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Litigation

Last verified on Friday 23rd June 2017

Belgium

Joanna Kraus-Kolber and Jean-Pierre Fierens

    Overview

  1. 1.Court system
    Describe the general organisation of the court system for civil litigation.
    1. Although Belgium is a federal state, no separate state or federal courts exist. All courts are fully independent from the executive and legislative branches of power. Courts’ independence is guaranteed as a constitutional principle. 

      Belgian courts are classified according to the types of disputes they hear. There are courts of first instance as well as courts for specialised branches of law, including commerce and labour. There are also police courts and justices of the peace, all of which decide at first instance. There are no juries used in the deliberation of a dispute, except for very limited types of criminal cases. Courts of first instance are in principle competent to hear all types of disputes, except for those that belong to exclusive jurisdiction of specialised courts. Urgent disputes (eg, in summary proceedings) are heard by presidents of first instance or specialised courts, with respect to matters that belong to their jurisdiction.

      Courts of appeal and labour courts of appeal hear appeals against decisions rendered by the courts at first instance on matters that belong to their respective area of jurisdiction. The Court of Cassation reviews the judgments rendered by appellate courts, but only on the points of law.

      There are separate courts that handle administrative and immigration law cases.

      In Belgium, the only source of law is statute. Accordingly, judgments of other courts have no precedential value as in common law systems. However, in practice, courts follow – yet are not bound by – case law of appeals courts and the Court of Cassation, the latter being considered particularly authoritative.

      Judges are appointed by the King, who is represented by the Minister of Justice, upon recommendation by an independent federal entity, the High Council of Justice. To be appointed as a judge, candidates must fulfil strict criteria on knowledge and experience in law. In principle, all cases are heard by professional judges. Lay judges sit together with one professional judge only at the benches of commercial courts, labour courts and labour courts of appeals.

  2. 2.The legal profession
    Describe the general organisation of the legal profession.
    1. Any law school graduate holding a diploma issued by a Belgian university can be freely registered with a Belgian Bar. Following a three-year traineeship under supervision of a mentor, which includes practical and competencies training and exams, the trainee becomes a full member of the bar. However, the trainee has full authority to practice professionally as a lawyer as soon as he or she makes the first registration with the bar.

      All Belgian-qualified lawyers may appear before any courts without any restrictions, except before the Court of Cassation. Only lawyers who are qualified and admitted to the bar of the Court of Cassation are allowed to plead before that Court except for tax and criminal matters. (However, even for criminal matters only lawyers having followed specific courses are admitted.)

      Foreign lawyers may practise in Belgium subject to special rules. All lawyers can provide legal services as legal advisors freely. However, if they wish to appear before courts and be bound by local ethical rules, they must become admitted to the bar. Accordingly, qualified lawyers of an EU member state may practice if they meet the criteria to be listed on the EU list and are a member of certain bar associations. But they may not represent clients alone before Belgian courts; they must do so together with a Belgian lawyer. Non-EU lawyers may not generally become admitted in Belgium unless they fulfil specific criteria regarding their diploma and, in some cases, nationality.

      The Belgian Bar is fused and does not distinguish between defendant and plaintiff bars. The bar is decentralised territorially. There are separate Dutch-, French- and French-German-speaking bars, each with their own administration and governance. Dutch- and French/German-speaking bars are moreover grouped in two separate organisations that represent lawyers’ interests at federal level. A separate bar also groups lawyers who are admitted to plead before the Court of Cassation.

  3. 3.General
    Give a brief overview of the political and social background as it relates to civil litigation.
    1. Access to courts is a fundamental right, and it is supported by government policy. Belgium is generally not highly litigious in commercial law matters. There are no typical professional or activist plaintiffs, except for a few organisations that have represented various shareholders in liability claims in the aftermath of the financial crisis or plaintiffs’ group representatives who are eligible to appear in class action suits (see question 35). Courts’ caseload can be heavy, and there are currently major ongoing reforms aimed at improving the efficiency of litigation.

    Jurisdiction

  4. 4.Jurisdiction and venue
    What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?
    1. Jurisdiction and venue of Belgian courts is determined based on the dispute type, its subject matter, the capacity of the parties, and the territory. These criteria determine whether the dispute should be heard at first instance or at specialised courts, ie, commercial, labour, or other courts, or heard by those courts’ presidents (see question 1). These criteria are assessed based on the writ of summons.

      Territorial jurisdiction will be accepted if the dispute is brought before a limited selection of courts: the court at the domicile or seat of the defendant and the court at the place where the obligation at stake was (or was to be) performed (which are the two most relevant courts in practice). The Brussels Ibis Regulation and Belgian Code of Private International Law contain specific jurisdiction rules on international litigations.

      Belgian parties may agree on the specific forum but only on the venue, save for exclusive jurisdiction grounds, and not on jurisdiction at first instance or specialised courts. For example, parties may not agree that a commercial dispute be heard by a labour court.

      Brussels Ibis Regulation determines the criteria for the validity of the choice of forum in favour of Belgian courts if at least one of the parties is foreign, including parties domiciled outside the EU.

  5. 5.Forum shopping
    Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?
    1. Belgium does not enjoy a particular reputation in attracting disputes that have a nexus with other jurisdictions. The so-called Belgian torpedoes have long been put to an end. However, highly attractive interim and enforcement measures that are available under Belgian law do attract creditors who seek to obtain security against the debtor’s assets that are located in Belgium, as was in recent years the case with respect to the well-known Yukos arbitral awards. 

  6. 6.Pendency in another forum
    How will a court treat a request to hear a dispute that is already pending before another forum?
    1. Under Brussels I Regulation, Belgian courts will be obliged to stay the proceedings if they are seized, later than the foreign court, to hear a dispute involving the same cause of action and the same parties as in a dispute pending before a court of another EU member state. They may, but are not obliged to – stay the proceedings if the foreign dispute is related to the dispute pending in Belgium. The stay will be effective until the foreign court has confirmed its jurisdiction. In order to avoid torpedo actions, separate rules on stay in the event exclusive jurisdiction grounds apply.

      Belgian courts have a broader discretion with respect to pendency before non-EU courts. Belgian courts will generally stay the proceedings if it is possible that the third state court’s decision could be recognised or declared enforceable in Belgium and if the stay is for the benefit of proper administration of justice.

  7. 7.

    Deference to arbitration
    How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?

    1. Belgian courts follow the favour arbitrandum principle, and they will refer the dispute on the merits to arbitration if a valid arbitration agreement applies between the parties, but only if a party has entered a plea of lack or absence of jurisdiction before engaging in a dispute on the merits. Belgian courts will stay their proceedings under article II of the New York Convention if an arbitral tribunal was seized earlier to hear the dispute. 

      Belgian courts are equally favourable towards requests in support of arbitration filed in interim court proceedings. Requests for interim relief before courts do not imply waiver of arbitration agreements. Courts have a broad discretion in granting various types of interim measures.

  8. 8.Judicial review of arbitral awards on jurisdiction
    May courts in your country review arbitral awards on jurisdiction?
    1. Belgian courts may review arbitral awards on jurisdiction in proceedings regarding either the enforcement and recognition or annulment of awards.

      Awards confirming jurisdiction of an arbitral tribunal may be challenged in annulment proceedings only together with the award on the merits and in the same procedure. Awards denying jurisdiction are also subject to court’s review at a party’s request. 

  9. 9.Anti-suit injunctions
    Are anti-suit injunctions available?
    1. Anti-suit injunctions are not available in Belgium because they contravene European Union law, European human rights law, the Belgian constitution, and Belgian civil procedural law. A recent decision of the Brussels Court of Appeals confirms this explicitly (see its decision of 10 June 2015). 

  10. 10.

    Sovereign immunity
    Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?

    1. Belgian law is in line with public international law, and it grants immunity from being sued to several entities, including foreign states, state organs, companies, states of federal states, diplomats and consular officers and employees, heads of state and members of foreign governments as well as international organisations and members of their staff.

      Immunity generally relates only to actions iure gestionis (ie, actions that are done for the purpose of exercising sovereign state power or while exercising an official position), and generally not to actions performed as a civil law party. Specific rules apply to every category of protected entities, for example, immunity of state organisations is subject to review in light of efficiency of their internal claims procedures and right to fair proceedings. Immunity can be waived by explicit consent.

      Belgian law also recognises limited state immunity from enforcement in line with the ILC’s draft articles on Jurisdictional Immunities of States and Their Property. Accordingly, creditors can enforce court judgments or arbitral awards only against state goods intended for other than non-commercial use, against goods with respect to which the state has waived its immunity, or those which have been reserved to satisfy the claim that is the object of the enforcement title. The precise limits of enforcement immunity are, however, still the subject matter of developments in case-law. Assets of state-owned enterprises are generally considered separate from state assets and are thus subject to enforcement. Case-law on this issue is, however, not unanimous. 

    Procedure

  11. 11.Commencement and conduct of proceedings in general
    How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?
    1. As a general rule, court proceedings are initiated by a formal writ that a court bailiff serves on a natural or legal person, summoning that person to appear at an introductory hearing before a court. The law specifies where and on whom the writ is to be served. It also specifies the time limit that must elapse between the date of service and the introductory hearing. This introductory hearing is the first moment when the case is actually introduced to the court at a hearing presided by one or three judges.

      Proceedings can also be initiated by parties’ voluntary appearance or, in cases explicitly envisaged by statute, by a "contradictory application".

      Once the proceedings have been commenced, it is generally for the parties to actively take the lead thereafter. They determine the schedule for the exchange of written submissions and exhibits and are responsible for correct and thorough filing of the submissions and for taking evidence-gathering initiatives. The court takes a passive role in the proceedings until the oral hearing, and it will only intervene in punctual matters in absence of parties’ agreement. The date of the oral hearing is always determined by the court and usually depends on its caseload. 

  12. 12.Statement of claim
    What are the requirements for filing a claim? What is the pleading standard?
    1. Under Belgian law, a claim can be filed by a natural or legal person if this person has legal capacity, and capacity to perform procedural acts, if it has interest and if it acts in the proceedings under the required quality. The claimant has interest if it can expect to derive any material or moral advantage from filing its suit; interest must be existent, personal, direct and legitimate. Accordingly, future actions or actions intended to protect general interest are inadmissible. Claimant has the required quality if it alleges itself to be the holder of a substantive right that is the subject matter of its claim. Additional requirements provided for in specific laws can also apply. For instance, Belgian companies, to be able to file a claim, must be registered with the Belgian enterprises registry (Crossroads Bank for Enterprises).

      If any of the above requirements is not fulfilled at the time of the summons is served, the claim will be held inadmissible. The court can consider the claimant’s lack of legal capacity or capacity to perform procedural acts ex officio, but not the lack of interest or quality, which must always be invoked by the parties in order for the court to consider them.

      There is no particular pleading standard applicable. The only requirement is that the subject-matter of the claim and the facts on which the claim is based are specified with sufficient detail so that the defendant can understand for what it is being sued and why. It is not necessary for the statement of claim to refer to legal provisions, but this is often done in practice. In addition, certain formal requirements apply depending on the manner in which the lawsuit is brought. 

  13. 13.Statement of defence
    What are the requirements for answering claims? What is the pleading standard?
    1. The defendant answers the statement of claim through its first written submissions. The submissions should be as thorough as possible and, generally, they must also refer to an exhaustive list of exhibits. Moreover, submissions must be drafted in a specific form, and they must contain specific information, that is, a short overview of facts and all legal grounds and arguments invoked by the party, listed separately. If this form is not complied with, the court will not be obliged to respond in its judgment to the submitting party’s arguments. 

  14. 14.Further briefs and submissions
    What are the rules regarding further briefs and submissions?
    1. All further briefs and submissions should have the same contents and form as the statement of defence (see question 13).

      The party’s last submission should have the form of a ‘synthesis brief’ and this replaces all previous briefs. The courts must only respond to the arguments developed in this synthesis brief.

      The parties may modify their original claim at all times and freely by bringing it up to date with respect to interest or lease payments or any rights that are accessory to the main claim, such as an increase in compensation that have become due and/or have accrued over the course of the proceedings.

      Defendants are free to file and subsequently modify counter-claims as they see fit.

      Save for the parties’ explicit agreement, plaintiffs may furthermore at any time, including at the stage of appeals proceedings, modify or extend their original claim, but only if this modification or extension is based on the facts referred to in the original summons so that the causa of the claim remains unchanged, and if the modification or extension is submitted to an adversarial debate. Parties may modify their request for relief accordingly, and they may also change the legal assessment of their case. They may also expand or modify the factual assertions and submit new exhibits, but generally not in the last submissions.

      Amicus curiae briefs are not known in Belgian civil procedural law. A third party that asserts that the expected judgment can have an impact on its rights may intervene in the proceedings and submit its arguments. It then becomes party to the proceedings and, if its intervention is declared admissible, will be bound by the judgment (see question 24). 

  15. 15.Publicity
    To what degree are civil proceedings made public?
    1. In Belgium, only hearings and judgments are public. Third parties, including press, can attend hearings during which the case is pleaded, unless the court has ordered the hearings to be held behind closed doors. After the judgment is rendered, third parties may in principle obtain a copy of it, but not of any other documents that were exchanged during the proceedings. In practice, however, court clerks are very cautious in granting members of the public access to case judgments. If a copy of the decision is requested by a third party, privacy of the parties and proceedings (but also of judges and court clerks) could be safeguarded by blanking out or redacting the names.

      TV cameras and photographers are only allowed in court and/or the hearing room with prior approval of the court authorities, judges and, as the case may be, third-party attendees such as witnesses or interpreters. 

    Pretrial settlement and ADR

  16. 16.Advice and settlement proposals
    Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?
    1. Upon a party’s request, courts may render an interim judgment. In practice, however, courts typically do so with respect to the issues of jurisdiction or, without prejudice to the merits of the case, with respect to appointment of an expert or other case investigation measures. It is not very customary for courts to render separate judgments on liability and subsequently on quantum of damages.

      In Belgium, courts generally do not play any active role in inspiring settlement, nor are there any mandatory settlement conferences. Some exceptions are in place, however, eg, in proceedings concerning mortgage loans in which settlement attempts are obligatory, or in proceedings before justices of the peace, particularly with respect to neighbourly disputes. In the latter proceedings, justices of the peace actively incite the parties to reach a settlement. 

      If settlement is reached, the parties are expected to inform the court as soon as possible. The parties can request the court to confirm the settlement in a consent judgment. More commonly, however, the parties simply agree to withdraw their claim(s) and to end the proceedings. 

  17. 17.Mediation
    Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?
    1. Referral to mediation prior to litigation is obligatory only in certain types of disputes, such as some types of family disputes. Mediation or other ADR attempts prior to litigation can moreover be mandatory as per the parties’ explicit agreement. During court proceedings, with a few exceptions, referral to mediation is possible at the parties’, party’s, or the court’s initiative. In the two latter scenarios, however, both parties’ consent is required so that the mediation can actually take place. In Belgium, only mediation and no other ADR proceedings is regulated by law. 

    Interim relief

  18. 18.Forms of interim relief
    What are the forms of emergency or interim relief?
    1. Emergency or interim relief is available in Belgium, either before or parallel to the proceedings on the merits of the case, in the form of conservatory attachment of assets or any other measure in order to protect the applicant’s rights. Measures typically ordered include appointment of experts, measures with respect to gathering evidence or injunctions. Most of the measures can be imposed subject to a fine for non-compliance (astreinte or dwangsom). 

  19. 19.Obtaining relief
    What must a petitioner show to obtain interim relief?
    1. Conservatory attachment is available with regard to goods or debtor’s claims against third parties, such as bank accounts, and it is governed by separate procedural rules. Claims and goods can be directly attached by the bailiff (on behalf of the claimant) in the conservatory way, without obtaining leave of the court beforehand, if specific conditions are met. Otherwise, prior authorisation from the attachment judge is necessary. To obtain leave of court, it is necessary to establish urgency as well as the fact that the claim is due and certain.

      To obtain other types of interim relief, an application must be made in separate summary proceedings conducted before presidents of the courts of first instance, commercial courts, or labour courts in matters relating to their respective jurisdiction. The application will be granted if the following are proven: urgency (understood as a risk or serious loss or inconvenience to the applicant), a breach of a prima facie existing and indisputable subjective right, and the provisional nature of the relief.

      Injunctions are available only in matters and according to conditions explicitly provided for by the law, such as in IP law matters. 

      Interim relief proceedings are conducted according to faster procedural schedules than ordinary proceedings on the merits.

    Decisions

  20. 20.Types of decisions
    What types of decisions (other than interim relief) may a court render in civil matters?
    1. Except for judgments on interim or emergency relief, courts can render partial or final judgments. Upon parties’ application, courts may also issue consent judgments. Also, separate form of decisions in procedural matters, such as determination of a procedural schedule, is available. 

  21. 21.Timing of decisions
    At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?
    1. Courts may render the decisions on the merits in principle only after the oral hearing has taken place. Courts may, however, in specific cases, such as those relating to uncontested claims, render their decisions directly after the introductory hearing or shortly thereafter. Courts may render decisions on interim measures at any time in the course of the proceedings.

      No possibility for motions to dismiss or summary judgments exists under Belgian law. 

  22. 22.Default judgment
    Under which circumstances will a default judgment be rendered?
    1. Default judgments are rendered against a defendant, upon claimant’s request, if the defendant fails to appear at the introductory hearing. Courts will grant claimant’s requests for relief as specified in the writ of summons without further review, except if issues of public policy or exclusive jurisdiction matters will be at stake, in which case the court will review the case. 

  23. 23.Duration of proceedings
    How long does it typically take a court of first instance to render a decision?
    1. Depending on the caseload of the court in question, it takes courts of first instance commonly about 10 months to one year after the commencement of the proceedings to render a decision.

    Parties

  24. 24.Third parties – joinder, third-party notice, intervenors
    How can third parties become involved in proceedings?
    1. Third parties can become involved in proceedings either voluntarily or at the initiative of the party or parties to the proceedings. If third parties’ intervention is admissible, they become party to the proceedings and the decision will have res iudicata effect on them. It is not possible to have third parties join proceedings without them becoming bound by the decision of the court. Failure to have a third party join a case generally does not prevent the litigant from bringing later a case against third parties, but it can cause evidentiary difficulties since the judgment in the former case has evidentiary value vis-à-vis the third party, eg, in cases against insurers or subcontractors of the party’s own contractor. 

    Evidence

  25. 25.Taking and adducing evidence
    Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?
    1. Although courts may take ex officio initiative in evidence gathering, eg, by appointing an expert or ordering to produce specific documents, they rarely do so in practice. It is generally for the parties to submit evidence and, as the case may be, to request the court to order measures related to the taking of evidence. 

  26. 26.Disclosure
    Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?
    1. Parties are not obliged to produce evidence that is harmful to its case unless the court orders them to. Such orders are issued upon party’s application or ex officio, and the orders can be backed by fines for non-compliance. The orders must also set out clearly the specific documents required. Parties moreover have a general duty to cooperate loyally in the proceedings, including in evidence gathering. If a party refuses to cooperate, courts may draw appropriate (adverse) factual inferences and, seldom, award compensation to the opponent. 

  27. 27.

    Witnesses of fact
    Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?

    1. Hearing of witnesses may exceptionally be requested by parties and/or ordered by courts. More commonly, parties submit written witness affidavits as documentary evidence. Courts could order hearing of witnesses whose affidavits were submitted. No direct or cross-examination by the parties is allowed. It is for the judge to conduct the witness hearing and ask questions to the witnesses. Witnesses testify under oath. As a matter of professional ethics, witness preparation by attorneys is not allowed in national court proceedings. This is different in international litigations or arbitrations, where attorneys may prepare witnesses if applicable rules so permit. 

  28. 28.Expert witnesses
    Who appoints expert witnesses? What is the role of experts?
    1. Parties are free to submit with their briefs party expert reports as written evidence. Parties may also jointly appoint an expert to provide the court with technical advice. Also, the court, either ex officio or following a party’s request, may appoint experts. The experts’ role is to assist the court by providing information on technical aspects of the case. Under no circumstances may the expert, or may the court require him or her to, give legal advice about the merits of the case. Accordingly, court-appointed experts on matters of the law, including foreign law, are inadmissible. 

  29. 29.Party witnesses
    Can parties to proceedings (or a party’s directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party’s failure to testify or act as a witness?
    1. Parties to proceedings or their directors and officers cannot give witness testimony. Under Belgian law, for the witness statement to have any value, the witness must be independent from the parties. Parties or their representatives can, however, be ordered to appear before the court in order to give factual explanations about the case in their own name but it rarely happens in practice. Failure for a party to appear may then lead the court to draw adverse inferences. If party representatives are present at oral hearings, which sometimes happens, they may, albeit seldom, also be questioned by the court. 

  30. 30.Foreign law and documentation
    How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?
    1. In principle, the contents of foreign law must be ascertained by the courts according to the principle iura novit curia. In practice, however, it is the parties that provide the court with information on the contents of foreign law. Courts sometimes request assistance from the Belgian Ministry of Foreign Affairs, Belgian or foreign embassies or, sporadically, they use available international instruments, eg, under the European Convention of 7 June 1968 on Information on Foreign Law.

      Foreign language documents should in principle be translated into the official language of the proceedings, ie, Dutch, French, or German. In practice, however, courts – particularly commercial courts with more and frequent exposure to international matters – allow documents without their translation if they have been drafted in English, French, or Dutch and occasionally German, save for a party’s objection. 

  31. 31.Standard of proof
    What standard of proof applies in civil litigation? Are there different standards for different issues?
    1. No specific standard of proof applies in Belgian litigations, although courts in civil law matters are obliged to consider certain pieces of evidence above others. For instance, they may not adduce presumptions if written documents are available. In commercial law matters, courts have much more freedom to evaluate evidence.

    Appeals

  32. 32.Options for appeal
    What are the possibilities to appeal a judicial decision? How many levels of appeal are there?
    1. A party can take recourse against a judgment by means of appeals and oppositions (ie, recourse against default judgments), which are ordinary means of recourse. There is only one level of appeal. As a result of an opposition, the case is heard anew by the court that rendered the first decision but this time in adversarial proceedings with the originally defaulting party appearing. A judgment following an opposition can also be appealed against. There are furthermore extraordinary means of recourse, which include especially an appeal before the Court of Cassation, on points of law only, which is available against all appeal judgments and a third-party opposition. Third-party opposition against a decision is pursued by a person who was not a party to the proceedings but whose rights are affected by the decision.

  33. 33.

    Standard of review
    What aspects of a lower court's decisions will an appeals court review and by what standards?

    1. Appellate courts review the case anew in its entirety, both in matters of fact and in law. Even new evidence can be produced in appeal proceedings. An appeal before the Court of Cassation is available only on the points of law, however. 

  34. 34.Duration of appellate proceedings
    How long does it usually take to obtain an appellate decision?
    1. Depending on the case load of the court in question, appellate courts render their decisions in about one to two years after the commencement of the appeals proceedings.

    Special proceedings

  35. 35.Class actions
    Are class actions available?
    1. Class actions are available in Belgium since September 2014. They can be pursued in matters involving mass damage, ie, only by a group of consumers who have sustained harm or loss as a result of the same cause that took place after the new law’s entry into force. Class actions are only admissible if:

      • the cause of damage relates to the defendant’s breach of its contractual obligations or to violations of laws and European regulations specified in the statute on class actions concerning, for example, intellectual property laws, fair competition laws, or product safety;
      • the action has been brought by a group representative, including certain European organisations, who fulfils the requisite criteria and is considered appropriate by the judge to bring the action; and
      • lodging a class action is more appropriate than lodging a claim in normal proceedings.

      Accordingly, shareholders’ class actions in liability are not admissible.

      Class actions are filed by plaintiffs’ group representatives, and they can be filed only with the Brussels civil or commercial courts. The decision on the admissibility of the class action will specify which system, opt-in or opt-out, applies to the consumers’ group. Class actions have not been very popular to date. There have been several class actions filed so far (eg, with respect to railway and air transport, the so-called Diesel-gate or with respect to the use of TV decoders). Two of the filed actions have so far been declared admissible. 

  36. 36.Derivative actions
    Are derivative actions available?
    1. Derivative actions against third parties are not available in Belgium. However, Belgian company law provides for a derivative action in liability that can be brought by minority shareholders in several types of business associations, including joint stock and limited liability companies, but only against the company’s directors (a ‘minority action’). Such actions are brought in the shareholders’ own name and are pre-financed by them, but they are for the benefit of the company. If the action is successful, the compensation ordered by the court is awarded to the company, and it can only be paid out to the shareholders eventually in the form of a dividend. For these reasons, minority actions hardly occur in practice. 

  37. 37.Fast-track proceedings
    Are fast-track proceedings available?
    1. Except for proceedings concerning interim and conservatory measures (see questions 18 and 19), no specific fast-track proceedings are available under Belgian law. However, "short proceedings" are possible in the context of normal court proceedings on the merits if the plaintiff requests this in the writ of summons, and parties will either agree to such short proceedings or the case will be a straightforward one concerning, for example, undisputed and unpaid invoices. If the case is heard in short proceedings, the court can either close the debates immediately at the introductory hearing or adjourn the hearing for a short period and render the judgment shortly afterwards.

      In line with the 2011/7/EU directive on combating late payment in commercial transactions, a fast and partially out-of-court procedure is available for some undisputed claims since 2 July 2016. Such procedure will be first put in motion by court bailiffs, upon application filed by a party’s lawyer.

  38. 38.Foreign-language proceedings
    Is it possible to conduct proceedings in a foreign language?
    1. No, proceedings must be conducted in the official court language, ie, French, Dutch, or German, depending on the location of the court. 

    Effects of judgement and enforcement

  39. 39.Effects of a judgment
    What legal effects does a judgment have?
    1. Final judgments, including the decision and the finding on matters of both fact and legal qualification of the facts, have res iudicata effect on all parties to the proceedings, including third persons that have intervened in them. Judgments that are not yet final have only a limited res iudicata effect. Judgments can be invoked by or against third parties and have an evidentiary value (force probante) with respect to such persons. Third persons can challenge the findings, which are established in the judgment, by using all evidentiary means. 

  40. 40.Enforcement procedure
    What are the procedures and options for enforcing a domestic judgment?
    1. Domestic judgments can be enforced by way of seizure of moveable or immoveable assets or seizure of third party claims (such as bank accounts) owed to the judgment debtor. All seizures are performed by court bailiffs. Specific time frames and procedures apply depending on the kind of enforcement measures.

  41. 41.Enforcement of foreign judgments
    Under what circumstances will a foreign judgment be enforced in your jurisdiction?
    1. Judgments rendered by EU courts are automatically enforceable in Belgium under the Brussels Ibis Regulation. Judgments of other foreign courts must be first declared enforceable in Belgium following the creditor’s ex parte request and recourse against decision granting exequatur is available. Exequatur will be refused in very limited circumstances, ie, violation of public policy, of rights of defence, or of exclusive jurisdiction rules, or fraud and incompatibility with another judgment in Belgium.

      It is possible to take certain conservatory measures, such as seizures of bank accounts, based on foreign judgments that have not yet been declared enforceable. 

    Costs

  42. 42.Costs
    Will the successful party’s costs be borne by the opponent?
    1. Prevailing party’s legal fees as well as costs related to enforcement measures that have been undertaken before or during the proceedings or costs of writ of summons and of investigation measures (eg, concerning court-appointed expertise) will be reimbursed by the non-prevailing party. The reimbursable amount of legal fees is capped at a sum depending on the amount in dispute. In extraordinary circumstances, eg, depending on the financial situation of the opponent, the capped sum can be increased or decreased, but also only up to amounts provided by the law. 

  43. 43.Legal aid
    May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?
    1. Legal aid financed by the state is available for parties with insufficient financial resources. Strict criteria on maximum income must be met in order to qualify for legal aid.

      Other financing options can also be available. In some types of proceedings (eg, related to traffic accidents), it is common for parties to have a special insurance covering the costs of proceedings, or to agree on partial success fees with their attorney. Some proceedings, particularly with respect to liability claims launched by multiple shareholders, tend to be pre-financed by organisations that represent such shareholders. Costs of legal proceedings can be limited if recourse is taken to class actions. 

  44. 44.Contingency fees
    Are contingency fee arrangements permissible? Are they commonly used?
    1. Only partial success fees are allowed in Belgium, ie, arrangements in which the fee is partially based on a fixed or hourly rate and partially on the desired result. Such arrangements are made sometimes, but they are not prevailing practice. 

  45. 45.Third-party funding
    Is third-party funding allowed in your jurisdiction?
    1. Third-party funding in Belgium is not regulated by any laws or guidelines. This type of funding is not common in litigation, but it seems to be gaining more importance in international arbitration, including if the seat of arbitration is in Belgium. Foreign third-party funders are beginning to offer their services in Belgium.

  46. 46.Fee scales
    Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?
    1. There are no obligatory fee scales, and lawyers are free to establish their fees as they see fit provided that they communicate them in full transparency before commencing the cooperation. In the event of a dispute, courts can check whether the fees are fixed with sufficient modesty and equity.

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Overview

  1. 1.Court system
    Describe the general organisation of the court system for civil litigation.
  2. 2.The legal profession
    Describe the general organisation of the legal profession.
  3. 3.General
    Give a brief overview of the political and social background as it relates to civil litigation.
  4. Jurisdiction

  5. 4.Jurisdiction and venue
    What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?
  6. 5.Forum shopping
    Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?
  7. 6.Pendency in another forum
    How will a court treat a request to hear a dispute that is already pending before another forum?
  8. 7.

    Deference to arbitration
    How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?


  9. 8.Judicial review of arbitral awards on jurisdiction
    May courts in your country review arbitral awards on jurisdiction?
  10. 9.Anti-suit injunctions
    Are anti-suit injunctions available?
  11. 10.

    Sovereign immunity
    Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?


  12. Procedure

  13. 11.Commencement and conduct of proceedings in general
    How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?
  14. 12.Statement of claim
    What are the requirements for filing a claim? What is the pleading standard?
  15. 13.Statement of defence
    What are the requirements for answering claims? What is the pleading standard?
  16. 14.Further briefs and submissions
    What are the rules regarding further briefs and submissions?
  17. 15.Publicity
    To what degree are civil proceedings made public?
  18. Pretrial settlement and ADR

  19. 16.Advice and settlement proposals
    Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?
  20. 17.Mediation
    Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?
  21. Interim relief

  22. 18.Forms of interim relief
    What are the forms of emergency or interim relief?
  23. 19.Obtaining relief
    What must a petitioner show to obtain interim relief?
  24. Decisions

  25. 20.Types of decisions
    What types of decisions (other than interim relief) may a court render in civil matters?
  26. 21.Timing of decisions
    At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?
  27. 22.Default judgment
    Under which circumstances will a default judgment be rendered?
  28. 23.Duration of proceedings
    How long does it typically take a court of first instance to render a decision?
  29. Parties

  30. 24.Third parties – joinder, third-party notice, intervenors
    How can third parties become involved in proceedings?
  31. Evidence

  32. 25.Taking and adducing evidence
    Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?
  33. 26.Disclosure
    Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?
  34. 27.

    Witnesses of fact
    Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?


  35. 28.Expert witnesses
    Who appoints expert witnesses? What is the role of experts?
  36. 29.Party witnesses
    Can parties to proceedings (or a party’s directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party’s failure to testify or act as a witness?
  37. 30.Foreign law and documentation
    How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?
  38. 31.Standard of proof
    What standard of proof applies in civil litigation? Are there different standards for different issues?
  39. Appeals

  40. 32.Options for appeal
    What are the possibilities to appeal a judicial decision? How many levels of appeal are there?
  41. 33.

    Standard of review
    What aspects of a lower court's decisions will an appeals court review and by what standards?


  42. 34.Duration of appellate proceedings
    How long does it usually take to obtain an appellate decision?
  43. Special proceedings

  44. 35.Class actions
    Are class actions available?
  45. 36.Derivative actions
    Are derivative actions available?
  46. 37.Fast-track proceedings
    Are fast-track proceedings available?
  47. 38.Foreign-language proceedings
    Is it possible to conduct proceedings in a foreign language?
  48. Effects of judgement and enforcement

  49. 39.Effects of a judgment
    What legal effects does a judgment have?
  50. 40.Enforcement procedure
    What are the procedures and options for enforcing a domestic judgment?
  51. 41.Enforcement of foreign judgments
    Under what circumstances will a foreign judgment be enforced in your jurisdiction?
  52. Costs

  53. 42.Costs
    Will the successful party’s costs be borne by the opponent?
  54. 43.Legal aid
    May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?
  55. 44.Contingency fees
    Are contingency fee arrangements permissible? Are they commonly used?
  56. 45.Third-party funding
    Is third-party funding allowed in your jurisdiction?
  57. 46.Fee scales
    Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?