Dispute Resolution in 38 jurisdictions worldwide 2005 Published by GETTING THE DEAL THROUGH in association with: A&L Goodbody Amarchand Mangaldas Anderson M¯ ori & Tomotsune Araújo e Policastro Advogados Bedell Cristin Brigard & Urrutia Charles Adams, Ritchie & Duckworth Claro y Cía Cuatrecasas Cunescu Balaciu & Asociatii Dr Colin Ong Legal Services Dr Dr Batliner & Dr Gasser EEIG LawFed Fulbright & Jaworski LLP Glatzová & Co Gleiss Lutz Heller Ehrman LLP Herbert Smith LLP Hiswara Bunjamin & Tandjung Hoet Peláez Castillo & Duque King & Wood Lenz & Staehelin McMillan Binch Mendelsohn Nielsen & Nørager NOMOS Thessaloniki Law Firm Ozannes Schönherr Simpson Thacher & Bartlett LLP Sorainen Law Offices Stibbe Von Wobeser y Sierra SC White & Case LLP
The Official Research Partner of the International Bar Association
DISPUTE RESOLUTION 2005 ISSN 1741-0630
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LITIGATION
1 Court systemWhat is the structure of the civil court system?
The Belgian civil court system is shaped as a three-level pyramid.Four main courts compose the first-instance level:
� the court of first instance (Rechtbank van eerste aanleg/Tri-bunal de première instance) has jurisdiction over any disputeconcerning private interests unless the law has expressly con-ferred jurisdiction to another court;
� the justice of the peace (Vredegerecht/Justice de Paix) hasjurisdiction over civil matters up to €1,860 and over certainspecialised matters such as landlord and tenant disputes;
� the commercial court (Rechtbank van koophandel/Tribunalde commerce) decides commercial cases, including insolvencyproceedings;
� the labour court (Arbeidsrechtbank/Tribunal du travail),where employers’ and employees’ representatives sit in equalnumber together with the presiding professional judge,decides employment disputes.
Any appeal against a first-instance decision is directed to the Courtof Appeal (Hof van beroep/Cour d’appel), or, in case of employ-ment disputes, to the Labour Court of Appeal (Arbeidshof/Courdu Travail).
At the top of the pyramid is the Supreme Court (Hof van cas-satie/Cour de cassation), which is divided into a general civilchamber, a criminal chamber and an employment chamber. Anappeal to the Supreme Court is only possible on a point of law.The Supreme Court does not review the facts. If an appeal is suc-cessful the case is sent back to another court of appeal.
2 Judges and juriesWhat is the role of the judge and, where applicable, the jury in civil
proceedings?
Belgian civil procedure is mainly accusatory. In theory, the par-ties are in charge of the trial and each party has the burden ofproof of the facts it relies on. Judges may only decide on facts sub-mitted by the parties and cannot go beyond them.
Nevertheless, judges are solely responsible for giving a properlegal interpretation of the facts and for applying the correct ruleof law to them, provided they have first given the parties thechance to be heard.
Juries are unknown in Belgian civil proceedings.
3 Limitation issuesWhat are the time limits for bringing civil claims?
Contractual claims are time barred after 10 years. Claims in tortare barred five years from the date the claimant has had know-ledge of its damage and of the identity of the party responsiblefor this damage, and in any case 20 years from the date of theevent giving rise to the damage.
Those general rules are supplemented by numerous specialstatutes of limitation applicable to, inter alia, insurance claims(three years), liability of companies’ officers (five years), employ-ment relations (one year), transportation (one year), etc.
Parties may agree to suspend the time limits. Moreover, lim-itation periods are interrupted by a bailiff’s serving of writ, a courtorder, an injunction to pay, or by the debtor’s acknowledgementof his debt. After an interruption, the limitation period starts againfrom the beginning.
4 Pre-action behaviourAre there any pre-action considerations the parties should take into account?
No specific steps have to be taken before initiating civil court pro-ceedings, unless the parties have contractually agreed not to startany legal action before an alternative dispute resolution mecha-nism has failed (such as an obligation to consult with each otheror try to settle the issue within for instance 30 days). It is cus-tomary, however, to send an official warning letter to the debtorwhich may also have the effect of making the interests run.
5 Starting proceedingsHow are civil proceedings commenced?
Civil proceedings are commenced by the service of a writ on thedefendant through a bailiff. In some cases where it is necessaryto preserve evidence, it is possible to file an ex parte request andobtain a provisional decision without the other party being calledand heard. However, such decisions may then be reversed uponopposition by the other party.
6 TimetableWhat is the typical procedure and timetable for a civil claim?
Belgian civil proceedings require that each party has been able toreact in writing to the other party’s arguments and evidence beforethe case is argued. Any argument or evidence not communicatedto the other party before oral argument is inadmissible. There-fore, civil proceedings before Belgian courts consist of two (orthree) phases.
Chapter 3
BelgiumVera Van Houtte and Rony Vermeersch
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If an expert opinion is required, a court expert will usually bedesignated at the early stages of the procedure. Expert investiga-tions rarely last less than a year. The next, written, phase thenconsists of successive exchanges of legal briefs and evidenceamong the parties. It is a lengthy phase, taking usually severalmonths (and, depending on the number of parties involved, theissues at stake, etc, sometimes even years). Then comes the hear-ing, at which the parties present their arguments orally to thecourt, and which rarely lasts more than one or two hours sinceoral testimony is unusual in civil cases. The average time to obtaina decision is one to two years for a first-instance decision, andtwo to three years for a decision on appeal.
7 Case managementCan the parties control the procedure and the timetable?
The parties are in charge of the procedure and timetable in thesense that the court will not impose a mandatory deadline ortimetable, unless one or all parties request the court to do so.When so requested, the court will set mandatory deadlines forexchanges of submissions and evidence and will set the date fororal arguments. Even so, the parties may deviate from thetimetable, provided they are in agreement.
8 EvidenceWhat is the extent of pre-trial exchange of evidence? Is there a duty to preserve
documents and other evidence pending trial? How is evidence presented at trial?
There is no general duty to disclose all documents relating to thecase. There is also no discovery under Belgian procedural law.Parties must only disclose the evidence on which they intend torely. There is no general, statutory duty to preserve documentsand other evidence pending trial. However, such obligation mayexist because of other reasons (for instance for tax or accountingpurposes). The courts may, moreover, draw adverse inferences ifa party would (deliberately) do away with documents or otherevidence.
A party can ask a court to issue an order on the other partyor a third party in order to obtain from that person a clearly iden-tified document. Whether the order is granted lies within thecourt’s discretion. If a court considers that it is not sufficientlyinformed to decide a case it can, on its own motion or at therequest of a party, appoint an expert in order to make certain fac-tual determinations. In technical cases, the claimant will almostalways request the court to appoint an expert in order to makecertain factual determinations at the early stages of the procedure.
9 Interim remediesWhat interim remedies are available?
A wide range of interim measures is available, often throughsummary court proceedings (kort geding/référé), provided thatthe case is urgent, that the claimant has a prima facie case andthat the evidence relied upon by the claimant is not seriously dis-puted.
Some interim measures aim at avoiding the consequences ofthe defendant’s threatening insolvency, such as freezing injunc-tions. The claimant must supply evidence of both the defendant’sdebt and the risk of non-payment. The sequestration of goodsmay also be ordered.
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10 RemediesWhat substantive remedies are available?
Belgian law authorises only compensatory damages. They are cal-culated by reference to the extent of the loss actually incurred andirrespective of the seriousness of the breach. Material losses andmoral consequences may also be compensated. Punitive damagesare unknown in Belgium.
Interest starts running automatically from the date of thejudgment in respect to damages. In commercial matters regard-ing contractual debts, interest is normally payable 30 days fromthe due date.
Belgian courts may also grant injunctions to do or to refrainfrom doing something, on sanction of a penal sum (dwang-som/astreinte). However, most contractual obligations will onlygive rise to damages if not performed voluntarily.
11 EnforcementWhat means of enforcement are available?
Where the losing party is ordered to pay a sum of money the nor-mal means of enforcement will be the attachment of its property.A final court decision is good title to proceed to attachment. Ifmonies are attached, they will be attributed to the judgment cred-itor. In other cases, the attached goods will be sold and the judg-ment-creditor paid out of the price obtained.
Where specific performance is allowed, it is possible for thecourt to order it subject to a penal sum (dwangsom/astreinte) incase of non-performance or delay.
12 Inter partes costsDoes the court have power to order costs?
In principle, unavoidable costs of the proceedings, like expert feesand witness costs, are borne by the defeated party. A court mayapportion the cost differently provided that it justifies its decision.
Other costs, mainly lawyers fees, have long been considerednot recoverable. A recent Supreme Court decision has, however,opened the door for the (partial) recovery of lawyers fees to theextent those fees were necessary. The precise amount of suchrecoverable lawyers fees is to be decided by the court.
13 Fee arrangementsAre ‘no win, no fee’ agreements or other types of contingency fee arrangements
available to parties?
‘No win, no fee’ arrangements are prohibited. Lawyers fees are usu-ally calculated on the basis of hourly rates, increased with the out-of-pocket and other expenses and, as the case may be, a success fee.
14 AppealOn what grounds and in what circumstances can the parties appeal? Is there a
right of further appeal?
As a general rule, every first-instance judgment may be referredto the court of appeal both on factual and legal points, except forcases where the amount at stake is under €1,860 (decisions of thecourt of first instance and the commercial court) or €1,240 (deci-sions of the justice of the peace).
Decisions of the Court of Appeal and first instance decisionswhere the amount at stake is under €1,860/€1,240 may be chal-lenged before the Supreme Court, but only on a point of law (see1 above).
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15 Foreign judgmentsWhat procedures exist for recognition and enforcement of foreign judgments?
Under Council Regulation 44/2001 of 22 December 2000, whichapplies to judgments of the courts of member states of the Euro-pean Union, a foreign judgment will be enforced provided thatthe principle of due process was observed and that the judgmentcomplies with Belgian international public policy (openbareorde/ordre public).
In the absence of an enforcement convention, enforcementproceedings are the exclusive jurisdiction of the court of firstinstance. Besides the dispute itself, the court will inter alia verifythat the foreign judgment does not violate public policy, whetherthe rights of the defence have been respected, that the foreigncourt did not have jurisdiction based on the claimant’s national-ity only, whether the foreign judgment is a final decision andwhether the copy of the foreign judgment presented to the Bel-gian court has an authentic form.
16 Foreign proceedingsAre there any procedures for obtaining oral or documentary evidence for use in
civil proceedings in other jurisdictions?
Between member states of the European Union (except Denmark),Council Regulation No. 1206/2001 of 28 May 2001 on Coop-eration between the Courts of the Member States in the Takingof Evidence in Civil or Commercial Matters applies. Accordingto the Regulation, courts must directly address their requests tothe Belgian courts that have jurisdiction on the witness to be heardor the person holding the requested document. The requested Bel-gian courts then have 90 days to process the request. Parties andrepresentatives of the requesting court have the right to be pres-ent in the taking of evidence by the requested court if the law ofthe requesting court allows such presence. A requesting court mayalso be authorised to directly proceed to the taking of evidence inBelgium if this can be done on a voluntary basis without the needfor coercive measures.
Where Council Regulation 1206/2001 does not apply, spe-cific bilateral (inter alia with France and Germany) or multilat-eral conventions may apply. Failing that, Belgian separate courtproceedings will have to be initiated before the Belgian courts, inorder to obtain the requested or documentary evidence.
ARBITRATION
17 UNCITRAL Model LawIs the arbitration law based on the UNCITRAL Model Law?
The Belgian arbitration law (part VI of the Belgian Judicial Code)is not based on the UNCITRAL Model Law, which it predates.It was originally based on the 1961 Geneva convention on inter-national commercial arbitration, and was further modernised in1985 and 1998.
18 Arbitration agreementsWhat are the formal requirements for an enforceable arbitration agreement?
Except for the fact that arbitration agreements must result froma document (signed or not by both parties), they are not subjectto any formal requirement or any minimum content. They areenforceable provided that they evidence the intention of the par-ties to resort to arbitration.
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19 Choice of arbitratorIf the arbitration agreement and any relevant rules are silent, how many
arbitrators will be appointed and how will they be appointed? Are there
restrictions on the right to challenge the appointment of an arbitrator?
The arbitral tribunal must always be composed of an unevennumber or arbitrators. There may be a sole arbitrator. When theparties have not determined the number of arbitrators in the arbi-tration agreement and do not reach agreement on the number,the arbitral tribunal shall be composed of three arbitrators.
The parties may, either in the arbitration agreement or sub-sequently thereto, appoint the sole arbitrator or the arbitratorsor entrust the appointment to a third person. If the parties havenot appointed the arbitrators and have not agreed on a methodof appointment, each party shall appoint its arbitrator or an equalnumber of arbitrators, as the case may be. The arbitrators nom-inated or appointed shall then appoint another arbitrator to bechairman of the arbitral tribunal.
If the party or third person entrusted with the appointmentof the arbitrator(s) has not, within a period of one month,appointed the arbitrator or arbitrators whom the party or thirdperson is entitled to appoint, the president of the court of firstinstance shall make the nomination at the request of either party.The same applies when the arbitrators fail to appoint or agree onthe chairman of the arbitral tribunal.
Arbitrators may be challenged if circumstances exist that giverise to justifiable doubts as to their impartiality or independence.A party may challenge an arbitrator only for reasons of whichhe/she becomes aware after the appointment has been made. Theprocedure to be followed in order to challenge an arbitrator is setout in the arbitration statute.
20 ProcedureDoes the domestic law contain substantive requirements for the procedure to
be followed?
Belgian arbitration law grants the parties and the arbitrators muchfreedom to organise the arbitral proceedings. In fact, the only truelimits lie in the respect of the principle of due process and of Bel-gian public policy, as their infringement constitutes grounds forsetting aside or resisting the enforcement of the final award.
21 Court interventionOn what grounds can the court intervene during an arbitration?
The Belgian courts will not directly interfere with arbitral pro-ceedings.
The president of the court of first instance has jurisdiction toresolve any difficulty that may occur in the course of the consti-tution of the arbitral tribunal.
Moreover, Belgian courts may still award provisional meas-ures, including a provisional payment through summary pro-ceedings called référé-provision if the claimant’s rights are notseriously disputable.
22 Interim reliefDo arbitrators have powers to grant interim or conservatory relief?
An arbitral tribunal has jurisdiction under Belgian law to orderprovisional or protective measures, such as conservatory meas-ures to preserve evidence or prevent irreparable harm and meas-ures designed to facilitate the production of evidence, with theexception of issuing an attachment order.
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23 AwardWhen and in what form must the award be delivered?
The award must be made within the time limit determined by theparties, prior to the first arbitrator’s acceptance of his function.If the parties have prescribed neither such time limit nor the man-ner in which it is to be determined, the court of first instance mayat the request of either party fix a time limit for the arbitral tri-bunal, if the arbitral tribunal delays the rendering of the awardand if a period of six months has elapsed from the date on whichall the arbitrators accepted their function with respect to the dis-puted matter.
The award must be made in writing and signed by the arbi-trators. If one or more of the arbitrators are unable or unwillingto sign, this must be recorded in the award. However, the awardmust in any case be signed by at least the majority of the arbitra-tors.
The award must, in addition to the actual decision and moti-vation thereof, contain the following elements: the names andaddresses of the arbitrators and the parties, the subject matter ofthe dispute, the date on which the award is made, the place ofarbitration and the place where the award is made.
Most legal authors consider that dissenting opinions are notallowed under Belgian law.
24 AppealOn what grounds can an award be appealed to the court?
Arbitral awards cannot be appealed before the Belgian courts. Consequently, if an award has been rendered in Belgium, it
can only be challenged by way of an annulment procedure(notably for lack of motivation or public policy reasons), or inthe context of the defence to an enforcement action.
25 EnforcementWhat procedures exist for enforcement of foreign and domestic awards?
The president of the court of first instance has jurisdiction forenforcement. Enforcement of domestic awards will only berefused if the award or its enforcement violates public policy orif the dispute was not arbitrable. In addition to those two groundsfor refusal, the enforcement of a foreign award will, moreover, berefused if the award can still be challenged before arbitrators orif the arbitrators have not ordered the provisional enforcement
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of their award notwithstanding appeal, or if it is established thatthere exists a ground for setting aside the award under Belgianlaw (application to the foreign award of the Belgian grounds forsetting aside an award).
The courts will not review the merits of a foreign or domes-tic award.
Belgium has ratified the New York Convention on the Recog-nition and Enforcement of Foreign Arbitral Awards of 10 June1958. Based on the reservation it made, Belgium will only applythe New York Convention on the basis of reciprocity to awardsmade in the territory of another contracting state.
26 CostsCan a successful party recover its costs?
The apportionment of the costs of arbitration (including arbitra-tors fees, expenses connected with the hearings, fees and expensesof experts appointed by the tribunal), is a question for the arbi-tral tribunal to resolve. The standard rule is to order the defeatedparty to bear most of or all the costs. The decision of the arbi-trators on the apportionment of the costs may be challenged onlyin the same way as the rest of the award.
The amount of the arbitrators’ remuneration, on the otherhand, may be disputed through a regular court action. Belgiancourts may reduce unreasonably high remuneration.
ALTERNATIVE DISPUTE RESOLUTION
27 Obligatory ADRIs there a requirement for the parties to litigation or arbitration to consider
alternative dispute resolution before or during proceedings?
Under Belgian law there is no statutory obligation to consideralternative dispute resolution before resorting to litigation or arbi-tration.
However, parties may agree in a contract to refrain from start-ing a court action until they have failed to resolve their disputethrough an alternative dispute resolution mechanism. If such aclause has been agreed upon, Belgian courts and arbitral tribunals,will refuse to hear the case unless the claimant gives evidence thatthe clause has been given full effect.
Also, a judge before whom a case is pending, may at anystage, prior to the closing of the debate, order mediation, pro-vided the parties agree to it.
28 Specific featuresAre there any specific features of the dispute resolution system not addressed in
any of the previous questions?
Belgian language statutes apply to court proceedings. Thus, courtcases are in Dutch in the Flemish region, in French in the Wal-loon region and in either Dutch or French in the Brussels region.Before Brussels courts, the language of the procedure is in somecases imposed by the law and in other cases chosen by theclaimant:
� if the defendant’s seat or domicile is in the Flemish, or theWalloon, region, the procedure must be introduced in Dutch,or French respectively, and shall in principle be continued insuch language;
� if the defendant’s seat or domicile is in the Brussels region oroutside Belgium, the claimant may choose the language inwhich he introduces the proceedings.
Prior to any other defence, the defendant may request a changeof the language, however, eg by proving that he has an insuffi-cient knowledge of the language in which the case was introduced.Appeals against a court’s decision ordering a change of languageare dealt with by the Supreme Court.
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