Last Updated October 14, 2019

Law and Practice

Contributed By Linklaters

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Linklaters is a leading international law firm, and has advised on significant deals in over 100 countries. In addition to serving clients from its 30 offices and via its alliance with Allens and Webber Wentzel, Linklaters’ lawyers have expertise in key jurisdictions across emerging Europe, the Middle East, Asia and Africa. In Belgium, Linklaters is recognised as a market-leading law firm, with a presence in the Belgian market dating from 1969 and with offices in both Brussels and Antwerp. Its wide offering of specialised practices, ranging from corporate and banking to IP/TMT and tax, means that the firm provides market-leading advice across the full spectrum of legal specialities.

The fundamental principle with regard to the onus of proof is that each party has the onus of proof of the facts it alleges, although the court has certain powers to order the production of particular pieces of evidence.

First, the court may order a litigating party to produce the elements of evidence that it possesses (Article 871 of the Judicial Code). It may specifically order a party – or even a third party – to produce a document that contains the proof of a relevant fact if there are serious, precise and concurring presumptions that the party concerned is in possession of this document. In certain matters, the court may request the public prosecutor’s office to gather evidence on any points of fact it indicates.

Except for the basic principles set out above, there is therefore no discovery under Belgian procedural law. The evidence produced before the court is, in most cases, the documentary evidence that is communicated between the parties during the instruction of the case. Documents cannot be subpoenaed at will or on the request of other parties, except within certain strict limits. 

As discussed in 2.7 Interim Injunctions, above, a plaintiff may lodge a petition for descriptive seizure with the president of the Brussels Enterprise Court. In that case, the plaintiff may request a court-appointed expert to search the premises of the defendant and copy any documents (or, in the case of a “full” descriptive seizure, even proceed together with a bailiff with the attachment of any allegedly infringing products), to the extent the expert considers this to be relevant in order to corroborate its findings.

Linklaters

13 Rue Brederode
Brussels
1000

+32 2 501 90 86

+32 2 501 91 14

pieter.van_den_broecke@linklaters.com www.linklaters.com
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Authors



Linklaters is a leading international law firm, and has advised on significant deals in over 100 countries. In addition to serving clients from its 30 offices and via its alliance with Allens and Webber Wentzel, Linklaters’ lawyers have expertise in key jurisdictions across emerging Europe, the Middle East, Asia and Africa. In Belgium, Linklaters is recognised as a market-leading law firm, with a presence in the Belgian market dating from 1969 and with offices in both Brussels and Antwerp. Its wide offering of specialised practices, ranging from corporate and banking to IP/TMT and tax, means that the firm provides market-leading advice across the full spectrum of legal specialities.

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