Interim measures in Belgium

1.1.1 The rules regarding interim measures are part of the Belgian Judicial Code (Code judiciaire/Gerechtelijk Wetboek) (Judicial Code), which was adopted in 1967. The Judicial Code has been updated several times, to make court proceedings more efficient and less costly.

1.1.2 This does not mean, however, that the Judicial Code is completely ready for the digital era. Legal proceedings still require original, duly signed documents to be filed in court, as well as the parties’ attorneys to appear in court.

Some courts have tried to modernise and have started to offer more information online. In addition, it is possible to electronically file submissions and exhibits in an increasing number of courts.

1.1.3 In the last few years, the Belgian government introduced the so called “Potpourri Acts” which amended the judicial framework as a whole, in an effort to modernise the existing legal system and to make it more efficient.

1.1.4 To determine the applicable law in international cases, the Belgian courts will look at the Rome I Regulation 1 Council Regulation (EC) No. 593/2008 of 17 June 2008 on the law applicable to contractual obligations. .

2.1.1 As a general rule, a party must be sued or appear in the courts of the district where it is established or domiciled. For interim measures, cases can be brought before the courts of the district where the measures are to be executed. For example, a creditor can apply for an attachment over the debtor’s property by filing a request with the court of the district where the property is located.

2.1.2 In intellectual property matters only the courts that are located at the seat of a court of appeal (Ghent, Antwerp, Mons, Liège and Brussels) have jurisdiction. The president of the Commercial Court of Brussels has sole jurisdiction if the claim concerns interim (and other) measures regarding an EU-trademark, an EU-design or a patent.

2.1.3 For domestic cases, the general rule regarding geographical jurisdiction is set out in Article 624 Judicial Code. For intellectual property cases in particular, Article 633 quinquies Judicial Code provides the rules.

2.1.4 In international cases, the EU Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation) 2 Council Regulation (EC) No. 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.  applies. Although not explicitly mentioned in the Brussels Regulation, any court that has jurisdiction over the claim on the merits has jurisdiction to issue interim measures as well 3 ECJ, Van Uden, 17 November 1998, Case C-391/95, E.C.R. 1998, I-07091, para 22. . In addition, interim measures can be claimed before a court of a Member State where the interim measures are provided for in law, even if the court of another Member State has jurisdiction over the proceedings on the merits according to the Brussels Regulation 4 Brussels Regulation, art 35; Ghent, 30 June 2010, TGR-TWVR, 1, para 35. .

2.2.1 If the parties have agreed that a court in an EU Member State has jurisdiction to settle a dispute, then the case on the merits must be brought before those courts (Article 25 Brussels Regulation). Article 35 of the Brussels Regulation, however, provides:

“Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Regulation, the courts of another Member State have jurisdiction as to the substance of the matter.”

As a result, if the provisional measures are executed in one Member State, the courts there will have jurisdiction, even if the courts of another Member State have jurisdiction on the merits. In other words, Article 35 prevails over Article 25.

2.3.1 Once geographical jurisdiction is established, the functional and subject-matter jurisdiction must be determined. This is determined according to the provisions of the Judicial Code 5 Judicial Code, art 584 in conjunction with arts 573, 574 and 575. .

2.3.2 In principle, the Court of Commerce has jurisdiction over all disputes regarding intellectual property rights, but in disputes regarding copyrights, neighbouring rights or database rights in which the defendant is not an undertaking, the Court of First Instance has jurisdiction 6 Judicial Code, art 574. . The Court of Commerce has jurisdiction in all commercial matters between two undertakings, including in matters relating to company law, insolvency and restructuring.

2.3.3 As soon as one or more defendants act in relation to personal claims (as opposed to business claims), the Court of First Instance will have jurisdiction, if more than €5.000 is claimed. For small claims, i.e. claims below the threshold of €5.000, the Justice of the Peace has jurisdiction.

2.4.1 If different courts have jurisdiction over the same interim measure, the choice of where to bring the case is a tactical one and will be decided by the applicant. The following aspects must be considered when choosing the venue:

• language (in the Flemish region only Dutch can be used in legal proceedings; in Wallonia only French can be used; in Brussels either language can be used);
• average duration of proceedings in the respective jurisdictions;
• degree of specialisation of the president of the court in certain areas of the law; and
• avoidance of a dispute over jurisdiction; disputes are least likely to arise when the application is made at the court where the respondent is located or where the measure is to be executed.

3.1.1 Interim or conservatory measures can be claimed in Belgium either by separate summary proceedings or pursuant to Article 19§3 Judicial Code as part of the proceedings on the merits.

3.1.2 Article 19 provides that, at any stage in the proceedings on the merits, the judge can order an interim measure to investigate the claim, to settle an interim dispute or to regulate the situation of the parties temporarily. The applicant can file a request for interim measures at any stage of the proceedings.

3.1.3 The main advantage of these interim measures by comparison with separate summary proceedings is that urgency is not required. The applicant need not show that there is an urgent need to obtain the interim measures 7 Judicial Code, arts 17 and 18. .

3.1.4 Typical examples of interim measures that are awarded on the basis of Article 19§3 Judicial Code are: the appointment of a technical expert to examine the cause of an incident and the extent or quantum of damages in a tort case; the appointment of an accountant to examine the financial consequences of a breach of contract; and, if the respondent unlawfully stopped performing a contract, an order to comply with its contractual obligations.

3.2.1 In urgent cases, a creditor may ask the judge for permission to obtain a protective attachment over the debtor’s assets 8 Judicial Code, art 1413. . A protective attachment cannot be used as leverage to secure monetary claims 9 J. Laenens, K. Broeckx, D. Scheers, P. Thiriar, Handboek Gerechtelijk Recht, Antwerpen, Intersentia, p 712 a.f. . Even if the creditor has an undisputed claim against its debtor, no protective attachment can be obtained except in cases of urgency.

3.2.2 The court has recognised that cases of urgency include situations where the debtor’s financial position is critical, for instance if the debtor is about to go into bankruptcy or there is a risk the debtor will remove his assets from the jurisdiction. The creditor bears the burden of proving urgency.

3.2.3 The creditor’s claim must also be certain, established and due. The “certainty” requirement means the creditor must have a prima facie claim which cannot reasonably be challenged. The requirement that the claim shall be “established” means that the exact sum of the claim should be fixed or at least be provisionally determinable. Finally, the requirement that the claim shall be “due” means that the creditor’s right to claim must have arisen.

3.2.4 Permission to obtain a protective attachment must be sought via an ex parte request addressed to the attachment judge of the Court of First Instance 10 Judicial Code, art 1417. .

3.2.5 Alternatively, creditors can obtain a protective attachment by garnishment, i.e. by attaching assets that are in the possession of third parties such as banks, without prior permission of the attachment judge. The creditor must have documents showing evidence of a certain, established and due claim, and must hand them over to a bailiff. The bailiff will serve a notification to attach the assets due by the third party to the debtor 11 Judicial Code, art 1445. . A protective attachment by garnishment is only allowed in cases of urgency, when the debtor’s financial position is critical.

3.3.1 The president of the court 12 Depending on the case, either the President of the Commercial Court or the Court of First Instance.  can make a preliminary decision in urgent matters 13 Judicial Code, art 584. . According to the Belgian Supreme Court, a matter is urgent if an immediate decision is required to prevent a certain level of damage or severe inconvenience 14 Cass, 21 March 1985, Arr. Cass., 1984-85, 1008-1011 . Therefore, summary proceedings are appropriate when proceedings on the merits would not resolve the dispute in time. This gives the summary judge broad powers 15 Cass, 21 May 1987, RW 1987-1988, 1425. . The urgency of the case and whether urgent and interim measures are required have to be assessed at the time of the decision 16 Cass, 11 May 1998, AC 1998, nor 231. .

3.3.2 The case is brought before the president of the court by a writ of summons served upon the counterparty. In cases of absolute urgency, it is possible to initiate the case with an ex parte request 17 Judicial Code, art 584 al 3. . In such a case the summary proceedings will remain ex parte and the respondent will not be heard. Ex parte proceedings are only possible in extremely exceptional circumstances in which it has to be shown that even a minimal delay would lead to irreparable damage. For instance, if a party blocks access to the premises of another party (such as a competitor in a commercial dispute or an employee in a labour law dispute), an ex parte interim measure is the best means to avoid further delays and irreparable harm. Also, if the respondent cannot immediately be identified and therefore cannot be sued, an ex parte request will be required. This happens, for instance, when a container with counterfeit products is expected to arrive in a harbour, but the owner of the goods is not yet identified. Finally, if the granting of the right to be heard renders the measures useless, some courts grant the measures upon an ex parte request.

3.3.3 Interim measures that the president can order include:

• appointment of “sequesters” who take possession of particular assets and ensure the assets are not disposed of or dissipated;
• appointment of an expert to investigate the causes and the consequences of an accident;
• ordering that one or more witnesses are heard if any delay of the hearing of the witnesses might lead to the witness never being heard, for instance if the witness may leave the country;
• ordering that a payment due to be made by the debtor to a third party be blocked if such payment would mean that the debtor would not be able to pay its debt to the claimant after the conclusion of the proceedings on the merits; and
• ordering that the payment of a bank guarantee be blocked if the payment of the guarantee is demanded in bad faith or in fraudulent circumstances.

3.3.4 Apart from the urgency requirement, the applicant will also have to show the:

• prima facie validity of its right or claim;
• balance of the interests being in its favour; and
• preliminary character of the measures requested (the decision of the president may not affect the later decision on the merits).

3.3.5 With regard to the first requirement, the Supreme Court held that it is not absolutely necessary that the applicant shows the prima facie validity of its right or claim. Interim measures may be imposed, even if the right or claim of the applicant can be disputed, provided that the measures prevent further harm to the applicant while not causing disproportionate harm to the respondent 18 Cass, 4 February 2000, www.cassonline.be, case number RC00241_1. .

3.3.6 In case of the infringement of an intellectual property right, it is possible to seize assets of the alleged infringer. To obtain such measures, the applicant must show:

1. (i) that it is the holder of a prima facie valid intellectual property right;
2. (ii) its right cannot reasonably be challenged; and
3. (iii) that the precautionary seizure is justified taking into account the interests of both parties and the general public.

3.3.7 In 2018, the Belgian Act regarding the protection of trade secrets introduced the possibility for the president of the court to order, in case of the unlawful acquisition, use or disclosure of a trade secret and upon request of the holder of that trade secret, the precautionary seizure or delivery up of the infringing goods, including imported goods, so as to prevent their entry into, or circulation on, the market 19 As implemented by Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. .

3.4.1 A protective letter contains legal and factual arguments as a defence to an expected application for an ex parte interim measure. A protective letter is filed by a would-be respondent in circumstances where an ex parte application has not been made yet, but where that party expects such an application and wishes to preempt it by writing to the court with its arguments in response to ensure its views are taken into account by the court.

3.4.2 In general, protective letters cannot be filed in Belgium as the courts have no system to register the letters and keep track of them. As a result, some courts refuse to accept protective letters. However, the presidents of the Courts of Commerce and the Court of First Instance in Brussels do accept protective letters in ex parte intellectual property disputes.

3.4.3 In such cases, protective letters are used as a defence against an expected ex parte request to obtain a counterfeit seizure order. The law regarding counterfeit seizures allows the president of the court to exceptionally hear the respondent, even if the case starts with an ex parte request (see section 3.5 below). Therefore, some courts will also take the protective letters into account 20 V. Raus, Handhaving in België, BMM Bulletin, 3/2011, p 127-128. .

Introduction

3.5.1 The holder of almost any intellectual property right, who suspects that its rights have been infringed, can file an ex parte request with the President of the Commercial Court to obtain a ‘counterfeit seizure order’ 21 Judicial Code, art 1369 bis. . The holders of patents, copyrights, neighbouring rights, database rights, designs and trademarks may obtain permission from the court to enter the premises of the alleged infringer without notice to collect evidence about the infringement and its scope.

3.5.2 The holders of intellectual property rights may also obtain attachment measures, blocking any further distribution of goods alleged to be counterfeited.

3.5.3 The legal proceedings to obtain counterfeit seizure orders were amended by the Act of 10 May 2007 which transposes the European Enforcement Directive 2004/48/EC into Belgian law.

3.5.4 The counterfeit seizure proceedings start with an ex parte request. To prevail, the applicant must show:

1. (i) that it is the holder of a prima facie valid intellectual property right; and
2. (ii) that it has reason to suspect that its rights are being infringed.

If these two elements are shown, the court will allow measures to secure evidence supporting the allegations of counterfeiting. No actual proof of infringement is needed.

3.5.5 If the applicant also wants to obtain attachment measures, it must also show that its right cannot reasonably be challenged and that the attachment is justified taking into account the interests of both parties and the general public.

3.5.6 In addition to holders of Belgian patents, the holders of foreign patents may also apply for counterfeit seizure measures in Belgium. The Belgian Supreme Court (Hof van Cassatie / Cour de Cassation) ruled on 3 September 1999 that a company which held patents in Germany, Great Britain and France, but not in Belgium, was still entitled to obtain an order to secure evidence in Belgium about the alleged infringing activities 22 Cass, 3 September 1999, www.cass.be., case number C960097N. .

Jurisdiction of the president of the court.

3.5.7 The request to obtain a counterfeit seizure order is brought before the president of the Commercial Court if the alleged infringer is an undertaking and before the Court of First Instance if the alleged infringer is not an undertaking, in conformity with the rules described in section 2 above. Only the presidents of the courts that are located at the seat of one of the courts of appeal have jurisdiction. This means that the request for a counterfeit seizure must be filed with the presidents of the courts of Brussels, Antwerp, Ghent, Mons or Liège. If the request for a counterfeit seizure is based on an EU-trademark, an EU-design or a patent, it must be filed with the president of the Commercial Court of Brussels. The presidents’ decisions are effective throughout the country 23 Judicial Code, art 1369 bis/1, § 1. .

3.5.8 Normally it will only take a few days for the president of the court to render its decision.

3.5.9 In principle, the proceedings to obtain a counterfeit seizure order are ex parte proceedings in which the alleged infringer is not heard. This prevents the infringer from disposing of or destroying the evidence sought by the applicant before a court order is made.

The president of the court may, however, decide to hear the alleged infringer in cases where attachment measures are also requested, if there is reasonable doubt that such measures are justified. In this case, hearing submissions from the alleged infringer will help to avoid inappropriate seizures but will also mean the applicant’s element of surprise is lost.

3.5.10 If the president grants a counterfeit seizure order, he or she will appoint one or more technical experts who will consider the alleged infringing products or process, and will determine the origin and the scope of the infringement. The expert must be neutral and have the technical skills to successfully provide the expertise required. The expert’s knowledge will be very important, for instance in complex patent cases. The expert must make sure that trade secrets of the alleged infringer are not unnecessarily revealed to the applicant. The expert may take all measures required to complete his work and must file a report containing his conclusions regarding the alleged infringement within two months of its appointment.

3.5.11 In addition to these “evidentiary” measures, the president of the court can also grant attachment/precautionary seizure measures. The attachment measures focus on “the infringing products, the materials used for the production and/or the distribution of those products, the tools and the relevant documents.” 24 Judicial Code, art 1369 bis/1 § 4. . If the alleged infringer does not comply with the court order, the president can impose a financial penalty. The president may also order that the holder of the allegedly counterfeit products may not move them or that the bailiff may seal them. Finally, the president can also order the attachment of any revenues directly derived from the counterfeiting activities.

General characteristics of counterfeit seizure proceedings

3.5.12 The counterfeit seizure proceedings are not proceedings on the merits and are separate from any other proceedings. However, proceedings on the merits must be initiated within the term set by the president in the court order or within 20 working days or 31 calendar days, whichever period is longer, following the filing of the report by the court appointed expert. If no action on the merits is filed within this term, the expert report can no longer be relied upon as evidence and may not be disclosed.

3.5.13 To avoid abuses, the president of the court may order that the interim measure can only be executed once the applicant has posted a bond. The posting of a bond will often be required in cases where the applicant requests attachment measures, but not if only a “evidentiary seizure order is requested. The amount of the bond usually varies between €2,500 and €10,000.

3.5.14 After the service of the counterfeit seizure order by the bailiff, the alleged infringer may file an objection to the decision. The case will be brought again before the president who will affirm, amend or cancel the earlier decision. If the earlier decision is cancelled, the court can later award damages to the respondent if it determines the counterfeit seizure order was not justified.

Form of the request

4.1.1 In Belgium, requests for interim measures have to be in writing and filed with the court. It is not yet possible to file a request electronically. Interim applications are filed in the form of a request in ex parte proceedings or in the form of a writ of summons that is served on the respondent by the bailiff in cases of regular summary proceedings.

Content of the request

4.1.2 An ex parte request must include the following (or risks being deemed invalid):

• date;
• name, surname, profession and address of the applicant, and the name, surname, address and the capacity of its legal representatives; for a legal entity, its registration number must be included;
• subject and a summary of the legal grounds of the claim;
• name and address of the counterparty (if the party is known);
• designation of the judge who has to examine the case; and
• signature of the applicant’s lawyer 25 Judicial Code, art 1026. .

4.1.3 A writ of summons must include the following (or risks being deemed invalid):

• name, surname and the address of the applicant;
• name, surname and the address of the respondent; for a legal entity, its registration number must be added for both the applicant and the respondent;
• subject and summary of the legal grounds of the claim;
• designation of the judge who has to examine the case; and
• place, day and time of the first court hearing and the address of the court 26 Judicial Code, art 702. .

The writ of summons is served by a bailiff who verifies the parties’ identities and correct addresses. There must be at least two days between service of the writ of summons and the first court hearing. In exceptional cases, the applicant may request that this two days period be shortened to one day or a few hours.

Enclosures to the request

4.1.4 The applicant must attach all evidence in support of its request (see section 4.3 below) 27 Judicial Code, art 870. .

4.2.1 The purpose of summary proceedings is to obtain a preliminary court decision in a short period of time which varies from a few days to a few months. At the first court hearing, the president may hear the case and may then render his decision a few days later.

4.2.2 In most cases, however, at the first court hearing the parties and the judge only discuss the schedule for handling the case. Generally, the respondent will be granted a few days to a few weeks to file its defence in writing. Subsequently, the applicant will be granted the same timeframe to reply to the respondent’s written submission. Then, the respondent will have the “last word” and is thus able to file a written rejoinder. Finally the case will be heard by the president of the court. The hearing includes oral submissions by the parties. After having heard the oral arguments, the president of the court will examine the parties’ submissions and the exhibits filed and will render the judgment.

4.2.3 In extremely urgent cases, the judge can call the parties for an urgent hearing, and if necessary this can take place on holidays and/or at his private house 28 Judicial Code, art 1036. . Alternative hearing methods such as telephone or video conferencing are not used in Belgium.

4.2.4 Interim measures are immediately enforceable. Even if the respondent appeals a decision awarding interim measures, it must comply with the court’s order 29 Judicial Code, art 1039. . If the respondent does not comply, penalties can be incurred on a daily basis or per occasion the order is breached.

4.3.1 Each party has to evidence the facts on which it relies 30 Judicial Code, art 870. . No distinction is made between formal evidential requirements in interim proceedings and in ordinary proceedings.

4.3.2 In general, evidence consists of written exhibits, images, technical reports, etc. In theory, witnesses can be called by the court upon the request of the parties, but in reality, the courts almost never hear witnesses. In most cases, witness testimony is provided in writing, supported by an affidavit confirming that the witness statement meets the requirements of the Judicial Code.

5.1.1 The respondent can present counter-arguments and evidence either at the hearing or in written submissions.

5.1.2 In ex parte proceedings, the respondent will not be heard and he or she will only have the possibility to object to the decision as soon as it has been served by the bailiff.

5.2.1 The court is required to apply the principle of proportionality and to balance the interests of all the parties involved 31 See e.g. Judicial Code, art 584, 5°, (3). .

5.3.1 The court may make the interim measure conditional upon the payment of security by the applicant, for example in ex parte proceedings. However, in general the courts do not require the applicant to give security.

5.4.1 The respondent’s interests are also safeguarded by its right to seek compensatory damages. If the Court of Appeal amends the First Instance Court’s decision and withdraws the interim measure, and if the enforcement of the First Instance Court’s decision caused harm to the respondent, the respondent is entitled to claim for compensation 32 Judicial Code, art 1369 bis/3 § 2 and article 1369 ter § 3. .

6.1.1 The requirements for interim measures are the same whether or not the case on the merits has already commenced. Often interim measures will only be granted on the condition that the applicant initiates the case on the merits within a certain timeframe. If no case on the merits is initiated, the interim measures cease to have effect.

6.1.2 For counterfeit seizure proceedings, the applicant must file proceedings on the merits shortly after the filing of the report by the court appointed expert as outlined in paragraph 3.5.12 above.

6.2.1 Requests for interim measures are decided upon quickly where the request is for an ex parte injunction. If the urgency is obvious, the court will issue its order within one or two working days, sometimes even within hours. If time is of the essence, the applicant is advised to informally get in touch with the court before submitting its formal request.

6.2.2 In regular summary proceedings, where the respondent is being heard, in most cases it will take a few weeks or even months before a decision is rendered. The Belgian courts have often too much work and so they are not always able to render a decision within the timeframe requested by the applicant.

7.1.1 The legal fees, including compensation for professional representation, are dealt with in the Royal Decree of 26 October 2007 (Decree). According to the Decree, the successful party can claim some of the legal fees from the unsuccessful party.

7.1.2 The legal fees consist of all fees payable to the bailiff and to the court. This part of the fees is in most cases limited to a few hundred euros.

7.1.3 The legal fees also consist of the parties’ attorneys’ fees. In Belgium, the successful party will not be able to obtain compensation for all the fees that it actually paid to its attorney. The attorneys’ fees for which the prevailing party can claim compensation are fixed in a statutory fee schedule. Depending on the value of the dispute, the fee schedule provides three amounts: the standard amount, a minimum amount and a maximum amount as follows:

7.1.4 Usually the court will award the standard amount. If the successful party believes that it should be awarded the maximum amount, it has to explain in its written submission why the maximum amount is justified, for example, if the case was extremely complex. The award can never exceed the maximum amount, even if the actual attorneys’ fees were much higher than the statutory amounts. On the other hand, the respondent may request the judge to award the minimum amount, for example, in cases where the respondent is in a difficult financial situation.

7.2.1 There is no general obligation to pay an advance on costs or to pay security for a successful party’s costs. In exceptional cases the parties can request an advance on their costs and legal fees in summary proceedings 33 On the basis of Judicial Code, art 584 in conjunction with Judicial Code, art 1039. .

7.2.2 To obtain a provisional order requiring a party to pay an advance on costs and legal fees, the applicant must show that he is not able to exercise his rights properly if he does not receive the advance payment. In family law matters, the courts may order one party to pay the costs and legal fees of the other party, if the latter is in a financial position that would otherwise prevent it from participating in the legal proceedings.

7.2.3 In commercial matters, it is rare that a party is ordered to pay advance costs and/or a security for costs. Accordingly, the most successful way of securing the compensation for the costs of the proceedings is to apply for attachment measures via separate legal proceedings before an attachment judge.

8.1.1 Interim measures can be modified or revoked if the circumstances that justified the measures have changed. Either party (applicant or respondent) may bring the case again before the president of the court and explain why the measures obtained should be modified or revoked.

8.1.2 If the applicant does not start proceedings on the merits within the timeframe set by the court, the interim measures will automatically cease to be effective. Often, however, the president of the court does not impose a timeframe to initiate proceedings on the merits.

8.1.3 The interim measures cease to have effect as soon as the decision on the merits is rendered.

8.2.1 Where there has been a decision made ex parte, the respondent may file an objection (“opposition”) if it does not agree with the decision. The opposition (tierce opposition/derdenverzet) must be filed within one month of service of the interim award on the respondent. The respondent will bring the case before the president of the court that rendered the first instance decision that is being challenged. The objection must be served by the bailiff on the applicant, summoning him to appear at the next hearing before the president of the court. The president will reconsider the case and, taking into account all of the respondent’s arguments, will either confirm, amend or revoke the ex parte award.

8.2.2 Either party can file an appeal against any decision imposing or not imposing interim measures, provided that since the latest “Potpourri-reforms” an appeal against an interim decision on the basis of Article 19§3 Judicial Code (see section 2.1 above) can only be filed together with the appeal against the final decision 34 Judicial Code, art 1050 and art 1055. . The appealing party has to file the appeal within one month of the final decision being served. The appeal has to be filed with the Court of Appeal. Decisions of the Justice of the Peace have to be appealed at the Commercial Court or at the Court of First Instance.

8.2.3 The appeal does not have suspensive effect: both parties must comply with the court order imposing the relevant interim measure, notwithstanding any appeal. As long as the interim decision is not repealed, it will remain effective; however, the party that chooses to impose the court order does so at its own risk. This means that if the appellant wins the case on appeal, it can request compensation in respect of the executed measures. Where the interim measures ordered by the first instance judge are manifestly based on an error in law or in fact, and the first instance decision is causing great harm, the appellate court may revoke it immediately.

9.1 Enforcement of interim measures issued by national courts

9.1.1 There is no enforcement procedure for interim measures imposed by Belgian courts. The measures will be enforceable per se. The applicant must obtain an official copy of the court decision (expédition/uitgifte), with a declaration that the decision can be enforced. This official copy will be served upon the other party by the bailiff. As from the date of service, the decision will have full effect and the time limits to file an appeal or objection will start running. A breach of the court order may give rise to penalties (astreintes/dwangsommen) if the president of the court provided in the interim decision that penalties would apply in the event of breach 35 Judicial Code, art 1385 bis. .

9.2.1 If an order for an interim measure was issued in a contracting state of the Brussels I Regulation, enforcement follows the Regulation; however, if the respondent is domiciled in Iceland, Norway or Switzerland, or if the courts in Iceland, Norway or Switzerland have exclusive jurisdiction based on Article 22 or 23 of the Lugano Convention, the Lugano Convention applies 36 Brussels I Regulation, art 73(1) and Lugano Convention, art 64. . For all other cases, enforcement follows the rules of the private international law of Belgium.

Enforcement under the Brussels Regulation

9.2.2 An interim measure order issued in a member state of the Brussels Regulation or of the Lugano Convention will be recognised and enforced in Belgium under the rules of the Regulation (Articles 36 to 57) or of the Lugano Convention respectively. In general, enforcement is swift and possible without any major issues.

Enforcement under Belgian private international law

9.2.3 The recognition and enforcement of the decisions of courts from countries that are not subject to the Brussels Regulation or member states of the Lugano Convention is governed by Article 22 et seq of the Belgian Private International Law Act 37 Act of 16 July 2004 regarding the Code of Private International Law, B.S./M.B., 27 July 2004. . For such decisions, the applicant must obtain an exequatur decision from the Court of First Instance confirming that the decision was rendered without any breach of the rules of due process and does not constitute a breach of Belgian public order.

10.1.1 Even if the parties have agreed that an arbitral tribunal will have jurisdiction on the merits, they can still bring a claim regarding interim measures before the state courts. Accordingly, a Belgian court can have jurisdiction to award interim measures even if an arbitral tribunal has already been appointed.

10.2.1 Provided the parties have not agreed to the contrary, the arbitral tribunal has the power to grant interim relief. In that case, both the arbitral tribunal and the state courts have jurisdiction to impose interim measures. This can lead to a situation where one orders interim measures while the other rejects such a request. Belgian law does not include provisions on how to avoid conflicting decisions on interim measures imposed by an arbitral tribunal and by a state court.

10.3.1 The recognition and enforcement of foreign arbitral awards are not within the scope of the Brussels Regulation and are governed by the 1958 New York Convention (New York Convention). According to the New York Convention interim orders are not final and therefore do not qualify as enforceable awards.

10.3.2 However foreign arbitral tribunals may also seek the assistance of the Belgian court at the place of enforcement if a party does not voluntarily comply with an order for an interim measure.