BELGIUM: An Introduction to Dispute Resolution: Litigation

Belgian Judicial System

The Belgian judicial system is a system in the civil law tradition, in which sets of codified rules are applied and interpreted by courts. Belgium being a member of the EU and a signatory to the European Convention on Human Rights, Belgian judges regularly apply European legislation and are greatly influenced by the case law of the European courts.

The Belgian judicial pyramid is made of four levels.

The first level is made of proximity courts named “Justice of the Peace” and “Police Court”. Justices of the Peace handle small claims but also have an exclusive jurisdiction over lease disputes.

In most cases, however, the normal starting point is the Court of First Instance. Next to the Court of First Instance, two specialised courts exist: the commercial court (for disputes between undertakings, but also for insolvency proceedings) and the labour law court (for matters of individual labour law and social security).

Each first instance court falls in the judicial district of one of the five courts of appeals of Belgium, where the first instance judgment can be reviewed, with specialised chambers for each type of matters. A Market Court has also been founded in 2016 within the Brussels Court of Appeal to hear cases in relation to specific regulated markets.

The Belgian Supreme Court is the Cour de cassation, which deals only with points of law.

While a successful party is generally entitled to recover its legal fees (eg, bailiff costs and external counsel’s fees) from the losing party, the amount of counsel fees that can be recovered is based on lump sum amounts set by the lawmaker, varying in most cases based on the value of the dispute.

Modernisation of Belgian Civil Law

Over the last few years, the Belgian Parliament adopted important pieces of legislation with the aim of modernising the Belgian Civil Code. The chapter of the new Civil Code on contractual obligations entered into force on 1 January 2023, while the new chapter on extracontractual (tort) liability entered into force on 1 January 2025. The latter brings some important changes, including by opening the possibility for a party suffering a harm to ground a claim for damages on both tort and, as the case may be, contractual liability concurrently.

ADR

The Belgium legal and judicial systems favour alternative dispute resolution, including conciliation, mediation, expert determination and arbitration. Recently, the legislator has introduced in all courts specialised chambers for the amicable resolution of disputes, composed of judges who assist parties in their confidential discussions (the same judges may not hear the dispute subsequently if no settlement is reached). Belgian judges also increasingly use their power to force, ex officio or at the request of one of them, parties to use ADR.

Arbitration is also regularly used in Belgium. Judicial courts are generally mindful to avoid interference in and after the arbitration process. The country counts several arbitration centres, the most vested one being the CEPANI. The CEPANI Rules provide for the possibility to resort to emergency arbitration proceedings (which have been used on several occasions in 2023 and 2024) or expedited proceedings in certain circumstances.

Lately, the Belgian Supreme Court issued some significant judgments in relation to arbitration. In one of them (7 April 2023; C.21.0325.N), it reversed its almost 50-year-old case law by holding that disputes on the termination of Belgium-related exclusive distribution agreements can now be arbitrated even when they are governed, as per the parties’ choice, by a foreign law (when the EU Rome I Regulation applies).

Class Actions

In 2014, a class action regime was introduced in Belgium in the Code of Economic Law. Class actions can be brought on behalf of a group of consumers or SMEs by non-profit organisations or public bodies that meet certain legal requirements.

Class actions can only be commenced for alleged violations by an enterprise of its contractual obligations or of specifically enumerated Belgian and European rules which contribute to consumer protection.

The Act of 21 April 2024 implemented the EU Representative Actions Directive (RAD) and intends to improve the proceedings following difficulties identified in case law and doctrine. The new regime applies to all actions filed after 10 June 2024.

Under the new regime, by default, the group is composed based on the opt-in system. Furthermore, the group is now composed at a later stage, as consumers/SMEs can now join the group only after liability has been upheld by the court (up to four months from the publication of the decision establishing the defendant’s liability).

So far, 11 consumer class actions have been brought, nine of which by the main Belgian consumer protection organisation. The actions concerned different industries (telecom, tech, transportation, automobile, e-commerce and energy) alleging violations of consumer laws in various fields, including data protection, passenger rights, unfair market practices and environmental laws.

With the implementation of the RAD, new entities are entitled to bring class actions. Therefore, an increase in cross-border class actions in Belgium is anticipated. However, in the absence of commercial incentives for bringing such actions and due to limited funding, this increase is likely to remain restrained.

Criminal Litigation – Recent Trends

The growing number of regulatory obligations under which corporates must now operate (GDPR, MAR, environmental regulations, etc) has increased the number of administrative prosecutions of a criminal nature that are initiated by regulators, which require in-house counsel to navigate both criminal and administrative law.

This growing complexity has prompted many companies to resort to internal investigations as a proactive measure to identify and address potential legal risks. In Belgium, the new Act on Internal Investigations provides a clear framework for conducting such inquiries, emphasising confidentiality, procedural fairness and the rights of involved parties. Notably, it excludes lawyers from its scope, as their work remains governed by professional privilege. Nevertheless, this new legislation will likely serve as a blueprint for lawyers as well, offering guidance on best practices.

Restructuring and Insolvency Litigation

Recently, a new restructuring and insolvency framework entered into force implementing Directive (EU) 2019/1023.

The reform has introduced entirely new legal concepts in Belgian law, such as the formation of classes of affected parties and the cross-class cram-down mechanism. It is anticipated that these new and unfamiliar concepts will give rise to litigation in the years to come.

Another notable change is that secured creditors will only be included in the restructuring plan for an amount equal to the value they would receive from their security in a bankruptcy or liquidation scenario, in accordance with the normal ranking of liquidation priorities. Reports valuating the secured assets will therefore become crucial and it is expected that they will become the subject of numerous challenges, by secured creditors when they consider the valuation too low, and by unsecured creditors when they are of the opinion that the valuation is too high.

Lastly, the legislator also hopped on the trend to provide restrictions on the publicity of restructuring proceedings. The reform introduced private reorganisation proceedings to which no general publicity is given. Although only recently introduced, private reorganisation proceedings have already been widely used in practice, representing around half of the reorganisation proceedings brought in 2023 before the courts in Brussels.