Contributed By Linklaters
If a defendant believes that he or she may be confronted with a descriptive seizure or similar measures as set out above, he or she may file a protective letter with the President of the Brussels Enterprise Court, explaining why he or she believes that granting any such measures would be ill-founded, or at least requesting to be heard prior to the president deciding on a possible request for any such measures.
Even though the practice is not specifically provided for under Belgian judicial law, the Brussels Enterprise Court appears to accept the filing of similar protective letters on behalf of potential defendants, and holds a basic register for future reference. It is best practice to have the (sealed) explanatory note accompanied by a separate letter addressed to the president of the court, informing the latter that the note should not be opened unless a request for descriptive seizure is filed.
If a defendant is confronted with a descriptive seizure award, third-party opposition proceedings may be launched in order to challenge the legal conditions of such a seizure being met. Such proceedings need to be filed within one month of the descriptive seizure award being served upon the defendant. At the same time, the defendant may request the plaintiff to provide a guarantee (if this has not already been required by the court issuing the award) or to limit the scope of the award in general or the fact-finding mission of the expert in particular.
At any time during proceedings, either party may also invoke Article 19 of the Judicial Code to request the president of the court to order a preliminary measure (to the extent not prejudicial to the merits of the case) or to review any claims filed and handle any interim disputes between the parties.