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18.05.18 Litigation in English? A possibility soon to arrive in Brussels

Litigation
May 18

On 27 October 2017, the Council of Ministers came to an agreement based on a mutual initiative between Minister of Justice Koen Geens and Prime Minister Charles Michel on a preliminary draft regarding the establishment of the Brussels International Business Court (“BIBC”). This would institute a new forum for international commercial dispute resolution in Belgium.

Up until now, parties engaged in a commercial dispute who wanted to see a judgment rendered in English had to call upon private arbitration or take their case to a foreign court in an English-speaking country. Hence the BIBC would be the first Anglophone court of its kind established in Belgium. To date a lot of international commercial disputes are drawn away from Belgian jurisdiction, and this in spite of the fact that Belgium wants to emerge as a hub for international business.

These last years we have seen a proliferation of international commercial transactions, and as a consequence, the English language has never been more prominent in the commercial area. Furthermore, most of the cross-border commercial contracts aren’t only negotiated but also closed and written in English. Finally, we shouldn’t underestimate the global impact of Brexit as the international commercial disputes will increase on the one hand and calling upon the courts in London will be anything but self-evident on the other.

To face the internationalization problem head on, the Belgian government made it a priority to establish a specialized  state court that will handle commercial disputes between international enterprises. The BIBC is expected to be the primary instrument providing solutions for current international needs and concerns. Furthermore, it is to help in positioning Brussels, and Belgium as a whole, to assist not only the European Union but also the international community in its development.

The BIBC needs to be characterized as a hybrid court, as it is a governmental court, drawing a large measure of inspiration from the excellently functioning arbitrage model. The BIBC is in other words complementary to arbitration.

Parties will be able to commence proceedings in English and they will file the case before the BIBC. Moreover, the parties will choose freely which law will be applied during the procedure. Pleas will be held in English and, as a consequence, judgments will be rendered in English as well.

With regard to the concept procedure (narrowly defined) the BIBC will, at least by default, mutatis mutandis apply the Model Law concerning the international commercial arbitration from the ‘United Nations Commission on International Trade Law' (UNICITRAL).

The BIBC will be composed of consular judges and lay judges with a high level of expertise. The lay judges will be chosen from experts, who could be university professors and lawyers, with experience of the subject matters that will fall within the scope of competence attained by the BIBC. Hence, the composition of the BIBC will depend on, and vary in regard to the nature of, the dispute and the required expertise.

The judges acting as a college/collegiate judicial organ will grant sufficient guarantees so that the decisions rendered in the BIBC will be in first and last instance. Parties aiming to avoid long legal procedures have every interest in bringing the matter before the BIBC.

The BIBC intends to ensure speed, quality and efficiency. It is also expected that the BIBC’s case-law will play a central role as an authoritative source.

This Belgian initiative fits within the existing European dynamic, where the non-English-speaking countries try to enhance their competitive position both on the European and international level. In the light of this, the Rotterdam court initiated a pilot on 1 January 2016 enabling it to proceed in English with respect to matters in terms of maritime and transport law or international commercial purchases.

This pilot was recently extended. In the near future ‘the Netherlands Commercial Court’ (NCC) will be founded in Amsterdam. The NCC aims to address the growing need for efficient dispute resolution of civil and commercial matters with an international dimension.

The Belgian pre-draft law is currently being submitted as a basis to confer with the trade unions and will subsequently be submitted to the Council of State for its opinion. The BIBC would function no later than 1 January 2020.

Yves Lenders • +32 3 304 90 08 • yves.lenders@lydian.be
Jo Willems • 
+32 11 26 00 57 jo.willems@lydian.be