Assuming you need to start legal proceedings against a foreigner individual or a foreign company, you will first want to know whether you can bring that party before a Belgian Court. You may indeed want to reconsider your initiative if you can’t bring your claim in a Belgian Court and need to start litigation in another country. The question is as important in the inverse case where you may be threatened with proceedings in a foreign Court or a Belgian Court. Your foreign opponent may be reluctant to file a claim if only Belgian Courts would be competent.
This matter of territorial competence of Courts and Tribunals is dealt with differently if the dispute has ties with a European or with a non-European counter part. For civil and commercial matters within the European Union (including EFTA members?), one needs to look into the Regulation 1215/2012 on jurisdiction and the recognition of judgments in civil and commercial matters, a.k.a. the Brussels I, bis Regulation. For general civil and commercial matters with ties outside the European Union, one should check the Belgian IPR/DIP Code. This implies that the Belgian Judge is already seized, as he will have to assess whether he has territorial competence based on this Belgian Law.
In a nutshell, Regulation 1215/2012 regulates international jurisdiction in a decreasing order of importance, whereby the most specific and exclusive are prevailing: - a set of exclusive competences, regardless of domicile (art 24) - Jurisdiction by appearance (art 26) - Insurance, consumer and employment contracts - agreements on jurisdiction (choice of forum) (art 25) - general jurisdiction based on the defendant’s domicile in an Member State - special jurisdiction when the defendant is domiciled in another Member State - Multipartite litigation and consolidated claims - Residual jurisdiction; Defendant not domiciled in any Member State - Loss of jurisdiction, lis alibi pendens.
In the following cases courts of a Member State shall have exclusive jurisdiction, regardless of the domicile of the parties (art 24): - in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated. - in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons, the courts of the Member State in which the company or legal person has its seat. - in proceedings which have as their object the validity of entries in public registers, the courts of the Member State in which the register is kept. - patents ? (nodig ?) - in proceedings concerned with the enforcement of judgments, the courts of the Member State in which the judgment has been or is to be enforced.
A party can voluntarily submit to a court of a Member State. The plaintiff obviously has given his consent by initiating the procedure in the court while the defendant consents by appearing in court. Submission however is not possible in cases of exclusive competence. There will be no submission if the defendant merely appears in order to contest the jurisdiction.
In relation to insurance, consumer and employment contracts, the weaker party is protected by rules of jurisdiction more favourable to his interests. The insurer may be sued by the policyholder, the insured or the beneficiary, in the place where the claimant is domiciled (art. 11). Likewise a consumer may bring proceedings against the other party to the contract in the courts of the Member State where that party is domiciled or in the court of the place where the consumer is domiciled (art 18). In matters relating to individual employment contracts the employer domiciled in a Member State may be sued in the Member State of his domicile, or in another Member State where the employee habitually carries out his work or in the court for the last place where he did so, or in the place where the business which engaged the employee is or was situated. An employer on the other hand may only bring proceedings in the courts of the Member State in which the employee is domiciled.
Regulation 1215/2012 on jurisdiction and the recognition of judgments in civil and commercial matters, sets out that it applies to general matters of civil and commercial law, with the exemption of i.a. the status and legal capacity of natural persons, bankruptcy, social security, arbitration, maintenance obligations, wills and successions. (see RE 1215/2012, art. 2)
Jurisdiction is generally based on the defendant’s domicile. Persons domiciled in a EU Member State shall, whatever their nationality, be sued in the Courts of that Member State. (see art. 4)
A person domiciled in a Member State may be sued in another Member State in matters relating to a contract, in the courts for the place of performance of the obligation in question. In the case of the sale of goods, the place of performance is in the Member State where, under the contract, the goods were delivered or should have been delivered. In the case of the provision of services, the place of performance is in the Member State where, under the contract, the services were provided or should have been provided. (art 7.1) Choice of law … Further exemptions to the general rules based on the defendant’s domicile are, i.a. in matters relating to tort, delict or quasi-delict, in the court for the place were the harmful event occurred or may occur. (For the full list, see art. 7)