I INTRODUCTION TO THE DISPUTE RESOLUTION FRAMEWORK
Belgium is a federal state made up of federal and regional levels. It has a civil law system with federal statutes; royal decrees implement these statutes, which are the most important source of law. For some branches of law, however, statutes and decrees rendered at the regional level can be relevant sources of law. Legislative preparatory works, legal doctrine and case law provide strong authority on the interpretation and application of the law.
Civil proceedings are held in two instances. Decisions rendered by first instance courts can be appealed before appeal courts or, for labour courts’ decisions, before labour appeal courts. Appeal courts’ judgments can be subject to review by the Court of Cassation, but only on a point of law.
Two types of courts hear cases at first instance: first instance courts and specialist courts. First instance courts are competent to hear criminal cases, except for cases involving serious crimes (these are heard by a jury before the courts of assize), and all civil disputes, except for those that are reserved for the exclusive competence of other courts. At the first instance court, there is a special judge (the attachment judge) who is solely competent to decide on issues relating to conservatory and executory attachments of assets. The first instance courts also have special sections that hear family law matters only.
Courts with special jurisdiction are courts of commerce, labour courts, police courts and justices of the peace.
Courts of commerce are solely competent to hear all commercial disputes (e.g., sales contracts or corporate disputes). These are disputes between any type of entity that pursues economic goals, and they concern acts carried out for this pursuit. These courts also have exclusive jurisdiction regarding, for example, bankruptcy, intellectual property, competition and certain consumer matters.
Labour courts are competent to hear disputes relating to employment contracts and social security matters, among others.
Police courts have exclusive jurisdiction on, inter alia, civil claims for damages arising out of traffic and train accidents, and related criminal issues.
Justices of the peace are competent to hear matters relating to lease agreements or disputes between neighbours, among other types of claims and disputes.
There are special courts and procedures for public and administrative law, and immigration law matters.
Among the alternative dispute resolution procedures, only mediation and arbitration are explicitly governed by law in Belgium. These procedures were fundamentally modified in 2013.
If the parties agreed to a contractual, multi-tier dispute resolution clause and failed to fulfil the prerequisites for bringing a case to court, the legal actions taken will not be held inadmissible. Rather, the actions will be suspended until the contractual conditions for instituting proceedings have been fulfilled.
II THE YEAR IN REVIEW
i Major legislative developments
No major legislative changes concerning dispute resolution were introduced in 2016. Several amendments passed by bills of 2015 entered into force in 2016.
As of 2 July 2016, simplified proceedings regarding uncontested pecuniary claims have become available. Courts’ bailiffs are now competent, upon an attorney’s request, to launch simplified proceedings for uncontested claims and to execute enforceable payment orders. All claims that are due on the date the lawsuit is launched, except for claims against public authorities or consumers and debtors who are not registered in the Belgian registry of companies, and also except for non-contractual claims and claims arising out of insolvency or similar proceedings, can be the subject-matter of these simplified proceedings.
It has already become possible to file some procedural documents electronically with the courts. Specifically, since 2015, written submissions and exhibits filed electronically have been accepted by the courts of appeal. Since 2 July 2016, such filing has also been possible in all labour courts of appeals and, most importantly, in all courts of commerce. Simultaneously, an electronic system for filing written communications has become operational in the first courts, those being Justices of the Peace. This system allows the courts to have electronic exchange of all correspondence and other written communication. The system will be introduced gradually in other courts, once their IT-infrastructure has been sufficiently set up.
ii Recent decisions
One of the most significant decisions was rendered on 17 March 2016 by the Constitutional Court. This decision concerns Article XVII.39 of the Belgian class action law that specifies criteria for acting as a group representative in a class action lawsuit. The Constitutional Court’s decision annulled said article in so far as it does not grant the right to act as a group representative in Belgium to entities from EU states that fulfil the requirements specified in Article 4 of the European Commission’s recommendation 2013/396/EU on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union law. Article XVII.39 of the Belgian Class Action Law will have to be amended accordingly. According to the Constitutional Court’s ruling, as long as such an amendment has not entered into force, Belgian courts may not declare a class action inadmissible if it has been instituted by a European consumer organisation that is competent to file for injunctions for the protection of consumers’ interests (as per Article 4(3) of the Parliament’s and Council’s Directive 2009/22/EC).
The Constitutional Court has also rendered another important judgment whereby it confirmed its change of case law regarding the Belgian state’s liability for legal fees that are due if the state loses the case. The Court first changed its case law in 2015 by holding, in a series of tax-law matters between taxpayers and the Belgian state, that the fact that the Belgian state acts in the collective interest of the entire community does not mean that it should be exempt from paying the prevailing party’s legal fees in civil proceedings. On 3 March 2016, as hoped by practitioners, the Court annulled a bill that was passed in 2014 but had not entered into force, that had more generally exempt the Belgian state from paying the prevailing party’s legal fees where it acts in civil proceedings through public law bodies with legal personality that represent the general interest.
Another change with respect to the Belgian approach to legal fees could occur following the 28 July 2016 judgment of the Court of Justice of the European Union in the United Video Properties v. Telenet case (Case No. C-57/15), which was rendered upon the Antwerp Court of Appeals’ request for a preliminary ruling of 26 January 2015. The Antwerp Court has asked whether the Belgian system of reimbursement of legal fees, which provides for a flat-rate scheme for reimbursement of such fees, is compatible with the European IP Enforcement Directive No. 2004/48. According to this Directive, ‘reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this.’ The Court of Justice has ruled that a flat-rate scheme for reimbursement of legal fees is compatible with the Directive, provided that the applicable rates ensure that the costs to be borne by the unsuccessful party are reasonable, which is for the court to determine. However, a flat-rate scheme in national legislation is contrary to the Directive in that it provides for flat rates that are so low so that they do not ensure that a significant and appropriate part of the reasonable legal fees of the prevailing party may be reimbursed. Regardless of what standpoint the Antwerp Court will take following the European Court of Justice’s ruling, appropriate amendments will need to be passed in the Belgian legislation. It remains to be seen whether such amendments will concern only IP-related lawsuits or, more generally, all civil proceedings.
III COURT PROCEDURE
i Overview of court procedure
Court procedures in Belgium are governed by the Judicial Code. Fundamental principles governing court proceedings relate to access to courts; independence and impartiality of courts; fair, public and mainly adversarial proceedings; and party autonomy and equality. Although the burden of proof rests on the alleging party, all parties to the proceedings have a duty of loyal cooperation in the proceedings, including in matters relating to gathering evidence.
ii Procedures and time frames
As a general rule, proceedings before the courts 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 writ is simultaneously registered at the court’s docket. The law specifies where and on whom the writ may be served. It also specifies the time limit that must elapse between the date of service and the introductory hearing. The minimum period is eight days if the summoned party or parties are Belgian, and up to 80 days if the party or parties are located outside Europe. For urgent matters, a leave of court can be sought by the plaintiff to have this period shortened. In summary proceedings, this obligatory waiting period is two days. Introductory hearings, except those for urgent matters or otherwise upon the leave of court, are not held during the annual court holiday period between 1 July and 31 August.
Proceedings can also be initiated by parties’ voluntary appearance or, in cases explicitly envisaged by statute, by a ‘contradictory application’.
The first moment when the case is actually introduced to the court at a hearing presided over by one or three judges in a chamber is the introductory hearing.
If the defendant fails to appear at this hearing, the plaintiff may request that the court render a default judgment. The court, in its decision, will usually grant the plaintiff’s requests as indicated in the writ, unless an exclusive jurisdiction ground or public policy issue presents itself.
If the defendant appears at the introductory hearing, the case can either be prepared for the main hearing or be pleaded by the parties and heard by the court immediately in ‘short proceedings’. The latter scenario is possible if it is requested by the plaintiff in the writ of summons, and either the parties will 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 afterwards. If the case is not dealt with at the introductory hearing, arrangements will have to be made regarding the procedural calendar for the exchange of legal briefs, submission of evidence and hearing date. It is only after these arrangements are made that the defendant will have to reply, by way of its first legal brief, to the plaintiff’s writ of summons. The Belgian Judicial Code does not stipulate any default time periods for procedural submissions or hearings. The hearing date is always determined by the court, depending on its caseload. The time limits for briefs and submissions are determined based on the available hearing date that is set either by the parties’ mutual agreement or, in the absence of agreement, by the court. There can be multiple rounds of written submissions; in more complex cases, three rounds are usually envisaged. It is more efficient and faster to set the procedural calendar by the parties’ mutual agreement rather than wait for the court to set one, because courts often do this only several months after the introductory hearing. All time limits can be changed during the proceedings if the parties agree. Complying with the time limits fixed by the parties or the court is obligatory, which means that legal briefs must be filed with the court on the specified dates and must be simultaneously communicated to the opposing party. Late submissions will be excluded ex officio. The party’s last legal brief is the ‘synthesis brief’, which replaces all previous briefs. The judge must only respond to the arguments developed in the synthesis brief.
Special arrangements concern the submission of evidence. The plaintiff should submit its pieces of evidence to the opposing party within eight days from the date of the introductory hearing. Any additional pieces should be submitted together with the legal briefs. The evidence must also be filed with the court, but this should only happen 15 days before the hearing or at a different date specified by the court. There is no sanction for late filing. As a last resort, the documentary evidence can also be submitted to the court at the hearing itself.
At the hearing, which is open to the public, the parties present their case by way of oral pleadings. Thereafter, the debates are closed and the judgment will follow. In principle, this takes about a month, but courts can also take longer because no obligatory time limits are imposed on them to hand down a decision.
Judgments are not provisionally enforceable unless, following a specific substantiated plea, provisional enforceability is granted by the court. To substantiate this plea, a risk of the defendant’s insolvability must be established. If the plea is denied, the judgment can only be enforced as soon as it becomes final (i.e., after the time limit for lodging an ordinary recourse measure has elapsed or after the appeal judgment is rendered).
Ordinary means of recourse are appeals and oppositions (i.e., recourse against default judgments). The time limit for lodging an appeal or opposition starts to run on the date the first instance court’s judgment is served on the parties, and this is a 30-day period for Belgian parties. This period is extended for non-Belgian parties in the same way as the time periods that apply to writs of summons. There are also extraordinary means of recourse, which include an appeal before the Court of Cassation, on points of law only, which is available against all appeal judgments, and a third-party opposition, which is the most common. Third-party opposition against a decision is pursued by a person who was not a party to the proceedings but whose rights are disadvantaged by the decision.
Interim relief is available under Belgian law. It can be obtained before or parallel to the proceedings on the merits of the case. It includes conservatory attachment of assets and any other measure to protect the applicant’s rights.
Conservatory attachment is governed by separate procedural rules. It is available with regard to goods or debtors’ claims against third parties, such as bank accounts. Claims and goods can be directly attached by the bailiff in the conservatory way, without obtaining leave of the court beforehand, if specific conditions are met. Otherwise, preliminary authorisation of the attachment judge is necessary. Proceedings before this judge are initiated by an ex parte application and finalised within a very short time by the judge’s decision. To obtain leave of court, it is necessary to establish urgency as well as the fact that the claim is due and certain. Means of recourse, including third-party opposition, exist to quash the judge’s authorisation and to lift the attachment.
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 and labour courts in matters relating to their respective jurisdiction. The application is lodged by a writ of summons, and similar rules to those regarding the organisation of the normal proceedings apply. However, time limits are much shorter. In extremely urgent cases, it is even possible to receive interim relief on the same day (e.g., when a piece of evidence must be protected from disappearing). Typically, however, and depending on the caseload, an interim order can be obtained within a period of several weeks to a few months.
The application will be granted if 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 character of the relief is established. The interim order is provisional and has no res judicata effect on the merits of the case. It is provisionally enforceable.
A separate type of quick relief is available in the form of injunctions. These are possible in cases involving, for example, breaches of intellectual property law or fair competition rules and are available only if statute allows for this explicitly. These proceedings deal with the merits of the cases, and the judgments will settle the parties’ subjective rights in a definite manner, but the schedule followed in these proceedings will be the same as in summary proceedings and, therefore, quicker than in ordinary proceedings on the merits of a case.
iii Class actions
Class actions were introduced into the Belgian legal system on 1 September 2014.
Class actions can be pursued in matters involving mass damage (i.e., only by a group of consumers who have sustained loss as a result of the same cause that took place after the new law’s entry into force). A group representative represents the group. This representative is either an association that is recognised by the government or one of certain consumer organisations. The class action is admissible if the following conditions are met:
- a the cause of damage relates to the company’s breach of its contractual obligations or 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;
- b the action has been instituted by a group representative who fulfils the requisite criteria and is considered suitable by the judge; and
- c lodging a class action is more suitable than lodging a claim within normal proceedings.
The decision on the admissibility of the class action will specify which system, opt-in or opt-out, applies to the consumers’ group.
To the best of our knowledge, several class actions based on this new law have been launched so far. One concerns air travel, another relates to rail transport matters, and yet another to ‘Dieselgate’. Some associations have also been recognised as group representatives, and some among them have announced intentions to launch further series of class actions (e.g., as an aftermath of this year’s news about car engine software modifications). As the class action proceedings that have been launched have not progressed significantly, it is still unclear how class actions will be handled in practice by the courts. The only courts competent to hear these types of cases are the Brussels Court of First Instance or the Commercial Court, in matters relating to their respective jurisdictions. But even before the introduction of the new law, it was possible for plaintiffs to join forces and institute proceedings together in one court case relating to the same cause of action. In such cases, individual plaintiffs were represented by one attorney. However, this type of proceeding was not free of technical and practical difficulties relating to, for instance, multiple addresses for document service purposes.
iv Representation in proceedings
Attorneys enjoy a monopoly on pleading before courts, which means that no other person can represent parties before courts unless the law specifically states otherwise. There are some exceptions, including the admissibility of representation of a natural person by a family member before the justice of the peace, or the unions’ representation of employees before the Labour Court.
However, there is no obligation for a party to have attorney representation in Belgian court proceedings, except if the case is heard before the highest court, the Court of Cassation, and unless the court finds that a party representing itself is unable to present its case in a proper and calm way, in which case the court may impose on a party the obligation of representation by an attorney. Also, certain specific motions, such as ex parte motions or motions to challenge a judge, must be filed by an attorney. Litigants, both natural persons and legal entities, may therefore represent themselves in the proceedings. Legal entities may be represented by their authorised organs if proof of authority is furnished.
In practice, it is highly unusual for parties to represent themselves, except if the case is very simple (e.g., before justices of the peace or police judges).
v Service out of the jurisdiction
Service out of jurisdiction may be done under simplified rules of the Hague Convention of 1965 or, within the European Union, under Regulation No. 1393/2007, if these instruments apply to the given case. If not, service is done according to domestic rules.
The domestic rules do not differ depending on whether the party being served is a natural or legal person. If service is done by the bailiff, he or she will send the documents to the postal address by registered mail, or air mail if the service does not concern a neighbouring country. If the person’s address is unknown, service is done on the attorney general who has jurisdiction in the district of the court where the case will be heard. Service out of jurisdiction will be considered invalid if proof is furnished that the party on whose request the document was served knew its opponent’s Belgian address. If the foreign person in question is encountered in Belgium, service can be done on this person personally on such an occasion.
Some notifications issued by courts during court proceedings, such as information on changes to hearing dates, do not require formal service by the bailiff but only a formal notification by the court’s clerk. Such notifications are done by mail or in other forms provided by the law, such as court mail. In practice, it is often suggested by the court’s clerk, for practical reasons, that foreign parties provide an address for notifications of court documents in Belgium (e.g., at their attorney’s offices). The documents are then delivered to the indicated address.
vi Enforcement of foreign judgments
Enforcement of foreign judgments is governed in Belgium either by international instruments, such as treaties or European regulations that provide for simplified uniform requirements, or according to Belgian private international law rules.
Foreign judgments can be enforced if they have been granted exequatur. Exequatur under Belgian domestic law will be granted following an ex parte application, lodged together with an authentic certified copy of the judgment, a certificate or evidence confirming that the decision is enforceable in the country of origin, a certificate confirming that the decision has been served on the debtor and, for default judgments, the original or certified copy of the document establishing that the document by which the proceedings were instituted has been served on the defaulting party.
Exequatur will only be refused in exceptional circumstances, for example:
- a if the result of granting the exequatur will be manifestly contrary to Belgian (international) public policy;
- b if the debtor’s rights of defence were violated;
- c if the judgment was only obtained to evade the application of the law designated by Belgian conflict of laws rules (only in cases where the parties are not free to dispose of their rights);
- d if the judgment is still open to ordinary recourse under the law of the country where it was rendered;
- e if the foreign judgment is irreconcilable with a Belgian judgment or an earlier foreign judgment that can be recognised in Belgium;
- f if the claim was brought after the claim between the same parties and the same cause of action had been lodged before a Belgian court, and the proceedings regarding this claim are still pending;
- g if Belgian courts have exclusive jurisdiction; or
- h if the foreign court’s jurisdiction was based solely on the presence of the defendant or assets located in the country where the judgment was rendered and without any link to the dispute. Specific grounds for refusal of enforcement are provided for judgments in, for example, intellectual property or insolvency matters.
vii Assistance to foreign courts
Belgian courts can assist foreign courts in obtaining evidence according to procedures laid down in the Hague Convention on civil procedure of 1954 or in European Regulation No. 1206/2001. Pursuant to the latter, foreign courts can ask Belgian courts to take evidence on their behalf or request permission to do so themselves. Under the Hague Convention, assistance by Belgian courts may be provided for following a letter of request transmitted to the Belgian Ministry of Justice.
viii Access to court files
In Belgium, no general principle of publicity of court files and proceedings applies. Only hearings, reports and judgments are public or publicly available.
A member of the public cannot obtain evidence in relation to ongoing proceedings, but can participate in the hearings during which the case is pleaded, unless the court has ordered the hearings to be held behind closed doors. After the completion of the proceedings, members of the public can obtain a copy of the judgment, but not of any other documents that were exchanged during the proceedings. If a copy of the decision is requested by a third party, privacy of the parties and proceedings (judges and clerks) could be safeguarded by blanking out or redacting the names. In practice, court clerks are very cautious in granting members of the public access to case judgments.
ix Litigation funding
Litigation is predominantly funded by litigants themselves. Parties with insufficient income can apply for pro bono legal assistance that is paid for by the Belgian state.
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 when the seat of arbitration is in Belgium. Foreign third-party funders are beginning to offer their services in Belgium. So far, one UK funder has established a branch in Antwerp.
IV LEGAL PRACTICE
i Conflicts of interest and Chinese walls
Conflicts of interest are a matter solely of the ethical rules binding lawyers. There are several bar associations in Belgium, but the rules on conflicts of interest are similar for all of them. Conflicts of interest and their violations are managed and sanctioned by the bar associations.
The fundamental principle is that attorneys must be independent and may not represent conflicting interests. Conflicts of interest occur when, in a client’s case, an attorney is influenced by interests of other or former clients, of other third parties, or by his or her own interests, and when such influence can be demonstrated as probable in an objective manner. Although it is generally prohibited for an attorney to act against current or former clients, some exceptions are allowed. Common to all exceptions is the client’s explicit consent to the attorney’s representation of conflicting interests.
The same law firm’s representation of clients with conflicting interests is not explicitly prohibited by ethical rules, but is also not an encouraged or common practice. Chinese walls must then be implemented. It is crucial that sufficient measures are taken to ensure the effective separation and protection of the respective clients’ confidential information, and that not only a figurative but also a physical separation of teams, case files, digital files, etc. is implemented, as if separate law firms were handling the respective clients’ cases. In practice, Chinese walls are implemented in corporate or competition law cases, but not in litigations.
ii Money laundering, proceeds of crime and funds related to terrorism
Attorneys are subject to European and Belgian laws as well as ethical rules on prevention of money laundering and terrorism. Not only are they prohibited from receiving any funds that were obtained by a criminal act, they also have an obligation to execute due diligence and actively report suspicious transactions. This obligation arises in connection with legal assistance regarding actions that are considered suspicious (e.g., sale or purchase of real estate, managing assets, opening bank accounts, setting up and managing business associations, or acting on behalf of the client regarding financial or real estate transactions). In relation to such cases, attorneys are obliged to verify the client’s identity and the precise nature of the transaction, and remain particularly cautious in identifying suspicious elements. They must report any actions relating to money laundering or the financing of terrorism, or any suspicions of such actions, to the local bar association’s president, who in turn can transmit this information to the Belgian Financial Intelligence Processing Unit.
Given the nature of these obligations, litigation attorneys are practically never confronted with them.
iii Data protection
Under the Belgian data protection statute, which implements the European Data Protection Directive, the processing of personal data is subject to strict conditions, including, among other things, the subject’s agreement and the pursuit of a legitimate interest. These rules also bind legal professionals and, therefore, apply when attorneys gain access to personal data for the purposes of locating documents or evidence. Sharing personal data with a country outside the European Union is only possible under specific conditions.
In Belgian litigation practice, sharing personal data hardly ever poses any difficulties.
V DOCUMENTS AND THE PROTECTION OF PRIVILEGE
Privilege is an unknown concept in Belgian law. Rather, attorneys are bound by a duty of professional secrecy that is governed by the Belgian Criminal Code and legal ethical rules. It is a matter of public policy that cannot be dealt with, nor can it be waived by parties’ agreement. Professional secrecy relates to all acts of client–attorney communication (i.e., correspondence, memoranda, advice, information provided by the client, and telephone or other conversations). However, client–attorney communication can be submitted as evidence in court in favour of the client, but not against him or her, and only by the attorney or client and not by third parties. Professional secrecy can be set aside only in exceptional circumstances (e.g., in circumstances of emergency as defined by criminal law, when the secrecy contradicts a higher moral value; for example, in the case of a threat to human life, where the attorney has to report crimes against minors or vulnerable persons about which the attorney learned during the handling of the case, or where the attorney’s rights of defence require disclosure of certain information, while taking into account the principle of proportionality). Attorneys should not accept cases in relation to which they could be called to testify. If this happens, attorneys can refuse the testimony by invoking professional secrecy.
Specific European rules on professional secrecy relate to European competition law and fighting terrorism and money laundering.
Also, in-house lawyers who are members of the Belgian Institute of In-house Counsel are bound by the duty of professional secrecy. However, this duty only relates to legal advice given by a lawyer to his or her employer and its affiliated companies, as well as related correspondence (draft agreements are, however, not protected by this duty).
Recent developments, such as the adoption of anti-money laundering and terrorism laws, indicate enfeeblement of the, generally, absolute character of the duty of professional secrecy. Bar associations, however, plead for strict compliance with this duty, which protects the fundamental interests of clients, attorneys and society as a whole.
ii Production of documents
In principle, each party should produce documents to satisfy its burden of proof. If such documents are in the possession of the opponent or a third party, and have not yet been submitted, the court may order their production. This is only possible if there are serious, concrete and consistent presumptions that the opponent or third party holds a document that can provide evidence of a fact relevant for the resolution of the case. It is sufficient that the fact is relevant, it does not have to be of overriding importance for the resolution of the dispute. A fact is relevant if it shows a serious connection with the subject matter of the dispute. If the fact is already proven by means of other evidence it will not be considered relevant. Fishing expeditions are not allowed. The document, in whatever form, must be clearly identified. Therefore, documents stored electronically will be subject to production only if the party proves their existence and sufficiently identifies and describes them. The fact of possession, not control of the document, is crucial. If a party shows that it does not hold the document, it will not be ordered to produce it. A third party effectively holding this document, however, may be ordered to produce it. Orders for production of documents can be coupled with fines for failure to comply.
Courts have broad discretion in deciding on requests for documents and evidence production. If a request is held to be oppressive or disproportionate, it will not be granted lightly.
VI ALTERNATIVES TO LITIGATION
An increasing number of disputes are settled by arbitration, particularly those with significant financial interests or confidentiality requirements.
National and international arbitration proceedings whose seat is in Belgium are governed by the Judicial Code, which, since 2013, has been based fully on the UNCITRAL Model Law. This law introduced several major changes to support the development of arbitration: more flexibility, increased state support with respect to pending arbitral proceedings, centralisation, and specialisation of courts that are competent in arbitration matters.
Enforcement of international arbitral awards is also governed by the new code, unless the application of the New York Convention of 1958 prevails.
The arbitral institutions to which parties most commonly submit their disputes are CEPANI, the Belgian Centre for Arbitration and Mediation formed in 1969, and the International Chamber of Commerce, which is particularly popular in international disputes. Some arbitration proceedings (e.g., in the maritime and insurance sectors in Belgium), are rather held in ad hoc proceedings. In general, resolving disputes through arbitration is becoming ever more popular.
An appeal against an arbitral award is only possible if it is provided for in the arbitration agreement. Otherwise, an award rendered in Belgium can be challenged on similar grounds as laid down in the UNCITRAL Model Law. Parties to disputes with no links to Belgium can exclude the award challenge proceedings entirely.
Arbitration has been subject to major developments in recent years, including the amendment of the Belgian law on arbitration and of the CEPANI Rules in 2013. It is expected that these changes will attract more domestic and international parties to arbitration in Belgium. First decisions by state courts based on the new law are being rendered and confirm the positive approach of Belgian courts towards arbitration.
Mediation is also governed by the provisions of the Judicial Code, which were modified in 2013. Several institutions, such as CEPANI, provide a framework for mediation proceedings. Mediation, particularly in commercial disputes, is not very common, however. Nevertheless, an increased number of mediation proceedings can be seen in family matters. This year, a new federal mediation service has been launched for consumers. It is hoped that this service will facilitate the resolution of B2C disputes.
iii Other forms of alternative dispute resolution
Other forms of alternative dispute resolution are not very widespread in Belgium. Expert assessments of a case are sometimes sought with respect to determination of price (e.g., of shares or goods). In construction contracts, expert panels are also sometimes sought to resolve disputes, as is conciliation. Some institutions, such as CEPANI, offer other forms of alternative dispute resolution procedures (e.g., mini-trial, adaptation of contracts and support or specific procedures for the resolution of domain name disputes).
VII OUTLOOK AND CONCLUSIONS
The latest innovative legislative developments undertaken by the 2014-elected parliament and other pragmatic solutions adopted by the courts have already demonstrated positive results. Further optimistic outlooks of increased efficiency of dispute resolution before state courts are to be expected as the developments progress. Alternative means of dispute resolution continue to develop. Thanks to increased government initiatives, it is expected that mediation, especially, will gain in popularity.
1 Jean-Pierre Fierens is a partner and Joanna Kraus-Kolber is an associate at Strelia.