Resolving Disputes Belgium

03 November 2005

Peter Van de Velde

1. Overview

The dispute resolution procedure in Belgium is, in many respects, one of the most inexpensive in Europe. In practical terms it is very similar to the procedure in The Netherlands and as with procedure in the UK emphasis is placed on the parties reaching settlement as early as possible. Belgian courts, in particular the Brussels courts, as well as Belgian arbitration and mediation centres, have considerable experience with multi-lingual and multi-cultural proceedings.

2. Emergency Relief

In Belgium, an injunction can be obtained requiring a party to do, or to refrain from doing, some act either pre-action or during litigation.

Injunctions can be obtained in two different ways. The first is through the ‘summary proceedings’ route (kortgeding/procédure en référé). The second is through the Belgian ‘procedure in cessation’ (stakingsvordering/procédure en cessation) which allows the court to give a binding decision on the merits of the case as well as granting the injunction. The ‘procedure in cessation’ was originally based on fair trade practices and was open to both consumers and competitors whose interests had been affected through the breach of a legal rule. Its success has led to the development of similar procedures in other sectors. Injunctions granted under this procedure are normally accompanied by severe financial penalties on the defaulting party.

In general, orders under the above procedures can typically be obtained within 3 to 10 weeks, but may also be obtained within 24 hours in matters of extreme urgency. It is also possible under Belgian law to obtain orders to seize and freeze assets (bewarende maatregelen/mesures conservatoires). Such orders can be easily obtained upon unilateral request of the claimant without giving notice to the other party.

All of the above orders can be obtained at a relatively low cost.

3. Process

  • Timing

There has recently been a significant reduction in the length of proceedings under Belgian law. Typically, ‘main proceedings’ (bodemprocedure/procédure au fond) will run for between 6 to 18 months.

  • Courts

Belgium is divided into 27 districts (and 9 sub districts). A claimant commences an action in one of the courts (rechtbanken/tribunaux) of those districts and proceedings are held in either Dutch or French. Specific rules exist for the use of the German language in proceedings in the German speaking part of the country.

Proceedings can take place in the court of first instance (rechtbank van eerste aanleg/tribunal de première instance), the commercial court (rechtbank van koophandel/tribunal de commerce) or the labour court (arbeidsrechtbank/tribunal de travail) depending on the nature of the matter.

  • Interim measures

"Interim" applications to court are also available, such as applications for summary judgment (where one party invites the court to give judgment against the other party prior to trial) (kort geding/référé).

  • Case Management

In Belgium, the courts do not have as many case management powers as they do in the UK. Accordingly, the parties have more power to dictate the pace of the litigation. However, Belgian law provides parties and the courts with a number of ways to force the other party to progress the case. Delaying tactics can therefore be reduced to a minimum. It is also common practice for the court and the parties to agree an ‘agenda’ at the first hearing, allowing the parties to have a general idea of the length of the case.

  • Appeals

Practically all decisions can be appealed. Parties can choose to appeal against the entirety of a decision or alternatively to limit their appeal to certain aspects of the decision. It is also possible under Belgian law in certain circumstances for a new dispute that has risen between the parties and which is related to the original dispute to go straight to appeal.

4. Disclosure

Under Belgian law, parties have no obligation to disclose relevant documents. Parties refrain from disclosing documents or information that could adversely affect their own case. However, if the court thinks it needs more information to come to a decision, it may order a party to make such information available. Non-disclosure of such information may have an impact on the court’s decision but will not, unless it is fraudulent, lead to a penalty.

5. Privilege

Under Belgian law, communications between lawyers are privileged unless they are marked as ‘official’, or the lawyers in question have reached an agreement as to the content of the correspondence. Therefore, most communications between lawyers cannot be used as evidence in court unless otherwise agreed. Communications between in-house legal counsels are also privileged in certain circumstances. This encourages parties to attempt to reach settlement without having to change their position in court.

All communications between a lawyer and his client are privileged.

6. Enforcement of Judgments

Enforcement of judgments in Belgium can be undertaken at a low cost through bailiffs who act as independent professionals on the instructions of their lawyers without any intervention of the courts or any other public authorities.

A Belgian court judgment can be registered and enforced within the EC and EEA countries as if it were a judgment of the courts of those countries.

7. Costs

Litigation costs in Belgium are comparatively low when considered alongside the rest of Europe. Court costs will of course depend upon the value of the claim and/or the number of defendants against whom the action is brought.

The costs incurred through the use of the court and of bailiffs can be recovered by the successful party following trial from the unsuccessful party. Traditionally, the costs of the successful party of obtaining legal advice were not recoverable under Belgium law . However, a judgment of the Supreme Court of 2 September 2004 (in a case concerning a breach of contract) recognised the principle of reversibility of fees and costs of attorneys or technical experts in the framework of a court case. However, a lot of questions remain unsolved and case law on the basis of the new principle is currently developing. A debate is ongoing in Belgium as to whether this new development requires a legislative initiative in order to provide courts and litigating parties with specific guidence in relation to costs.

In any case, the Law of 2 August 2003 on late payments in commercial transactions entitles the creditor of a commercial debt to claim a reasonable compensation for all relevant recovery costs caused by the late payment of his debtor. This includes, to a reasonable level, attorney fees and costs.

8. Arbitration and ADR

Arbitration

Due to its neutral location, its position among the bigger economic powers in Europe and its multilingual and multicultural facilities, Belgium is generally considered to be an ideal venue for parties to settle their international disputes.

Brussels is home to CEPANI, the Belgian Centre for Arbitration and Mediation (www.cepani.be). The centre has built up a worldwide reputation for arbitration and other forms of dispute settlement.

Owing to the low cost of the court proceedings in Belgium, arbitration tends to be more expensive but it is often a worthwhile alternative if the parties to a dispute are from different countries whose laws do not allow them to enter into litigation in Belgium.

ADR (Alternative Dispute Resolution)

ADR (mediation and conciliation) is still in an experimental stage in Belgium, although a law on mediation was adopted on 21 february 2005 and created legal framework for mediation initiatives (whether initiated on a voluntary basis by the parties or requested by a court with the consent of the parties).

Success of mediation will depend much upon a mutual willingness to take part in the process and the quality and training of the mediator.

It is common for mediators to have a legal background, although this is not required. The new Law also introduces the concept of "accredited mediators" (i.e. mediators officially accredited thereto by Federal Mediation Commission). If the mediation was conducted by an accredited mediator, the parties can afterwards ask the court to validate the agreement they reached. This makes their agreement legally enforceable.

The recent Law on mediation may of course increase the popularity of this form of alternitive dispute resolution.


Important - The information in this article is provided subject to the disclaimer. The law may have changed since first publication and the reader is cautioned accordingly.