There are only limited means to identify the assets of persons (judgment or award debtors) located in Belgium. Indeed, Article 22 of the Belgian Constitution protects the right of the debtor to privacy, including the privacy of its estate. While public registers are available for immovable properties (land and mortgage registers), these do not exist for other types of assets (movable and intangible properties).
In order to identify the asset position of another party, a party may use publicly available information (however limited), run a private investigation or perform third-party attachments (garnishments) in the hands of banks and financial institutions to identify assets in Belgium.
Under Belgian law, it is possible to request investigatory measures from a court, which would allow the collection of evidence and the potential disclosure of assets of a certain party located in Belgium. Specifically, pursuant to Article 877 of the Belgian Judicial Code, a party may request an order from the competent court forcing a debtor to disclose specific documents. Courts will only order a party (or a third party) to file a document containing evidence of a relevant fact if there are serious, precise and corroborative presumptions that a party or a third party holds said documents. While this option is only available in the course of court proceedings, investigatory measures can also be requested by means of an ex parte application if the applicant demonstrates an absolute necessity to waive adversarial proceedings (ie, extreme urgency, the need to benefit from a surprise element or the impossibility of identifying the adverse party).
Additionally, since 1 January 2019, a new procedure is available for creditors in Belgium seeking to identify assets of their debtor located in Belgium (modelled after the procedure set forth in Regulation (EU) No 655/2014 of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters). In short, when a judgment creditor has reason to believe that the judgment debtor holds one or more accounts with a bank in Belgium but cannot identify the bank(s), the judgment creditor may nevertheless initiate third party garnishment proceedings (without thereby identifying the third party or bank(s), which is normally a requirement) and at the same time request the court to obtain the information necessary to allow the bank(s) and the debtor’s account(s) to be identified from the information authority (the National Chamber of Bailiffs). The National Chamber of Bailiffs has access to a central register, operating as a centralised electronic database of information regarding accounts and financial contracts. As soon as the court receives the requested information, it makes a decision regarding the relating third party garnishment. While this procedure does require the judgment creditor to provide the court with some indications that the judgment debtor holds account(s) with certain bank(s) in Belgium, it certainly facilitates asset discovery and hence debt recovery in purely domestic cases (indeed, the procedure after which it was modelled existed only in cases of cross-border enforcement within the European Union pursuant to Regulation No 655/2014).
In Belgium, domestic judgments:
Enforcement of a domestic monetary judgment (ie, a judgment ordering a party to pay a certain amount of money) will usually imply the performance of attachments/seizures on the assets of the debtor that are located on Belgian territory.
Note that, under certain conditions, attachments may already be performed by a creditor before holding a judgment against the debtor. In that case, the creditor needs to establish that it has a claim that is certain, liquid (ie, capable of monetary valuation) and payable (ie, the debtor debt’s is due) and, moreover, that there is a certain degree of urgency that requires the assets of the debtor to be frozen pending the issuance of a judgment. This type of attachment is called a “conservatory attachment”, because it will freeze the assets attached without possibility for the claimant to be immediately paid out of them. Depending on the type of conservatory attachment performed, a prior authorisation from the competent court of attachment may have to be requested.
Conversely, once a party has a domestic judgment which is enforceable, it can perform an executorial attachment/seizure, the aim of which is to be paid out of the assets that will be attached/seized. This is usually possible on the basis of a first instance judgment, even if an appeal against that judgment is either still possible or even pending (indeed, in principle, an appeal will not suspend the enforceability of the first instance judgment, although the first instance court may exceptionally decide to suspend enforcement).
There are basically two types of executorial attachments that can be made:
Third-party attachments can be performed in the hands of banks (garnishments), with the aim of attaching the amounts held on bank accounts in the name of the debtor. Alternatively, they can be made in the hands of any other third party against which the debtor himself has a claim, with the aim of attaching said claim. Aside from the garnishment of bank accounts, a typical form of third-party attachment against a company is attaching the shares (and related dividends, for instance) that this company holds in one or more subsidiaries.
An executorial attachment/seizure is performed by a bailiff instructed by the claimant/creditor. Once the attachment/seizure is notified by the bailiff to the debtor, the latter will be able to lodge a recourse to challenge the validity of the attachment. However, such a recourse will usually not suspend the attachment as such. In certain circumstances, the creditor may request the transfer of the attached assets pending the determination of the debtor’s recourse.
Note that the performance of an attachment does not grant the claimant priority over other creditors, who will be able to join in the attachment proceedings and request payment of their claims out of the amounts attached. A creditor will enjoy priority only if he or she benefits from some sort of privilege in relation to the attached assets (for instance, a mortgage on the real estate property attached). To enable other creditors to defend their rights, any executorial attachment performed by a bailiff will be made public in a register before the assets can be sold to satisfy the creditor’s debt.
Finally, if the debtor is an insolvent commercial entity (it does not necessarily need to be incorporated as a company), the claimant may also lodge insolvency proceedings, which will lead to the appointment of an insolvency receiver in charge of identifying the assets of the debtor in view of paying the various creditors.
As noted above, the enforcement of domestic judgments usually requires the performance of attachments or seizures on the assets of the debtor that are located on Belgian territory. The relating time and costs of enforcement vary, depending strongly on the type of attachment that is performed (attachment of immovable or movable assets of the debtor, third-party attachment) and whether the judgment debtor lodges recourse against the attachment.
Once the judgment creditor has obtained a certified copy of the judgment (een uitgifte / une expédition), which may take a few days, the creditor will need to instruct a bailiff to take further enforcement measures of the judgment.
Upon instruction, the bailiff will serve the (certified copy of the) judgment on the debtor. Service is required to notify the debtor, and acts as a final notice of default or request for payment. Executorial attachment against movable property and third-party attachment is possible just one day after service of the certified copy, and 15 days after service for immovable property.
The time required to enforce a judgment depends mainly on the type of attachment performed (attachment of immovable property is usually slower than garnishment, for instance) and on whether the debtor initiated any recourse against the judgment (before the court of appeal and, subsequently, before the Supreme Court).
As to costs, since the bailiff offers official services, the rates for acts of bailiffs in civil and commercial matters (and the rates for certain surcharges) are fixed by law and laid down in the Royal Decree of 30 November 1976. Additional costs include certain fixed costs, such as the issue fee payable to the court registry issuing the certified copy of the judgment. In principle, the costs of enforcement are recoverable from the judgment debtor.
As noted above in greater detail (1 Identifying Assets in the Jurisdiction), there are only restricted means to identify the assets of a judgment debtor located in Belgium (there are public registers for immovable properties (land and mortgage registers), but no registers for other types of assets). However, it might become easier to identify the bank(s) with which a judgment debtor holds an account with the entry into force of the new procedure to obtain information regarding accounts.
Judgment creditors usually use publicly available information, run private investigations or perform third-party attachments (garnishments) with banks and financial institutions to identify assets in Belgium.
The party against whom enforcement is sought may challenge any enforcement measures taken by the judgment creditor by launching opposition proceedings before the attachment judge (who is part of the court of first instance). Such opposition proceedings may be filed on the basis of the following reasons, amongst others:
Judgments handed down in first instance are enforceable immediately, notwithstanding any form of recourse lodged against such judgment (appeal or third party opposition). In other words, said recourse does not automatically stay enforcement; a stay of enforcement has to be explicitly requested and granted by the lower court. If the lower court has excluded the immediate enforceability of its decision (upon explicit request of the debtor), immediate enforceability may still be requested from the court of appeal. An appeal automatically suspends the enforcement of such decision only in the case of a judgment rendered by default.
Finally, judgments rendered on appeal are also immediately enforceable, notwithstanding a possible recourse before the Supreme Court.
There are no specific types of judgment that cannot be enforced. However, there might be an issue with regard to judgments ordering specific performance (so-called obligations “to perform”). When facing a refusal from the debtor to willingly perform the remedies imposed upon him in a judgment ordering specific performance, the creditor’s only option is to request penalties, which will be payable by the debtor per (day of) infringement.
In Belgium, there is no central register of all judgments.
This section focuses on judgments in civil and commercial matters; as regards the enforcement of judgments in certain specialised subject matters (such as insolvency or intellectual property rights), other instruments than the ones mentioned in the text below may be applicable.
The applicable framework for the enforcement of foreign judgments in civil and commercial matters in Belgium differs depending on the state of origin of the decision, as set out below:
On the other hand, judgments rendered in a Member State of the European Union (except for Denmark) resulting from legal proceedings instituted abroad before 10 January 2015 continue to be enforced in accordance with the provisions of the (prior) Council Regulation (EC) No 44/2001 of 20 December 2000 (the Brussels I Regulation).
Both the Brussels I Regulation and the Brussels Regulation Recast set out the framework that (should) enable(s) a party to enforce the judgment obtained against assets located in another Member State of the European Union. One of the main differences between both instruments is that, in contrast to the (prior) Brussels I Regulation, under the Brussels Regulation Recast the enforcing party must no longer first apply for the so-called declaration of enforceability (exequatur) before the local courts of the country of enforcement, but may immediately take enforcement measures on the basis of said judgment. This change was reasoned by the objective to make the cross-border recognition and enforcement of judgments within the European Union less time-consuming and costly.
Unlike under the regime of the Brussels Regulation Recast, prior to taking any enforcement measures on the basis of a foreign judgment subject to the Belgian Code of Private International Law, the executing party must first follow a specific procedure to have the judgment declared enforceable in Belgium (ie, must obtain an exequatur).
Specifically under Belgian law, pursuant to the Belgian Code of Private International Law, there is no distinction between the enforcement of different types of judgments. Indeed, the Belgian Code of Private International Law defines the term ‘judgment’ very broadly, namely as any decision rendered by an authority exercising judicial power. As a consequence, all types of foreign judgments subject to the Belgian Code of Private International Law are, as a matter of principle, eligible for enforcement in Belgium. This includes, for example and without being exhaustive, both monetary and non-monetary judgments (such as injunctions), provisional and interim decisions, and default judgments.
The same may be said with regard to foreign judgments that fall under the scope of the Brussels Regulation Recast, which applies a similarly broad definition, whereby ‘judgment’ means “any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court.”
Contrary to the Belgian Code of Private International Law, the Brussels Regulation Recast, however, provides for an important exception to the general principle of the free circulation of judgments. Indeed, judgments containing provisional measures, including protective measures, may only be enforced in another Member State of the European Union if they are rendered by a court or tribunal that by virtue of the Regulation also has jurisdiction as to the substance of the matter, and if the defendant was summoned to appear before the court or tribunal, or if the judgment containing the measures was served upon him prior to enforcement. As a consequence, under European law at least, all other provisional measures have a strictly territorial effect only, and are not eligible for enforcement within the European Union.
As indicated above, as a matter of principle, all types of court decisions are eligible for enforcement under the Brussels Regulation Recast, except for certain provisional measures.
However, in order to effectively enforce a decision in Belgium, the judgment may not fall under any of the grounds for refusal of enforcement (such as the violation of due process). These grounds for refusal are described in more detail below.
The process involved when enforcing foreign judgments in Belgium differs depending on the country of origin of the judgment.
With regard to foreign judgments rendered in a Member State of the European Union (to which the Brussels Regulation Recast is applicable), there is no need for the creditor to obtain judicial leave to enforce the foreign judgment in Belgium. Instead, it suffices that the creditor:
Under certain conditions, and at different stages of the process, the bailiff or the served debtor may require the creditor to provide a translation of the judgment.
With regard to foreign judgments that still fall under the Brussels I Regulation or were rendered in a jurisdiction with which Belgium has not concluded a bilateral or multilateral treaty, the creditor must first obtain leave to enforce the foreign judgment in Belgium. This entails filing an ex parte application before the court of first instance of the district where the defendant is domiciled or has his or her residence, or the place where enforcement will be sought. At this stage, or later when the enforcement proceedings are pending, a creditor may also already freeze assets located in Belgium.
In order to obtain leave for enforcement of a foreign judgment, the applicant must elect domicile in the district where the application is filed (this can be done, amongst other places, at the domicile of the bailiff). The application must contain the following documents:
In the case of a judgment from countries with which Belgium has not concluded any treaty, the following additional requirements (on top of the above) must be met:
The court performs a summary review of the application, consisting only of a formal check of the documents accompanying the application. There is no review on the merits of the foreign judgment. The judgment creditor who is denied leave to enforce can appeal this decision before the competent court of appeal.
The typical costs involved in the enforcement of a foreign judgment depend on the applicable legal framework.
If the foreign judgment is recognised by the court, a registration fee of 3% of the amount of the judgment (excluding interests) will be levied by the Belgian Tax Authority. However, in principle, the registration fee is only due from the judgment debtor.
The party seeking enforcement will also have to instruct a bailiff in order to serve the order of enforceability on the judgment debtor. As mentioned above, the bailiff works on the basis of fees fixed by law.
Note that the costs mentioned above are recoverable from the judgment debtor as part of the payment requested under the foreign judgment, once it is being enforced in Belgium.
For all the above, the party seeking enforcement will of course incur additional (legal) costs when the judgment debtor lodges recourse against the order of enforceability and/or enforcement measures.
Making abstraction of any recourse lodged by the judgment debtor, a foreign judgment can be enforced within a few months.
While applications for the enforcement of foreign judgments in Belgium are either quasi-automatic (Brussels Regulation Recast) or subject to a mere summary review (Brussels I Regulation and Belgian Code of Private International Law), the judgment debtor may attempt to challenge the enforcement on the basis of a number of grounds for refusal of recognition.
The debtor of a foreign judgment may challenge an order of enforceability in the following ways, depending on the country of origin of the judgment:
In Belgium, Part Six of the Belgian Judicial Code (as revised by the Arbitration Act of 24 June 2013 and the Act of 25 December 2016) governs arbitral proceedings. The Belgian law on arbitration is, to a large extent, inspired by the UNCITRAL Model Law. Chapter VIII of the Belgian Judicial Code (articles 1719 to 1721 BJC) governs the recognition and enforcement of arbitral awards.
Belgium is party to several treaties facilitating the recognition and enforcement of arbitral awards, namely:
Belgium has also signed five bilateral treaties on the recognition and enforcement of arbitral awards with Austria, France, Germany, the Netherlands and Switzerland.
The Belgian law on arbitration provides that a treaty concluded between Belgium and the country where the arbitral award was rendered takes precedence over domestic rules. This provision must be read together with the “more favourable law” provision of the New York Convention, which provides that the Convention does not take precedence over legislation that is more favourable to recognition and enforcement.
With regard to the New York Convention, Belgium has made a reciprocity reservation under article I(3) of the Convention, so it only applies to the recognition and enforcement of arbitral awards made in the territory of a contracting state.
In Belgium, the only major difference in approach to enforcement on the basis of the “type of arbitral award” is the distinction between ICSID arbitral awards and other arbitral awards. The Act of 17 July 1970 implementing the ICSID Convention in Belgium sets out a specific regime that applies to the recognition and enforcement of ICSID arbitral awards. Specifically, the Ministry for Foreign Affairs is entitled to validate the authenticity of the ICSID awards for recognition and enforcement purposes. This is done simply by presenting a certified copy of the foreign arbitral award to the competent Ministry (signed and certified by the Secretary-General of the ICSID Secretariat). The verified and certified documents are then transmitted by the Ministry of Justice to the chief clerk of the court of appeal of Brussels to grant the ‘exequatur’ to the arbitral awards.
If the award is not an ICSID award, the general rules will apply, as set out below.
There are no categories of arbitral awards that will not be enforced in Belgium (if abstraction is made of arbitral awards to which any of the grounds for refusal of recognition and enforcement apply, as set out below).
Belgian courts generally recognise and enforce partial and interim awards (whatever their form), as long as they contain an order that is no longer subject to appeal before the arbitrator(s).
Recognition and enforcement proceedings in Belgium are instituted by way of an ex parte application, and the party against whom enforcement is sought has no right to be heard at that stage of the procedure (but it can lodge an appeal against the exequatur order, as further described below). Belgian law does not require the applicant to identify assets within the jurisdiction of the court in order to obtain the recognition and enforcement of an arbitral award.
In all cases, the court of first instance has jurisdiction to hear applications for the recognition and enforcement of arbitral awards, with the following distinctions:
The applicant must elect domicile in the district of the court of first instance with jurisdiction over the application for recognition and enforcement of the arbitral award.
The party seeking enforcement must submit a number of documents with its application, including the following:
The application itself must be filed in triplicate and signed by an attorney who is entitled to plead before Belgian courts.
Pursuant to the New York Convention, if the required documentation is not drafted in the language of the proceedings (ie, either French or Dutch in Belgium) it is necessary to submit a sworn translation of the arbitral award and the arbitration agreement. The Belgian Judicial Code does not contain such a translation requirement. In practice, it is recommended to submit a translation (at least an informal translation) to allow the exequatur judge to have a clear understanding of the case.
If recognition is refused, the applicant may only lodge an appeal against that decision before the Supreme Court on points of law (since the entry into force of the Arbitration Act of 2013, the possibility to challenge the decision before a court of appeal has been removed).
The typical costs involved in the enforcement of an arbitral award include a number of fixed fees to obtain the exequatur order of the arbitral award, including:
At this stage, the main part of the costs will be those for obtaining a certified translation of the arbitral award.
If the arbitral award is recognised by the exequatur judge, a registration fee of 3% of the amount of the award (excluding interests) will be levied by the Belgian Tax Authority. However, in principle, the registration fee is only due from the award debtor.
The party seeking enforcement will also have to instruct a bailiff in order to serve the exequatur order on the award debtor. As mentioned above, the bailiff works on the basis of fees fixed by law.
Note that the costs mentioned above are recoverable from the award debtor as part of the payment requested under the arbitral award, once it is being enforced in Belgium. Without taking any recourse lodged by the award debtor into account, an arbitral award can be enforced within a few months.
The order of the exequatur judge recognising an arbitral award in Belgium is enforceable immediately. However, the party against whom enforcement is sought can challenge the exequatur decision within one month of the service of the order by way of third party opposition proceedings before the same court of first instance, this time in adversarial proceedings. The challenge does not, in itself, stay the enforcement of the arbitral award.
Importantly, as of 9 January 2017, the party who lodges a recourse against a decision enforcing a domestic arbitral award (issued in Belgium) and wants to have the arbitral award set aside is forced to make a setting aside application concomitantly with the challenge to the enforcement order and in the same procedure (provided that the deadline to file a setting aside application has not expired).
Third parties (who did not participate and were not called to participate in the arbitration) may not challenge the order recognising and enforcing an arbitral award. However, the Belgian Constitutional Court decided on 16 February 2016 that a third party should have the right to challenge the arbitral award directly before the Belgian courts (to avoid the res judicata effect of that award being opposed). Nevertheless, it remains the case that a third party may not challenge the enforcement of an arbitral award.
In its challenge against the enforcement of an arbitral award, a party may invoke the grounds provided by law for refusing recognition and enforcement. The grounds set forth in the Belgian Judicial Code are inspired by the UNCITRAL Model Law and are, to a large extent, similar to the ones provided under Article V of the New York Convention.
Recognition and enforcement of an arbitral award may be challenged if the party against whom enforcement is sought demonstrates that:
Finally, the following grounds for the refusal of recognition and enforcement of an arbitral award may be raised ex officio: