Belgian Code on private international law

14 January 2005

Paul Hermant

On 1 October 2004 the Belgian Code on private international law (the "Code") came into force in Belgium. The Code co-ordinates and modernises existing Belgian rules on private international law in civil and commercial matters which were previously scattered in numerous legal acts or derived from case law. The Code contains rules that determine:

  • when the Belgian courts have jurisdiction in civil or commercial matters
  • whether Belgian or foreign law applies to these matters
  • the conditions under which foreign judgments may be enforceable in Belgium

The Code contains several new rules relating to the jurisdiction of the Belgian courts. However, the importance of these rules and of the Code in general should not be overestimated. In fact, the Code has no impact on any of the Conventions to which Belgium is a party, or the effectiveness of European Union legislation. Neither of these have been integrated into the Code and as such, both supersede it.

One of the most important pieces of legislation that supersedes the Code is Council Regulation no. 44/2001 of 22 December 2000 which concerns jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the "Regulation"). All Member States of the European Union, with the exception of Denmark, are bound by the Regulation. So, if by way of example, a defendant is domiciled in another EU-country (excluding Denmark) the Regulation will, as a general rule, apply instead of the Code. Conversely, if the defendant is domiciled in a non-EU Member State such as the USA, the Code will normally apply.

Some of the new rules in the Code which govern the jurisdiction of the Belgian courts are inspired by the Regulation. Article 8 of the Code, for example, is rooted in Article 6 of the Regulation and provides that a Belgian court which has jurisdiction to hear a matter also has jurisdiction over a counter-claim arising from the same facts or acts as those upon which the original claim is based.

Other rules of the Code, such as Article 11, are more innovative. Article 11 sets out an exceptional ground of jurisdiction in favour of the Belgian courts. In circumstances where, on the basis of any other article of the Code, the Belgian courts would not have jurisdiction, they will, nevertheless, be granted jurisdiction to hear the matter if it is closely connected with Belgium and proceedings abroad appear to be impossible or it is unreasonable to require that such proceeding be brought before a foreign court.

Also of interest is Article 14 which concerns international lis pendens and relates to proceedings brought first before a foreign court and subsequently before a Belgian court between the same parties involving the same cause of action. Under Article 14, the Belgian court may stay its proceedings until the foreign judgment is pronounced. The court will have to take into account the requirements of sound administration of justice and may decline jurisdiction if the foreign judgment can be recognised in Belgium.

The Code is of considerable importance. It provides, for the first time in Belgian history, a repository of almost all the Belgian rules governing which law applies in civil and commercial matters and whether the Belgian courts have jurisdiction in such matters. The Code is, therefore, likely to facilitate international litigation before the Belgian courts. In certain circumstances the Code also allows the Belgian courts to consider the international context of a matter and, exceptionally, even to decline jurisdiction if sound administration of justice requires a matter to be tried by a foreign court. The Code, therefore, constitutes a watershed in the development of Belgian law. The general Belgian principal of law that allowed a claimant to bring a civil or commercial matter before a Belgian court, based solely on the fact that the claimant was a Belgian national, now appears to be well and truly defunct.