1. Articles 1708 and 1680 § 4 of the Judicial Code are to be interpreted strictly and restrictively, so as not to infringe the autonomy of the arbitral tribunal and to respect the exclusion of the merits of the dispute from the jurisdiction of the judge.
2. The wording of articles 1708 and 1680 § 4 of the Judicial Code has an important functional limitation: the measures requested may only concern the taking of evidence. These are only those which aim at obtaining (some) certainty or probability as to the existence, characteristics and/or exact circumstances of a fact, action or set of facts.
3. The prior authorisation of the arbitral tribunal required by Article 1708 Jud. Code does not have any regulatory or restrictive effect on the president of the court of first instance. It is purely a matter of giving permission to a party, not of prescribing what measures the party concerned may or may not request, nor of limiting the president’s discretion and decision-making powers.
b-Arbitra | Belgian Review of Arbitration