Unfair terms in B2B relations – What you should know from now on.

Are you a small, medium or big company? As a builder, banker, retailer, seller or any other business, do you enter into B2B agreements that usually provide for some penalties, limitation of liability, specific duration or transfer of risks?

Would you mind if a judge strikes down these clauses or reviews the price agreed to pay for your services or products?

Then watch out for the Law of 4 April 2019 which prohibits unfair terms in B2B relationships and enters in force today.

General prohibition of unfair terms in B2B contracts

As it was already the case for B2C relationships, the law of 4 April 2019 now also states that clauses in B2B contracts that create, alone or in combination with other terms, a manifest imbalance between professionals are unlawful and void.

The contract itself will, if possible, live on without the unfair terms and remain binding.

The unfairness of the terms is not assessed regarding the subject-matter of the contract nor the equivalence between the price and the products to be supplied as long as these terms are clear and comprehensible.

This general prohibition is translated into two lists of specific contract terms: (i) a blacklist of unfair terms which are always prohibited and (ii) a grey list of terms which are allowed only if they can be justified.

Blacklist

The blacklist includes terms that aim to:

1. create an irrevocable obligation for the other party while the performance of the obligations of the company itself is subject to a condition whose realisation depends solely on the company’s will;

2. grant a party the unilateral right to interpret any terms of the contract;

3. make the other party waive any means of recourse against the company in the event of a dispute;

4. irrefutably establish the other party’s knowledge or acceptance of terms of which that party did not have actual knowledge before the conclusion of the contract.

Greylist

The grey list includes terms that aim to:

1. allow the company to unilaterally and without a valid reason modify the price, characteristics or terms of the contract;

2. tacitly extend or renew a contract of fixed duration without providing a reasonable notice period;

3. place, without compensation, the economic risk on a party where that risk would normally be borne by the other company or another party to the contract;

4. inappropriately exclude or limit the legal rights of a party in the event of total or partial non-performance or inadequate performance of the other party’s contractual obligations;

5. bind the parties to a contract without providing a reasonable notice period;

6. release the company from liability for its willful misconduct, for its gross negligence or that of its employees or, except in cases of force majeure, for the non-performance of the essential obligations that form the object of the contract;

7. restrict the means of proof available to the other party;

8. fix damages that are manifestly disproportionate to the prejudice that could be suffered by the company in the event of non-performance or delay in the performance of the other party’s obligations.

If a company claims to be harmed by a grey list term, the co-contracting party has to prove that the term is not abusive. The abusive nature will be assessed on the basis of the following elements which must be considered at the time of conclusion of the contract:

  • the specific nature of the goods or services,
  • all circumstances surrounding the conclusion of the contract,
  • the overall economic balance of the contract,
  • the applicable commercial practices,
  • all other terms of the contract or of another contract on which it depends.

Application to (almost) all B2B contracts

In terms of scope, the new rules apply to any B2B contract regardless of the size or market power of the businesses involved. Financial services and public procurement contracts are not subject to the new rules unless provided otherwise by royal decree – which has not yet been the case.

Entry into force on 1 December 2020

The new rules enter into force on 1 December 2020, but only for contracts concluded, renewed or modified after that date. Contracts that existed before remain unaffected by these new rules.

And now what?

The new rules will have a substantial impact on many B2B relationships.

Therefore, we recommend that companies review their contracts as soon as possible, and where necessary update their standard B2B terms and conditions to ensure future compliance with this new legal – and controversial – framework.

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For any question or assistance, please contact:

Rafaël Jafferali
rafael.jafferali@simontbraun.eu

Alexia Faes
alexia.faes@simontbraun.eu

+32 (0)2 543 70 80

Simont Braun authors ICLG Belgian Chapter on the Enforcement of Foreign Judgments

Rafaël Jafferali and Fanny Laune authored the Belgian chapter on the Enforcement of Foreign Judgments in the International Comparative Legal Guide 2020, offering thought and pragmatic insight on the key questions that arise in this complex area.

The Belgian chapter is available here.

For any question in this area, do not hesitate to contact the authors.

 

 

Simont Braun successfully assists Bank Degroof Petercam in a wealth management dispute

Béatrice Thieffry, Sandrine Hirsch and Rafaël Jafferali were mentioned in L’Echo for successfully assisting Bank Degroof Petercam before the Brussels Court of Appeal in a wealth management dispute.

The full article is available here.

Source: L’Echo – Nicolas Keszei – 10 October 2019

This article has been reproduced with the consent of the editor, all rights reserved. Any further use must be specifically authorised by the rights management company Copiepresse: info@copiepresse.be 

 

Simont Braun assists Test Achats in its class action against Ryanair

Simont Braun is representing Test Achats which seeks to receive compensation for passengers who were victims of repeated strikes by the Ryanair staff in summer 2018. The total compensation is estimated at € 16 million.

Simont Braun filed the collective action this morning with the French-speaking Business Court of Brussels (see the press coverage by the RTBF at 6’04” and the VRT at 8’30”).

We now expect a judgment on the admissibility of the claim. A time-period will then start to allow Test Achats and Ryanair to negotiate. If they reach an agreement, the latter will be subject to approval by the Court. If not, the case will be pleaded on the merits.

This class action is the 8th of its kind in Belgium since the entry into force of the law in 2014. It will raise landmark consumer law questions and high-end cross-border procedural issues.

The Simont Braun team representing Test Achats is led by Rafaël Jafferali and includes Charles-Edouard Lambert and Marc Baetens-Spetschinsky.

Needless to say, we will keep you informed of the next developments.

The transposition into B2B relations of the prohibition of unfair contractual provisions

Rafaël Jafferali shares thoughts on the new Belgian law transposing into B2B relations the principle of prohibition of unfair contractual provisions. A law adopted with discretion but which risks to disrupt well-established legal concepts and to raise substantial practical issues. Rafaël’s article was published in the law review RDC-TBH (February 2019) and is available here.

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Simont Braun assists Deminor in the Fortis case settled for € 1.3 billion

On 13 July, the amended settlement of € 1.3 billion reached between Ageas (former Fortis) and Deminor was declared binding by the Amsterdam Court of Appeal. It is the largest settlement of investors’ claims in Europe so far. 

Read Press Release in PDF

Simont Braun defended the interests of the investors (more than 5,000) federated by Deminor, who sought compensation for the loss suffered on their Fortis shares due to the misleading information disclosed by Fortis between May 2007 and the bankruptcy of the Group in October 2008.

Simont Braun’s team assisted Deminor in the collective action launched in January 2010 before the Brussels Commercial Court. It was one of the landmark judicial procedures after the dismantling of the Fortis Group and, due to the complexity and crucial financial issues of this case, ten hearings were scheduled.

After lengthy negotiations with representatives of Ageas, the parties reached a first settlement of € 1.2 billion that the Court of Amsterdam refused to approve. Ageas submitted an amended proposition of € 1.3 billion which was enacted by the Court last Friday and declared binding.

This is a landmark settlement in the European securities litigation landscape and a significant achievement for the investors who will get compensation for their losses,” says Catherine Houssa, Partner in Banking & (Digital) Finance, who handled the case. “This collective action was also a premiere in Belgium and presented complex issues regarding multiple aspects of judicial, financial and tort law.”

The Simont Braun team which advised on the case was led by Catherine Houssa (Banking & (Digital) Finance) and included partner Rafaël Jafferali (Dispute resolution) and associates Charles-Edouard Lambert and Lucien Standaert.

Another novelty in the Belgian judicial landscape: the future Brussels International Business Court (“BIBC”)

On 15 May 2018, the Belgian Government filed a draft law concerning the implementation of a new specialised English-speaking court in Brussels: the Brussels International Business Court (“BIBC”).

The Belgian Parliament is currently reviewing the draft law. The Government intends to ensure the entry into force of the law on 1st January 2020 at the latest.

The Government’s objective and motivation

The recent economic and politic evolutions both at the national and international levels, combined with the Brexit, will lead to an increase of international commercial disputes.

For Brussels to maintain its central position on the European and international business scene, the Government has considered necessary to set up a new English-speaking State Court, which will give the opportunity to business actors to bring their cross-border disputes in the capital of Europe.

In other words, inspired by similar initiatives in the Netherlands and other European countries, the Belgian Government is hoping to make Brussels the new hub for international commercial disputes.

Overview of the BIBC based on the draft law

1) Jurisdiction

The BIBC will have jurisdiction over disputes meeting the following cumulative conditions:

(i) International disputes, i.e.:

  • When parties have their usual residence or establishment in different States;
  • When the location where a substantial part of the commercial obligations or the location with which the dispute has the closest links is established in another State than the state of the principal residence/establishment of the parties;
  • When parties expressly agree on the international character of their dispute; or
  • When the dispute must be solved using foreign law;

(ii) between enterprises (i.e. any person who pursues an economic goal, including public enterprises) and concerning an economic act (performed in pursuing this economic goal);

(iii) and over which another court does not have exclusive jurisdiction;

(iv) provided that all parties have agreed on the BIBC’s jurisdiction, e. when the BIBC jurisdiction has been provided for in (a clause of) the agreement or when the case is referred to the BIBC by another court that acknowledged the parties’ agreement on its jurisdiction.

2) Composition

The BIBC will be composed of:

(i) One professional judge: the “President”, who will be elected amongst Belgian judges and;

(ii) Two non-professional judges: the “Judges in the BIBC”, who will be chosen by the President amongst Belgian and foreign experts in international business law.

3) Main characteristics of the proceedings

Language: exclusively in English.

Procedural rules sensu stricto: application mutatis mutandis of the UNCITRAL Model Law on International Commercial Arbitration[1].

Rules on the merits: either the law chosen by the parties or, in the absence of choice, the law that is applicable pursuant to the relevant conflict of law rules.

Interim measures? The BIBC can take interim measures.

Costs: Self-financing via substantial registration fees (to be determined by Royal Decree). Hence, the BIBC’s procedural costs will be much higher than before other Belgian courts.

Appeal? No appeal against a BIBC’s decision. The judgments can only be challenged through extraordinary appeals (e.g. third-party proceedings, appeal on points of law before the Court of Cassation…).

Conclusion

The Council of State pointed out some drawbacks of the BIBC and of its procedural rules, notably in light of the constitutional principles of equality and non-discrimination.

In this regard, they noted, in particular:

  • the use of a unique language which is not one of the three Belgian national languages,
  • the absence of a right to appeal,
  • the very high costs of the proceedings.

However, the Government seems determined to have this new English-speaking State Court enter into action in a very near future.

Needless to say, we will keep you posted.

For any question or assistance, please contact Fanny Laune, Rafaël Jafferali or Steven Callens

fanny.laune@simontbraun.eu
rafael.jafferali@simontbraun.eu
steven.callens@simontbraun.eu
+32 (0)2 543 70 80

[1] The Belgian code of civil procedure will not be applicable except when expressly provided.