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.
