Brussels International Business Court: Parliament adopts amending Bill

On 10 December 2018, the Committee for Legal Affairs of the Federal Chamber of Representatives adopted a draft bill (the "Bill") for the creation of the Brussels International Business Court (the "BIBC"). The Belgian government had already approved a first draft in October 2017 and submitted it to Parliament in May 2018 (see VBB on Belgian Business Law, Volume 2018, No. 5, p, 14, available at www.vbb.com). The Bill now reflects the opinions given by the Council of State (Raad van Staat/Conseil d'Etat) and of the High Council of Justice (Hoge Raad voor de Justitie/Conseil supérieur de la Justice), as well as some of the amendments put forward by Members of Parliament. However, the key features of the BIBC remain largely unchanged.

The BIBC will have jurisdiction to hear international disputes arising between enterprises and for which other courts do not have exclusive jurisdiction. The jurisdiction of the BIBC will be based on the consent of all parties involved. This consent will have to be expressed in a contract, a judgment delivered by a Belgian, foreign or international court, or by an arbitral tribunal which refers the dispute to the BIBC.

According to the Bill, a dispute will be considered to be "international" if: (i) the parties to the dispute are established or have their usual residence in different States; or if (ii) a substantial part of the obligations arising out of the commercial relationship between the parties in dispute, or the place with which the dispute has the closest relationship, are not in the same State as the establishments or the usual residences of the parties; or (iii) elements of foreign law are necessary to determine the dispute.

However, while the original Bill included a provision according to which the parties would have been able to agree that their dispute possessed links with more than one State (which would have been sufficient to trigger the jurisdiction of the BIBC), that provision has now been removed. The deletion follows the Council of State's remarks that such a dispute would not be objectively international. In addition, the Bill formerly obliged the parties to demonstrate that a language other than Dutch, French or German was commonly used in the context of the relationship which gave rise to the dispute. This condition has now also been removed.

The BIBC's rules of procedure will be based on the UNCITRAL Model Law. By way of illustration, the BIBC may order interim measures and issue preliminary injunctions under conditions inspired by those provided for in the UNCITRAL Model Law. However, unlike the latter, the Bill does not impose that the parties' agreement submitting their disputes to the jurisdiction of the BIBC should be in writing. Interestingly, the Bill also borrows fundamental concepts of international arbitration law. It distinguishes the seat of the BIBC (i.e., Brussels) from the actual location of the proceedings, including the deliberation, the hearing of witnesses, experts and/or parties, as well as the inspection of evidence or merchandise (i.e., any place that is deemed appropriate by the members of the BIBC). The Bill also allows the BIBC to rule on its jurisdiction (i.e., kompetenz/kompetenz principle) and also introduces the principle of separability (i.e., the principle according to which a jurisdictional clause in a contract is independent from the main contract and can thus be enforced notwithstanding the unenforceability or invalidity of the underlying contract).

The working language of the BIBC will be English. However, appeals on points of law to the Supreme Court (see below) and requests for preliminary rulings to the Constitutional Court (Grondwettelijk Hof / Cour constitutionnelle) will be made in either Dutch or French. In addition, third-party interventions may be made in either Dutch, French or German. In such a case, the submissions and pleadings will be translated into English.

Judgments delivered by the BIBC will not be subject to appeal, with the exception of appeals on points of law before the Supreme Court (Hof van Cassatie / Cour de Cassation). However, on 18 December 2018, a Member of Parliament submitted a proposed amendment providing that judgments of the BIBC should not be subject to review by the Supreme Court. The amendment was justified by the Supreme Court's inability to exert control over points of foreign law. In addition, the possibility of appeals to the Supreme Court would be counterproductive, considering that the creation of the BIBC aimed to speed up proceedings. Finally, the proposed amendment emphasises that translation-related issues are likely to arise, since the working language of the BIBC will be English, while the working languages of the Supreme Court are Dutch and French.

Lastly, the BIBC will be staffed by both professional judges and legal experts from domestic and foreign jurisdictions.

While the BIBC was initially expected to start operations on 1 January 2020, that timing is now in doubt because of the current governmental crisis.

By Quentin Declève and Margot Vogels