Contributed By Linklaters
As noted in 2 Initiating a Lawsuit, above, the Judicial Code governs the conduct of civil litigation in Belgium. Specific procedural provisions are set out in the Judicial Code or the CEL for particular types of proceedings (including the IP-specific descriptive seizure proceedings).
Jury trial is not available for intellectual property-related matters in Belgium.
The judges presiding over IP matters hold a law degree but are normally not scientifically trained. As patent-related court matters have been dealt with by a particular court in Brussels for a few years, the relevant seat has become much more specialised (both in first instance and at appeals level), allowing it to adjudicate in more technical and complex matters.
Should specific issues come up that require particular scientific, technical or financial expertise, a judicial expert may be appointed (the parties may have some say in this appointment, but the expert is ultimately designated by and only accountable to the court), so that the court can be advised on particular non-legal aspects of a certain matter. Although this is not normally the case, the court may also want to inquire into the views of a particular expert (or witnesses or experts offering views on behalf of any of the parties) during the oral presentation of the case.
Belgium does not have any mandatory or formal mechanisms to settle a court case, outside of the parties being able to trigger a final decision by the court. This is left entirely to the parties, who may want to enter into a settlement and release arrangement at any time (subject only to that agreement not violating public order).
As mentioned in 4.4 Revocation/Cancellation and Infringement, Belgium does not apply the bifurcation principle.
Because of the EPC system, to which Belgium is a party, it is nevertheless inherent that parallel proceedings can exist (infringement and revocation or cancellation), whether in a different jurisdiction or at the level of the EPO (opposition division or board of appeal). While only national courts may rule on infringement issues, (in)validity issues may be raised before several instances (either courts, arbitration panels or opposition divisions and boards of appeal).
Although Belgium used to be a popular forum to trigger so-called torpedo actions, the possible impact of such proceedings has decreased significantly. Article 31(2) of the Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Recast Regulation) provides that: “Where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seized, any court of another Member State shall stay the proceedings until such time as the court seized on the basis of the agreement declares that it has no jurisdiction under the agreement.” Any court that has been appointed as a result of an exclusive jurisdiction clause may continue to handle the case without waiting for the court first seized to stay the initial proceedings.