Civil and Professional Liability
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Enforcement of Foreign Judgments
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Litigation, Arbitration, Mediation
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||Dr. Karel MUL is the author of the Belgian chapter of the book “The Enforcement of Foreign Judgments”, published by Kluwer International (New York) and regularly updated. A copy of the article can be read below.
1. UNIFORMITY OF LAW AND REGULATIONS
Belgium is a federal country but the legal system about enforcement of foreign judgments applies throughout the country. However, the proceeding has to be in the region’s language (Dutch in the Flemish Region, French in the Walloon Region, German in the German speaking part of the Walloon Region, and in the Region of Brussels, French as well as Dutch, depending on the language of the defendant).
A “judgment” that may be enforced is an enforceable decision granted by a foreign authority involving civil law matters.
The foreign decision can only be enforced if several conditions are fulfilled:
- the foreign judge must have jurisdiction but not solely because of the plaintiff’s nationality
- the decision is not contrary to the Belgian public order and/or law
- the judgment is not appealable
Enforcement of foreign judgments is only possible in civil (private law), commercial and employment matters. Foreign decisions in criminal matters, or on taxation or social security litigations, are not enforceable (although the judgment of a criminal court which would award damages to a plaintiff is enforceable as this is a civil matter).
In Belgian law, there is difference between enforcement and recognition.
Recognition means that the Belgian legal system recognises the legal status that has been created by a foreign judgment, a divorce judgment for instance, or a bankruptcy judgment. Recognition does not need any procedure: the legal status exits per se.
In general, and taking account the conditions due by Belgian public policy laws:
(a) Money judgments are enforceable in Belgium, either in euros, or in another currency, foreign to the euro-zone.
(b) Specific performance judgments are enforceable. To be enforceable, these damages must have been ordered by the foreign judgment; if this were not the case, the Belgian court could not order them.
(c) Injunctions are enforceable
(d) Arbitration awards are enforceable in Belgium.
(e) (i) Judgments upon personal status and capacity (divorce, adoption, wedding) do not need to be enforced by the procedure of ‘exequatur’, since the Belgian system automatically recognises their res judicata effect when they do not have any patrimonial or compulsory aspects. (When they do, the decision will have to be enforced to compel the defendant to satisfy the judgment rendered abroad).
(ii) A judgment of insolvency is enforceable.
(f) Judgments allowing multiple or punitive damages are enforceable, at least theoretically. The Belgian court will refuse the enforcement if it is of the opinion that the damages are too high, and thus contrary to the Belgian public order policy.
(g) The exequatur of an ‘exequatur’ is impossible.
(h) Foreign interim orders are not enforceable in principle, since only definitive judgments are enforceable. However, these orders may be enforced in Belgium if they can be enforced (and to the same extent) as in the country of origin. This means that, for instance, interim maintenance or custody orders would be enforceable in Belgium.
(i) A judgment against the Belgian Federal State, the Flemish Region, the Walloon Region, the Brussels Region, the German Region or against one of their bodies may be enforced, provided that it is not contrary to the Belgian public order policy, and that the foreign court had jurisdiction. Practically speaking, the possibilities of executing a foreign judgment against these bodies will however be limited, unless some creative thinking is involved. For instance, paintings in a state-owned museum may not be seized as they serve the public interest, but a painting in the office of the curator of the same museum might be seized because this painting is not on display for the public and is not serving the public interest.
(j) Foreign decisions in criminal matters or concerning taxation are not enforceable
No condition of reciprocity is required.
3. CURRENCY REGULATIONS AND RESTRICTIONS
(a-b) There are no exchange control regulations or restrictions which would prevent free transfer of any amount to be recovered as a result of the enforcement.
(c) It is possible to enforce a money judgment in another currency than the euro.
4. DOCUMENTARY REQUIREMENTS
Member States of the European Community
3 European Regulations have deeply influenced the way of proceeding in Europe by creating the possibility to obtain judicial decisions that are immediately enforceable in another Member State (without the need of any exequatur proceedings). The scope of these 3 Regulations extends to all Member States of the European Union, except Denmark.
Regulation (EC) No. 805/2004 of April 21, 2004 (Moniteur (Belgian Official Gazette) of October 28, 2005), creating a European Enforcement Order for uncontested claims abolishes the exequatur principle: article 5 of the Regulation determines that “A judgment which has been certified as a European Enforcement Order in the Member States of origin shall be recognized and enforced in the other Member States without the need for a declaration of enforceability and without any possibility of opposing its recognition.”
The Regulation lays down rules as to how an order of a Belgian court shall be enforced in another Member State (and vice versa). The same applies as regards the enforcing of a Belgian authentic instrument in another Member State (and vice versa).
With this new simplified system, a court that has issued an order can immediately provide the petitioner with the related European Enforcement Order.
The new simplified system is limited to uncontested claims relative to civil and commercial matters.
The application for certification as a European Enforcement Order for uncontested claims is optional for the creditors, who may instead opt for the system of recognition and enforcement (the “Brussels 1 Regulation”). Additionally, the “Brussels 1 Regulation” continues to apply to all claims that are not subject to the scope of the new Regulation.
All rendered decisions, approved or signed transactions, or authentic instruments will be capable of certification as European Enforcement Orders from 21 October 2005 onwards, if their date is subsequent to January 20, 2005.
Regulation (EC) No 1896/2006 of April 12, 2006, creating a European order for payment procedure came into force on 12 December 2008. This Regulation is binding in its entirety and directly applicable in the Member States. In essence, this Regulation is designed to create a simplified system for collecting uncontested debts between persons in different member States. The Regulation provides for the court, having jurisdiction under Regulation 44/2001, to issue, at the request of the creditor, a standard form order.
That order is then served on the debtor in question. The debtor has the opportunity to oppose the claim. If the debtor does so, proceedings will be conducted by the court that issued the order in the form of normal civil or commercial litigation. If the defendant does not oppose the claim, the order becomes enforceable and no further exequatur is necessary.
Regulation (EC) 861/2007 of 11 July 2007, establishing a European small claims procedure came into force on 1 January 2009.
The procedure established by this Regulation is intended to improve access to justice by simplifying cross-border small claims litigation in civil and commercial matters and reducing costs. "Small claims" are cases concerning sums under EUR 2 000, excluding interest, expenses and disbursements (at the time when the claim form is received by the competent court). Judgments delivered under this procedure are recognised and enforceable in the other Member States without the need for a declaration of enforceability. The procedure is optional, offered as an alternative to the possibilities existing under the national laws of the Member States.
Non-European Community Countries
The plaintiff must produce the certified copy of the judgment and the attestation by the foreign Court that the judgment is final; these documents must be authenticated by the competent foreign authorities, whose signatures have to be legalised by the Belgian consular authorities (see paragraph 6).
If a Belgian lawyer (or a foreign lawyer who is entitled to plead in Belgium) acts on behalf of the plaintiff, he does not have to show evidence of his mandate, unless his mandate is contested.
(a) If the person signing on behalf of a company is not its lawyer, evidence of his authority will have to be produced (the authorisation to act on behalf of a company depends on the law of the country where the company is registered). The examination of the power of attorney may depend upon the forms and the by-laws of the company.
(b) It is not necessary to show beforehand that the judgment is not against public morality or the Belgian public order policy.
The plaintiff must show that the judgment is final (which can be proven by an attestation of the Court that pronounced the judgment) and that it has not lost its legal effect (because of prescription, or because it has already been successfully enforced). These facts may be certified by expert opinion or by any written evidence.
(c) Notarised copies are acceptable. Plain or faxed copies are also acceptable unless the defendant or the Court asks for the originals.
Belgium has signed and ratified the following Conventions of The Hague:
- Civil procedure
- National law vs. law of domicile
- Recognition of companies
- Maintenance of children — Applicable law
- Maintenance of children — Enforcement
- Service abroad
- Child abduction
It has signed, but not yet ratified, the Hague Conventions concerning:
- Maintenance — Enforcement
- Maintenance — Applicable law
6. AUTHENTICATION OF DOCUMENTS
The judgment has to be certified by the court of the foreign country and must be signed by the competent authorities of that country.
Their signature must be legalised and their capacity assessed (verified) by the Belgian diplomatic or consular agents in that country.
The competent authorities in the foreign country must authenticate the signature of the expert referred to in paragraph 4(b) above.
7. TRANSLATION OF DOCUMENTS
The documents need not be translated if they are in the language spoken by the Belgian court (Dutch, French or German, see above paragraph 1), and if this language is spoken by the defendant.
If the documents have to be translated, this must be done by a sworn translator, appointed by the courts of Belgium, and thus, it must be done in Belgium.
8. REOPENING OR REVIEW OF JUDGMENTS
(a) In the absence of a treaty, the Belgian court will examine the merits of the foreign judgment. In addition to the other points, it must verify:
- if the judgment doesn’t conflict with the Belgian public order policy or with any rule of Belgian public law;
- if the rights of the defendant have been complied with;
- if the foreign court did not have jurisdiction solely by reason of the plaintiff’s nationality;
- if it is a final judgment (see paragraph 2.2(h) above);
- if the plaintiff has provided an authenticated copy of the judgment.
(b) This examination of the merits of the judgment is compulsory and requires an examination of the trial (not only the procedure, but the dispute as well).
The examination of the merits does not imply that the whole trial has to be reopened. The evidences presented to the foreign court need not be presented again (except if the Belgian court holds that the way these evidences were presented did not comply with the rights of the defendant or that they were in conflict with the Belgian public order policy).
The Belgian court will have to review the reasoning, the application and the interpretation of the law of the foreign court.
The Belgian court can only enforce or refuse to enforce the foreign judgment, which cannot be modified or amended. This is the main limit to the powers of the Belgian court when it reviews the merits of the foreign judgment. This also means that the parties cannot introduce new facts, claims or arguments during the enforcement procedure.
Some authors note that the Belgian public order policy review can be given such a large meaning that it may imply a review of merits in every case.
The public policy order review
If the judgment is not in accordance with the principles of the Belgian international public policy order, the court will simply refuse the enforcement. This rule suffers no exception, and it is not possible to waive it by contract.
These principles of Belgian international public policy order are not specified in Belgian law and depend on the circumstances.
These principles apply to the merits of the case as well as to the proceedings. For instance, a foreign judgment violates the Belgian international public policy order if it results from a fraud of one of the parties or if it did not take into account that a party had no legal capacity to bind itself.
Foreign rules which would favour domestic creditors of a bankrupt debtor would be regarded as violating the Belgian international public policy order.
This notion of Belgian international public policy order is linked to what the courts consider essential in the Belgian legal system, and thus is subject to continuing development.
If a part of the foreign judgment violates the Belgian international public policy order (for instance, if the judgment allows interests at a rate far exceeding the Belgian legal interest rate) a partial enforcement may be decided.
The Belgian court must also ensure that the rights of the defendant have been complied with. This is a principle of the Belgian international public policy order. The Belgian court will determine whether the foreign court complied with the foreign procedural law, and that this procedural law does not infringe the rights of the defendant, as the Belgian law understands it.
(c) The Latin adagium “Fraus omnia corrumpit” is applicable as soon as fraud is discovered or can be proved. This implies that an allegation of fraud may be raised for the first time before the Belgian courts if the fraud violates a principle of the Belgian public order policy or if it violates the rights of the defendant: if the court has to review the merits of the case, an allegation of fraud may be made in every case.
9. PENDING PROCEEDINGS
(a) If two procedures are pending in Belgium between the same parties and about the same litigation, the disputes will be joined. If the two procedures are pending in a different Court, the Court with the oldest procedure will “inherit” the other procedure. If the defendant instituted proceedings in the same subject matter in another foreign country before the judgment had been granted, and if neither the country of the original judgment nor the second country are bound by a treaty with Belgium (for instance, the Brussels Convention of 1968), the judge will not be obliged to suspend the examination of the enforcement proceedings.
However, the courts may examine these second proceedings, in order to determine whether the rights of defence have been respected or if the original court had jurisdiction in the proceedings of the original judgment.
The courts may consider that the two cases are related in such a way that the Belgian courts have to suspend their examination of the case until the (second) foreign judgment is rendered.
(b) It is, in principle, not possible to enforce a judgment that is not final. As a consequence, it would not be possible to enforce a judgment that is appealed. However, it may be possible to enforce it in Belgium despite the appeal, if the judgment would be enforceable in its country of origin. (see paragraph 2.2.h.)
The defences available to a defendant appear in paragraph 8 above.
(a) In the absence of a treaty, the Belgian court must verify that the foreign court did not entertain jurisdiction exclusively because of the plaintiff’s nationality. If that were the case, the enforcement would be refused.
(b) The foreign law determines the question of jurisdiction.
(c) There is no other requirement. If the foreign court had jurisdiction (following the foreign law: the burden of proof of the content of the foreign law is born by the applicant), and if it did not entertain jurisdiction exclusively because of the plaintiff’s nationality, there will be no further examination of the jurisdiction.
(d) If the foreign court entertained jurisdiction exclusively because of the plaintiff’s nationality, the fact that the defendant did or did not defend himself, or did or did not contest jurisdiction is not relevant.
The Belgian court will also examine the way in which the rights of the defendant were respected. In this review, the defendant’s conduct and claims will be scrutinised.
(e) A foreign judgment granted by default in the Belgian court is treated with particular interest by the Court in order to ensure that the rights of the defendant were respected. If the foreign judgment does not state that it has been granted by default, the burden of proof that it was is borne by the defendant.
(f) If the foreign court had jurisdiction because of a contract, the Belgian court will accept it (unless a treaty applies and states otherwise or unless the Belgian public order is at stake).
(g) No condition of citizenship, domicile, assets, etc. is required. Whatever the nationality of the parties, they must have an interest in having the decision executed in Belgium.
12. CONTRACTUAL WAIVER
(a) It is not possible to waive rights that are considered to be part of the law and order of the country or to waive a mandatory law. For instance, nobody may waive the rights of a defendant.
The other rules of procedure aim at protecting the defendant. An irregularity in the form of these proceedings leads to an abortive trial if and only if the defendant shows evidence that this irregularity harms the defendant. In this respect, a prior contractual waiver would be interpreted as a recognition of the fact that the irregularity would be harmless to the defendant.
If the defendant agreed to notification being sent to a determined address, it would be considered as valid.
(b) Our opinion is that a prior waiver of service requirements would be deprived of effect in an enforcement trial.
13. SERVICE REQUIREMENTS
Unless there is a treaty which would decide otherwise, the Belgian court will automatically accept the method of service of the initiating summons of process which led to the foreign judgment if this method was recognised by the foreign court, and if this method were, in the Belgian court’s opinion, compatible with the rights of the defendant.
The Belgian court would not accept a service of the initiating summons which had not been given to the defendant’s place of residence or elected domicile, and because of that would not have reached him in a timely manner.
The fact that the method was recognised by the foreign court is not binding on the Belgian Court.
(a) A cession of the judgment is possible. The transfer of claim must be officially notified to the debtor by a bailiff.
(b) A cession of the judgment would not change anything in the respective rights of the parties. If there is a transfer of claim prior to the initiating of the foreign procedure, and if a treaty allows the assignee of the claim to initiate the procedure in his own country, there might be an advantage.
15. INTERIM RELIEF
(a) No other interim relief than attachment or seizure for security would be granted, especially physical restraints to the debtor.
In Belgian law, it is possible to seize the debts due to the defendant for security on the basis of a private evidence of indebtedness; a foreign judgment may be considered such private evidence. This enables the plaintiff to seize the debts payable to the defendant for security, as, for instance, his bank accounts, without any prior proceedings. No authority for seizure is needed.
The other kinds of seizure for security require a prior procedure. The plaintiff has to ask the court (by unilateral petition) to entitle him to seize the goods (movable or not) of his debtor. The foreign judgment, even if not yet enforced, would be useful as evidence of the claim of the plaintiff.
In both cases the court might consider that the foreign judgment is not sufficient to show evidence of the plaintiff’s claim, for instance if it seems doubtful that it would be enforced in Belgium
During this first procedure, the applicant will not have to provide security.
Interest is allowed in terms of the original judgment, unless the interest rate seems so high that it would be incompatible with the Belgian public policy. If no interest was provided for in the original judgment, the Belgian court would not allow interest.
17. TIME OF ENFORCEMENT AND SUBSEQUENT ACTION
(a) i. The minimum time for enforcement of a foreign judgment if all the necessary documents are available, if unopposed, would be about one month, although it may last much longer.
ii. If opposed, it is impossible to give a proper idea of the time needed, since it could take months.
(b) If the local court enforces the judgment, it is enforceable:
By attachment of movable and immovable property, as well as attachment of the debtor’s debts. There are some limits to the attachment of the defendant’s salary, as well as on the attachment of his movable goods. This attachment leads to the public auction of these goods.
ii. There is no civil imprisonment in Belgium.
iii. If the defendant is a tradesman (physical person or company), the enforcement of a judgment may lead him to receivership or to bankruptcy. This leads to liquidation and sale of the assets of the debtor, in order to pay (a dividend to) his creditors. If the defendant meets the requirements of receivership, he is entitled, under some circumstances (i.e. good faith) to ask for an arrangement with his creditors (Law on the continuity of companies), which may, if accepted by the majority of the creditors or (even if they disagree) by the Commercial Court, entitle him to write off part of his indebtedness.
iv. Restraint from leaving the country can’t be imposed in civil matters.
(c) i. All parties involved in the proceedings are automatically entitled to appeal the judgment.
The judgment must be appealed within 30 days of its notification by a bailiff.
In the absence of such a notification, the judgment must be appealed within 10 years, but the latter is rather theoretical.
Unless the first judge has authorized the ‘provisional enforcement’ of the judgment, even if it is appealed, which will be the exception rather than the rule, it will not be possible to execute the judgment that is appealed by one of the parties involved in the proceedings before the Court of Appeals renders its verdict.
18. EXPENSES, LEGAL FEES AND SECURITY FOR COSTS
(a) The plaintiff must pay the bailiff’s fees and the court fees which amount to about EUR 250
(b) The attorney’s fees are charged on basis of the work done, following the Bar regulations. The fee for a straightforward application would be at least Euro 1.500.
(c) No fee contingency agreement is permitted as this is contrary to the ethical rules of the Belgian Bar Associations. It is allowed to agree on the method of calculation of the fees.
(d) The court expenses (under (a)) are recoverable. The necessary costs for translation should be recoverable but some Courts still reject claims for their recovery. The attorney’s fees are not recoverable with the exception of the “indemnité de procédure”, or “indemnification for (costs of) proceedings”, being a partial compensation for lawyer’s fees, but even then some Courts reject this.
(e) Unless a treaty is applicable (which is the case for almost every civilised country) the defendant may ask the judge to oblige the applicant to give security for the costs (exceptio judicatum solvi, art. 851 G.W.)
(a.) The foreign creditor will have the same rights to a dividend as a local creditor.
(b) The foreign trustee will have the same powers as the owner of the goods.
20. LAWYERS (WHO CAN APPEAR?)
All local lawyers can appear in all jurisdictions necessary for enforcement procedures.
21. INTERNATIONAL TREATIES
Belgium has ratified a series of international treaties which organise, either directly or incidentally, the questions of mutual or reciprocal recognition and enforcement of foreign judgments.
For the Hague Conventions, see under paragraph 5 above.
One of the most important multilateral Treaties to which Belgium is party is the European Treaty of Brussels of 27 September 1968, as amended in 1978 and 1982.
Belgium has signed bilateral treaties with France, Germany, the United Kingdom, Austria, Switzerland, and the Netherlands, which cover the subject matters, which are not covered by the Treaty of Brussels.
Belgium is also part of the Treaties of New York of 1956 relating to maintenance obligations, to the Geneva Treaty on contracts for the international carriage of goods by road, the Warsaw Convention on international carriage by air and other treaties which incidentally deal with questions of enforcement and/or jurisdiction.
22. CROSS-EXAMINATION OF AFFIDAVIT’S DEPONENT
The Belgian procedure does not have the cross-examination system. However, in some very rare cases, the court might order the personal appearance of the plaintiff; in this case, the applicant would have to pay his own travel expenses.
23. REQUIRED AFFIDAVIT
There is no required affidavit. The procedure starts with a summons, given to the defendant (in person or at his legal residence) by a bailiff.
24. NEW ACTION INSTEAD OF ENFORCEMENT
In principle, when a judgment already exists, there is no possibility of starting a new action on the same basis. The defendant will have to use the law of the previous case (the previous foreign decision), although he might not want to.
If the defendant does not, for any reason, the plaintiff may not either.
According to Belgian law, the period of prescription of a judgment is 10 years, with a maximum of 30 years after extension; practically speaking the plaintiff must start with the enforcement within the first 10 years period to obtain the extension. The prescription might be shorter, if the period of prescription is shorter in the foreign country.