Litigation 2024 Comparisons

Belgium is a civil law jurisdiction. The law is established by statutes issued by the federal and regional parliaments.

Legal proceedings in civil and commercial matters are governed by the Belgian Judicial Code. They are conducted on an adversarial model, through both written submissions and oral argument. Belgium does not have jury trials in civil and commercial matters; juries are only utilised in the most severe criminal cases.

The civil court system has a three-tier structure.

District courts will hear cases in the first instance. Depending on the subject matter and the nature of the parties, the competent courts will either be:

• the Enterprise Courts (Ondernemingsrechtbank/Tribunal d’entreprise), for disputes between enterprises;
• the Labour Courts (Arbeidsrechtbank/Tribunal de travail) for employment disputes; or
• the Courts of First Instance (Rechtbank van eerste aanleg/Tribunal de première instance) for general civil matters and enforcement proceedings.

Small claims (below EUR5,000) and specific matters (eg, disputes relating to lease contracts) fall within the competence of the Justice of the Peace (Vredegerecht/Justice de Paix).

First instance judgments rendered by the district courts can be appealed to the Courts of Appeal. Appeals against judgments of the Justice of the Peace are brought before the Courts of First Instance. The appellate courts will conduct a full review of the matter.

Lastly, the judgments of the appellate courts can be appealed to the Belgian Supreme Court (Hof van Cassatie/Cour de Cassation). However, the Supreme Court review is limited in scope. The Supreme Court does not conduct a review of the facts; it will merely review the application and interpretation of the law. The Supreme Court either confirms or annuls the appeal judgment.

Court filings are not accessible to third parties.

Court hearings in civil and commercial matters are generally open to the public, except for certain matters that are heard behind closed doors.

In special circumstances, courts can adopt precautionary measures to maintain the confidentiality of documents produced as evidence.

The Belgian Judicial Code also provides for specific rules regarding confidentiality in matters relating to trade secrets.

Pursuant to the Act of 16 October 2022, a publicly accessible database for court decisions (the “Central Registry for Judicial Decisions”) should be in place by 31 December 2023. To preserve the parties’ privacy, the decisions published in the central registry will be redacted.

Parties are entitled to appear in court in person without representation by a lawyer. Companies must be represented by a director with power of representation.

Lawyers registered with one of the Belgian bar associations have rights of audience in Belgian courts. However, rights of audience before the Belgian Supreme Court are restricted to a select group of lawyers with special accreditation.

Foreign lawyers – EU

Lawyers from EU member states are allowed to practise in Belgium. To do so, they can request registration on the list of EU lawyers. Lawyers on the EU list have rights of audience but only if assisted by a fully qualified lawyer, registered on the regular list.

Foreign lawyers – non-EU

Foreign lawyers from outside the EU do not have rights of audience in Belgium.

No Statutory Framework

Third-party funding is not regulated in Belgium. In the absence of any statutory rules or prohibition, third-party funding is generally considered to be permitted.

To date, there is no known case law from Belgian courts regarding the legality of third-party funding.

Lawyer’s Ethical Standards

When instructed by a client that benefits from third-party funding, lawyers must be mindful to respect the Bar Association’s ethical standards, including:

• the obligation to act solely in the client’s best interests;
• the obligation to act independently (and thus uninfluenced by a third party, such as a funder); and
• the obligation to uphold professional secrecy.

Given the lack of a statutory framework, there are no formal restrictions regarding the type of lawsuits that can benefit from third-party funding. Nevertheless, third-party funding is not commonly used in Belgium. This is due to several reasons:

• The costs of litigation are relatively low in Belgium.
• The adverse cost risk is fairly limited (see 11. Costs).
• The Belgian class action regime is limited in scope and less frequently used than in certain other EU jurisdictions, such as the Netherlands. In addition, the statutory provisions regulating class actions are unclear as to whether a funder would be entitled to a share in the proceeds of the case.

In theory, third-party funding is available for both the plaintiff and defendant. However, in practice, third-party funders rarely provide funding to defendants.

The minimum and maximum amount a third-party funder will fund depends on a number of factors, including:

• the legal merits of the case;
• the quantum of the claim;
• the prospects of enforcement and recovery; and
• the funder’s portfolio diversification and preferences.

Third-party funders are generally open to fund any type of costs relating to legal proceedings, including:

• lawyer fees;
• court fees;
• expert fees; and
• adverse cost risk.

However, third-party funders will determine what costs can be funded on a case-by-case basis, taking into account the factors mentioned in 2.4 Minimum and Maximum Amounts of Third-Party Funding.

Pursuant to Article 446 ter of the Belgian Judicial Code, contingency fees (“no win, no fee", or “pactum de quota litis”) are not permitted. However, fee agreements that include a success fee payable in addition to fees that are not dependent on the outcome of the matter (fixed fees; hourly fees), are permitted.

Given that third-party funding is not regulated in Belgium, there are no time limits for obtaining or disclosing third-party funding. However, it is advisable to disclose the existence of third-party funding and the identity of the funder to avoid potential conflicts of interest. This is especially the case in arbitration, where disclosure of third-party funding is often governed by arbitration rules.

Pre-action conduct requirements can be imposed either by law or as agreed by the parties.

For example:

• A claim based on breach of a contractual obligation must be preceded by a formal notice or demand letter. However, this is not mandatory law, and parties can therefore agree to derogate from this default rule.
• In commercial contracts, parties will often include a dispute resolution clause that mandates mandatory mediation or settlement negotiations prior to initiating legal proceedings.

Contractual arrangements regarding pre-action conduct are enforceable.

The courts can inquire as to the parties’ attempts to settle the dispute prior to the proceedings.

The applicable statutes of limitation depend on the nature of the claim. Broadly speaking, the main limitation periods are:

• ten years for contractual claims, starting from the day after the due date of the relevant contractual obligation;
• five years for claims in tort, starting from the day after the date on which the claimant was aware of both the damage (or aggravation thereof) and the identity of the person liable for the damage; however, the claim will in any case be time barred 20 years (and one day) after the event causing the damage;
• ten years for claims regarding the recovery of real property; this limitation period will be extended to 30 years if the possessor gained possession of the real property in bad faith; and
• five years for payment of interest and other recurrent debts that fall due on an annual (or shorter) basis.

Please note that special – often shorter – limitation periods are provided in specific laws.

Filing a claim in court suspends the time limitation until a final decision is rendered.

Subject Matter Jurisdiction

The rules on subject matter jurisdiction are set out in the Belgian Judicial Code. Some district courts have exclusive jurisdiction on certain matters (eg, labour courts for employment matters; enterprise courts for insolvency and corporate disputes).

Territorial Jurisdiction

In the absence of a contractual forum clause designating the competent court, proceedings are generally brought before the court of the domicile of the defendant. The Judicial Code provides for alternative jurisdiction rules – eg, the court of the place of performance of a contract.

In certain matters, specific jurisdiction rules are mandatory, eg:

• the court of the place of a company’s registered seat (corporate disputes); or
• the court of the place where real property is located (lease or tenancy disputes).

International Jurisdiction

International jurisdiction in cross-border disputes is governed by the Brussels I Recast Regulation and the Belgian Code of Private International Law. As an EU member state, Belgium is also bound by the 2005 Hague Convention on Choice of Courts Agreements.

Legal proceedings are most commonly initiated by serving a writ of summons (dagvaarding/citation) on the defendant.

For certain types of claims, proceedings can also be initiated by filing a petition (verzoekschrift/requête) with the court.

The writ of summons or petition contain the following elements:

• the identity of the parties;
• statement of facts;
• legal arguments; and
• the claim(s).

The writ of summons does not need to be exhaustive, and the claimant is allowed to add facts and arguments in its written submissions following the writ of summons. The claimant is also allowed to amend its claim(s). However, the amended claims must be based on the facts stated in the initial writ of summons.

If proceedings are initiated through a writ of summons, the writ will be served on the defendant by a bailiff, upon instruction of the claimant.

If proceedings are initiated by a petition filed with the court, the court will notify the defendant.

Foreign defendants can be sued in Belgian courts without prior court approval. The minimum time between the service of the writ and the introductory hearing will differ depending on the location of the foreign plaintiff.

If a defendant fails to respond to a lawsuit and does not appear or is not represented at the introductory hearing, the claimant can ask the court to render a judgment in default. However, the defendant will be able to appeal the default judgment.

Class Actions

Class actions were introduced in Belgium in 2014, albeit with limited scope.

Class actions are available only for harm caused to consumers or SMEs. The claim must be based on breach of contractual obligations of the defendant, or violations of Belgian and EU rules defined in Article XVII.37 of the Code of Economic Law.

A class action is brought by a group representative, which must be an accredited or specifically designated association, non-profit organisation or public entity.

The court will determine whether the class action is brought on an opt-in or opt-out basis. Claims for compensation for certain types of harm (eg, bodily harm) can be brought exclusively on an opt-in basis.

Group Direct Actions

Outside the framework of a class action, groups of plaintiffs can bundle individual claims and file proceedings jointly. This requires a sufficient nexus between the plaintiffs’ individual claims.

It is not mandatory for lawyers to provide clients with a cost estimate of potential litigation at the outset of legal proceedings.        

Under Belgian law, there is no distinction between pre-trial and trial proceedings. During the proceedings, and at any time before a final judgment is rendered on the merits, interim measures and relief can be requested.

Such interim measures and relief can serve two main purposes:

• investigations in the case; for instance, the appointing of a judicial expert to issue an expert opinion; or
• addressing or organising specific aspects of the case on an interim basis while awaiting a final judgment on the merits or until the circumstances change.

No proceedings to adjudicate the case without a trial or hearing exist. On the other hand, cases requiring only short debates can be dealt with at the first hearing. This needs to be requested in the document (for instance writ of summons) that initiates the proceedings. A judge can either grant or refuse such request.

Dispositive motions cannot be made before the trial or hearing. On the other hand and as mentioned in 4.2 Early Judgment Applications, an early judgment application can be requested in the document initiating the proceedings.

Parties either join a lawsuit voluntarily (by application) or involuntarily (by being summoned or through a submission filed against them when they are already part of proceedings). The option to join a case is available at any point during first-instance proceedings, up until such proceedings are officially closed.

A Belgian defendant may request a “cautio judicatum solvi”, which obliges a foreign claimant to deposit a security amount determined by the judge. However, this is applicable only to claimants from outside the EU or from countries with which Belgium has not entered into an international treaty concerning this matter.

Costs regarding interim applications are not specifically regulated. If the court appoints an expert, the party appointed by the judge to pay the expert’s fees will be required to advance them. The court will only make a final determination of costs at the end of the case, once the merits of the claim have been decided.

The timeframe for interim measures typically varies from a couple of days to several months, depending on the discretion of the competent court. In genuine emergencies, proceedings can be submitted to the president of the relevant court.

Belgian civil law does not have a formal discovery process. However, there are proceedings for taking evidence, such as the production of documents, the hearing of witnesses, and the examination of the parties. The production of a document is broadly defined and can include written documents, electronic data, and photos. Documents must be specifically identified to avoid fishing expeditions, which are prohibited. There are no mechanisms to limit the scope or cost of these proceedings, but documents protected by trade secrecy or legal privilege may be excluded.

A judge may order a third party to produce documents if the third party holds the requested documents. The judge will invite the third party to submit the documents to the court file, along with any remarks the third party may have. The parties may then respond to the third party’s remarks. After that, the judge will decide whether or not the documents must be produced. This decision is final and cannot be appealed or opposed.

See 5.1 Discovery and Civil Cases.

See 5.1 Discovery and Civil Cases. In Belgium, evidence is typically provided through the exhibits attached to the submissions filed with the court.

Clients benefit from attorney-client privilege whereby lawyers cannot disclose information provided by their clients. In-house counsels have a confidentiality obligation regarding advice provided to employees in their legal advisory role.

In matters related, for instance, to trade secrecy, a party may refuse to produce certain documents or may be allowed to produce certain documents after they have been anonymised.

Injunctive relief applies in interim measures or emergency proceedings. Anti-suit injunctions are not permitted. In case of parallel proceedings, a court may invoke lis pendens.

See 4.7 Application/Motion Timeframe.

In cases of absolute necessity, injunctive relief may be granted ex parte, subject to the following conditions:

• exceptional or absolute urgency;
• the measure requires surprise; and
• the absence of an adversary, or the inability to identify the person or entity against whom the measure is sought.

Any party opposing such an injunction may request an adversarial (“contradictoire”) hearing by the court.

In ordinary proceedings, the respondent may claim damages from the applicant if the applicant fails to act as a reasonable, prudent, and diligent person. This duty of good faith is even more stringent when the application is made ex parte.

Furthermore, if the applicant enforces an injunction while an appeal is pending and the appellate court reverses the injunction, the applicant is liable for the damages suffered by the respondent. The respondent may also claim higher procedural fees if the applicant acted abusively. Finally, a judge may impose a fine on the applicant for abuse of process.

Where a Belgian judge has international competence to rule on the merits of the case, its competence also extends to issuing injunctive relief against the assets of the respondent globally. However, such injunction may face enforcement issues. For EU Member States, the enforcement is governed by the Recast Brussels Regulation. For non-EU Member States, it will be enforced in accordance with the applicable laws of the foreign State.

See 5.2 Discovery and Third Parties with respect to the production of documents by third parties.

If the respondent fails to comply with an injunction, they will be subject to the same consequences as if they had failed to comply with an ordinary judgment. An injunctive relief order may impose penalties in case of non-compliance if requested by the claimant. Damages may also be claimed if such damages are caused by a violation of the injunction’s terms.

The first hearing will typically determine the course of the proceedings: (i) default, (ii) early judgment, or (iii) full proceedings. In case of full proceedings, parties typically agree on a procedural calendar for the exchange of briefs. If an agreement cannot be reached, the court will set a calendar. Once the final briefs have been exchanged, a hearing is usually convened for oral arguments. Alternatively, parties can mutually decide to forgo the hearing in favour of a written procedure.

Following the hearing or the conclusion of the written procedure, the judge will take the matter into deliberation. A judgment is generally expected within a month after the final hearing. However, this timeline may be extended depending on the specific circumstances of the case.

In Belgium, case management is not governed by a uniform set of rules; instead, it varies from one court to another. See also 7.1 Trial Proceedings.

Under Belgian law, there are no jury trials in civil cases.

Under Belgian law, there are no specific rules concerning the admission of evidence or procedures for evidence collection before the trial commences. Generally, the onus is on the claimant to substantiate their claim through relevant evidence.

Expert testimony is permitted at trial, typically by means of exhibits filed by the parties. A judge may also appoint a court expert for factual matters. Courts are not obligated to adhere to expert opinions or testimonies, as doing so would effectively delegate their judicial authority to make final rulings on cases. This maintains the court’s autonomy in evaluating evidence and reaching its own conclusions.

As a general rule, hearings and their transcripts are open to the public. Exceptions are made in cases where public order might be compromised, or in specific circumstances, such as hearings involving court-appointed experts.

The level of intervention by judges varies. Typically, judges listen to the arguments presented and intervene as required. Some judges engage in what is known as “interactive debates”, taking a more active role during the hearing. In civil cases, judgments are not usually rendered during the hearing but at a later date.

In general, a judgment in civil matters is typically reached within a year following the initial hearing. However, appeal proceedings are more time-consuming, usually taking between two to five years. This timeframe can vary based on the case’s complexity and the number of magistrates in the relevant court of appeal. For cases involving interim or emergency measures, the duration is significantly shorter, in line with the urgent nature of such proceedings.

Court approval is not necessary to settle a lawsuit. If the parties sign a settlement agreement, this settlement is binding. The parties will then inform the court that the dispute has been settled. Alternatively, the parties may also ask the court directly to sanction their agreement in an “agreement judgment”, which provides the parties with an enforceable title.

The settlement of a lawsuit can remain confidential since it is possible for parties to settle their dispute without the involvement of the courts or any third parties. Once a settlement is concluded, the parties can formally withdraw the lawsuit without disclosing the content of the settlement to the court.

Moreover, to ensure confidentiality, the parties can provide for non-disclosure obligations in the settlement agreement.

When one of the parties continues legal proceedings, despite the dispute already being settled in a settlement agreement, the other party may invoke the settlement agreement to have the claim dismissed.

If a party acts in breach of a settlement agreement, the other party can file suit for breach of contract and claim either specific performance, damages, or termination of the settlement agreement.

A settlement agreement may be set aside if deemed invalid by the court (eg, if one party is found to have deceived the other), or if the agreement is terminated for material breach.

However, it is not uncommon for settlement agreements to include provisions excluding the right to terminate for material breach and limiting the possibility of having the agreement declared null and void.

Traditionally, the preferred remedy in Belgian law is specific performance. However, if the performance of the contract is no longer possible or desirable, the most common remedy is compensation (ie, damages).

Other remedies that courts can award include:

• cease and desist orders; and
• civil penalties (dwangsom/astreinte) that accrue in case of non-compliance with a court order; civil penalties cannot be granted in case of an order to pay a sum of money.

Damages are available to compensate for any damage caused by fault or negligence, provided that there is a causal link between the damage and the fault or negligence.

The core principle of civil liability law in Belgium is full restitution for the injured party, placing them in a position as if the damage had not occurred. The injured party is therefore entitled to full compensation.

If it is difficult to determine the amount of damages, the judge may make a decision based on their own best judgment (“ex aequo et bono”).

Punitive damages are not available in Belgium.

When one of the parties delays the payment of their debt, which is a clearly determined sum of money, the other party is entitled to moratory interest. Moratory interest is interest accrued in accordance with the legal interest rate, which is determined by statute, though parties may also determine a different interest rate in their contract. Generally, such interest accrues as of the date of the notice of default by the creditor.

Belgian law also recognises compensatory interests. Compensatory interest is only applied if the amount of money owed by the debtor is not clearly determined. The rate, in this scenario, compensates for actual damage suffered, meaning the judge has the discretion to decide what the appropriate rate should be.

Normally, interest is calculated as simple interest. Compound interest is permissible exclusively for moratory interest and only under specific conditions, namely after a full year of interest accrual.

Domestic judgments, if not complied with voluntarily, are usually enforced by the seizure of the debtor’s goods by a judicial officer, which are then sold; the proceeds of this sale are used to pay the known creditors.

Foreign judgments may be enforced in Belgium after the issuance of an exequatur. However, judgments from other EU member states are directly enforceable without exequatur, in accordance with the EU’s Brussels I Recast regulation.

See 1.2 Court System.

Practically all judgments in Belgium can be appealed, except in cases where the law specifically prohibits an appeal, such as with small claims. The party or parties dissatisfied with the first instance judgment can lodge an appeal. Appeals made to the Belgian Supreme Court are limited to legal analysis and do not involve a review of the factual elements of the case. The Supreme Court’s role is not that of a third instance. If it opts to annul a judgment, the case is transferred to another court of appeal for re-examination.

In general, the appeal must be lodged within one month from the date of service of the first instance judgment or, if applicable, from the date of notification. It must be lodged with the competent court of appeal. For supreme court proceedings, a three-month term applies, and the appeal is filed via a lawyer admitted to the Supreme Court Bar.

The court of appeal will only rule within the limits of the appeal formulated by the parties. See also 10.2 Rules Concerning Appeals of Judgments.

The court of appeal cannot impose conditions on granting an appeal.

The court of appeal will either confirm the first instance judgement or overturn it in whole or in part. The Supreme Court will either confirm or annul the judgment in whole or in part.

The losing party pays the costs of the proceedings, including the attorney’s fees based on a lump sum that is governed by Royal Decree. If a counterclaim is successful, the costs may also be shared.

In most cases, the amount at stake determines the applicable lump sum for the attorney’s fees and may be increased or decreased based on certain parameters such as the complexity of the dispute, the financial capacity of the losing party, the contractual indemnities agreed upon for the successful party or the unreasonableness of the situation.

Interest can be awarded on costs although this is rarely the case in practice. However, if applied, it is calculated on arrears. 

Alternative dispute resolution (ADR) has gained considerable traction over the past five years, following a change in the Judicial Code which led Belgian courts to increasingly promote mediation. See 12.2 ADR within the Legal System in this regard.

Arbitration (see 13. Arbitration) and mediation are the most commonly used ADR methods in Belgium.

Judicial Mediation

Belgian courts increasingly promote judicial mediation as a method of alternative dispute resolution in civil and commercial litigation. Courts often actively inquire whether the parties would agree to the appointment of a mediator. Courts even have the power to appoint a mediator ex officio at the introductory stage of the legal proceedings, unless all parties indicate that they do not wish to engage in a mediation process. Notably, there are no penalties for refusing mediation.

Even when a judicial mediator is appointed by the court, the mediation process is strictly confidential. The mediator is not entitled to inform the court of discussions held between the parties in the framework of the mediation. In addition, parties remain free to end the mediation process at any time. Neither the mediator nor the parties are entitled to disclose to the court who pulled the plug or why the mediation was unsuccessful.

If the mediation is successful and results in a settlement, any party can request the court to homologate the settlement agreement. By doing so, the parties will have an enforceable title and will thus be able to enforce the settlement agreement against the opposing party.

Conciliation

Specific chambers in some courts are exclusively dedicated to conciliation (verzoening/conciliation). Unlike mediation, reconciliation is managed by a judge and is therefore not confidential. However, this method is less common and typically reserved for disputes with limited financial stakes.

The main ADR institution in Belgium is CEPANI.

The laws on arbitration in Belgium are laid down in the Judicial Code and are largely inspired by UNCITRAL. These laws deal with the conduct of arbitration and regulate the recognition and enforcement of arbitral awards. Arbitration in Belgium can either be ad hoc or organised subject to the rules of an arbitration institution (for instance CEPANI or the ICC).

Certain matters cannot be referred to arbitration, such as divorce, citizenship, employment agreement disputes, residential lease agreement disputes, non-contractual disputes with public entities, and certain IP disputes.

Challenging an arbitral award is only possible subject to strict conditions.

The challenging party must prove that:

• a party to the arbitration agreement was incapacitated;
• the arbitration agreement was invalid under the applicable law of the agreement;
• it was unable to defend its rights or was not informed of the arbitrator(s) or the arbitration proceedings;
• the arbitral award rules on a dispute that falls outside the scope of the arbitration agreement or exceeds the terms of such agreement;
• the award lacks sufficient reasoning;
• the composition of the arbitration tribunal or the proceedings are not in accordance with the arbitration agreement; or
• the arbitration tribunal exceeded its competence.

The court may also set aside an arbitral award if:

• the matter could not be referred to arbitration;
• the award violates public policy; or
• the award was obtained by fraud.

Arbitral awards can be enforced in Belgium after recognition by the court of first instance. Belgium is a party to various treaties covering the enforcement and recognition of arbitral awards. The recognition proceedings are conducted ex parte. The judgment recognising and enforcing the arbitral award must be served on the party against whom enforcement is sought. This party has one month after service to file third-party opposition against said judgment. The judgment refusing recognition or deciding the third-party opposition can be appealed before the Supreme Court but only in relation to matters of law.

There have been no official announcements regarding reforms to the dispute resolution system in Belgium.