Recent Changes in Commercial Litigation: Small but Far-reaching

On 19 October 2015, the federal legislature passed the so-called "Potpourri I Act" reforming civil procedure. The act purports to render legal proceedings swifter and more efficient while reducing the number of needless or even dilatory cases.

Certain measures provided for by the reform entered into force on 1 November 2015. Please find below a brief overview of the new measures, both current and future.

One key measure is the extension of res judicata to cover facts regardless of their legal basis. This means that if a party loses a case, it can no longer bring proceedings based on the same cause of action and the same set of facts, simply by citing a different legal basis for the action.

To streamline and expedite proceedings, new nullity (avoidance) rules have been introduced. All so-called absolute or incurable grounds for avoidance have been done away with, at least in civil proceedings. Such grounds may henceforth not result in avoidance unless the party raising this argument demonstrates, at the commencement of proceedings, that it was wronged. The court can no longer raise these grounds of its own motion.

Likewise, the appeal of interlocutory judgments (for example, an investigative measure or the grant of security) will not be possible until the time comes to appeal the final judgment. The idea, of course, is to prevent the lodging of dilatory appeals.

Another radical shift in the same vein is that the suspensive effect of an appeal is no longer the rule but rather the exception. The enforceability of a decision that has been appealed will only be suspended if the court which issued the decision expressly so decides.

The ratio legis for these changes is to avoid the lodging of appeals for the sole purpose of staying execution of the underlying judgment. That being said, provisional enforcement of a judgment is always at the risk of the enforcing party.

Another new measure is that in the event of default by a party, the court will grant the claims of the appearing party, unless and to the extent these claims violate public policy.

A final long-awaited measure pertains to the facilitation of the recovery of certain uncontested claims between traders. Such disputes constituted a heavy burden for the judiciary, which was somewhat absurd considering that the courts' role in these cases was to issue enforceable titles for uncontested claims rather than actually settle a dispute. This type of action has now been diverted from the courts, which will only be involved exceptionally and a posteriori. Rather bailiffs will now play a central role, provided they are instructed by a lawyer. Given the adjustments it requires, this new recovery procedure will enter into force by royal decree, no later than 1 September 2017.

Our Litigation department, composed of seasoned practitioners who also hold academic appointments, has of course followed these new legislative developments closely and is already hard at work advising clients on the most technical aspects of the reform.

Thus, of-counsel Jean-François van Drooghenbroeck, a professor of civil procedure and respected legal practitioner in our team, has played an active role in all reforms of the Judicial Code over the past ten years. He also advises the Order of French- and German-speaking Bars of Belgium and the Brussels Bar on the development, support and implementation of civil procedure reforms.