Litigation in Belgium
When people think of Belgium, they often think about beer, chocolate, moules frites, and maybe the Adventures of Tintin. I, for one, used to think about the painter James Ensor. And any country with thriving commercial industries and a mix of languages and cultures is going to be a natural home to disputes. To learn about how Belgians litigate those disputes, I was fortunate enough to speak with Louis Verstraeten, a partner at Monard Law in Antwerp.
Why should you continue reading this post about litigation in Belgium?
You’re reading these posts in alphabetical order and you’re not yet ready to learn about litigation in Botswana.
You’re not sure which country Antwerp and Ghent are in and you need to find out about at least one of them.
You’re looking for a link to the table of fees litigants can recover if they prevail in a Belgian lawsuit.
Louis Verstraeten is a partner at Monard Law in Antwerp. This interview has been lightly edited.
Can you tell me about the kinds of disputes you handle in your legal practice?
Commercial contracts litigation, insolvency related litigation, and insured liability litigation.
What type of clients do you generally represent in disputes?
A wide variety, ranging from start-ups and midsize businesses to multinationals.
Besides Microsoft Office, what software do you use in your practice?
We have a patchwork of software, some out- and others up to date: Cicero (Belgian), DMS, Toolbox (customized), Lexor (intelligent timesheets) and Henchman (AI tool for drafting contracts).
What books and websites do you use for legal research?
I like a collection of standard handbooks, plus online books and online case law search. I like visiting the library of the Antwerp Bar.
Image credit: https://en.wikipedia.org/wiki/Tribunal_of_first_instance_(Belgium)#/media/File:Justitiepaleis_Antwerpen_2_(5825072292).jpg
Do you electronically file pleadings with the court? Or must you send paper copies of them to the courthouse?
A simple electronic filing of pleadings, letters and petitions exists in Belgium: e-Deposit (fgov.be)
And this very sophisticated yet practical electronic insolvency register is used by creditors, courts and receivers: www.regsol.be
I understand that Belgium has a commercial tribunal. How do the procedures in that court differ from other Belgian courts?
There are three main differences:
The president is a professional judge, assisted by two laymen judges who are appointed for a limited duration. They decide by consensus.
The laymen also form the Chamber of Enterprise in Distress and call together businessmen and directors to exchange data (attachments register, social security and tax arrears, default judgments, blacklists from banks, non-filing of annual accounts) to justify whether the business continuity isn’t endangered by the actions at issue. Their role is to prevent insolvency pro-actively.
Laymen judges are also judge-commissioners who supervise bankruptcy receivers.
Do commercial cases ever go to the Benelux Court of Justice? If so, how does that work?
Not often. Their jurisdiction is quite limited. But EU-court of justice jurisdiction can be invoked by the appeal or cassation judge for preliminary rulings.
Generally speaking, how many pages are the complaints or initial pleadings you see in your work?
Initial writs of summons can be concise: it must contain relevant (not all) facts and the claims based thereupon. We must not give away all we have and can therefore move quickly by initiating a court case, to be elaborated later during the procedural calendar.
Initial pleadings (meaning the writ of summons) could be between 2 and 10 pages.
There are three official languages in Belgium. How do courts handle arguments involving speakers of those languages?
Language legislation is public order and defines which languages is spoken in court cases in the defined territories, with specific rules and protections in Brussels.
In Brussels there are Dutch and French speaking courts. I plead before both of them or other courts in Wallonia in French.
We have a small German speaking territory (a leftover feom WWI) and I have had the chance to plead before the local court in German a few times.
Generally speaking, how long does it take for a case to go from complaint to judgment?
In first instance courts: 8-10 months for a two-party litigation on a contested claim.
10-14 months for a multi-party litigation. 12-24 months if a surveyor or expert is appointed by the court.
Generally speaking, how is evidence exchanged between the parties before trial? Do you get to interview the opposing witnesses before the trial?
The claimant files his bundle of exhibits at the first hearing. The defendant does so when he files his written submissions.
Exhibits may be added with every new set of written submissions but may not used to ambush the other party with the last written submissions.
The court can order exhibits to be disclosed, when so requested.
We have a loyalty obligation to cooperate in finding the truth and to disclose the necessary exhibits, not a strict obligation to disclose (un)favourable exhibits.
If you win, does the other side reimburse your attorneys’ fees?
Court costs and a lumpsum indemnity for the lawyers costs are imposed on the losing party. Here is the table of fees that courts award.
Are the courts open to the public? Can ordinary people watch a commercial trial?
Yes, most hearings are public. Not those of the Chamber of Enterprises in Distress, nor the courts that decide on opening judicial reorganization proceedings.
Do you believe that Belgian courts have a particular strength for resolving commercial disputes? How about a weakness?
As for a strength, the territories (arrondissement) have been enlarged, favouring cooperation and specialization. The quality of judges has also increased.
Lawyers can be appointed as “additional judges” to replace professional judges. This is not perfect.
For a weakness, insolvency courts tend to develop different policies resulting in inconsistent case law and unpredictability.
How often do you go to the courthouse?
I will go several times per month to plead in a black robe.
When you are there, do you wear a wig?
No wigs.