPANI, ICC, OHADA, ad hoc, etc), especially in contract and corporate disputes.
He is frequently appointed as arbitrator by the ICC, CEPANI and the Belgian Courts of First Instance.
Hakim also specialises in all types of court litigation related to arbitration (constitution of arbitral tribunal, challenge of arbitrators, setting aside of arbitral awards, interim and summary measures, document production against third parties, etc).
Hakim is one of the most renowned experts in Belgium when it comes to enforcement of arbitral awards, especially against sovereigns. He recently enforced in Belgium the awards in the Micula and Yukos cases.
In 2018 and 2019, Hakim co-authored the Belgian chapter of Arbitration World and GAR Know How Guide on Challenging and Enforcing Arbitration Awards. He is regularly invited to speak in conferences on international arbitration organised by CEPANI, the IAI and Francarbi.
Hakim is professor of dispute resolution law at the University of Liège. He is the author of numerous books and publications on judicial law, private international law and arbitration.
He holds a law degree (1996) and a PhD (2007) from the University of Brussels (ULB).
Hakim is a Partner at Loyens & Loeff (Brussels office) where he heads up the international litigation and arbitration practice.