Contributed By Linklaters
Provided the amounts at stake exceed the (low) limits set by the Judicial Code, appellate remedies allow parties to the proceedings (and in some cases even third parties) to submit to a court a case on which a judgment has already been given.
An appeal is generally available in relation to any kind of decision (either interlocutory or final). The Judicial Code distinguishes between two main categories of appellate procedures, namely ordinary and extraordinary appellate proceedings.
Ordinary appellate proceedings comprise appeal and opposition (ie, an appeal against a default judgment). As a rule, ordinary appellate remedies are available to the parties in all cases without prior leave by a court. As explained above, decisions at first instance are now generally enforceable notwithstanding appeal. Lodging an appeal will therefore no longer automatically stay enforcement of the appealed decision.
Extraordinary appellate procedures comprise the petition for cassation, third-party opposition, request for withdrawal of decision, and an action for damages against judges. The petition for cassation (lodged before the Belgian Court of Cassation) is not a second appeal, but an appellate procedure that aims to review only the legality and the formal regularity of the judgment under appeal. Extraordinary appellate procedures are generally only permitted under specific conditions provided for by law. Initiation of those proceedings does not stay enforcement, except where otherwise provided by law.
Ordinary appellate procedures are generally de novo, which means that the court before which such procedures are brought has the power to review the case fully in fact and in law. The appellate court is not bound by the facts established in the first instance judgment that is under review, and may indeed also require additional evidence. The parties are also allowed to raise new arguments. They may even extend the original claim or modify the legal basis of the claim (also, a counterclaim may be filed for the first time at the appellate level), provided that it is based on facts that are recited in the original writ of summons.