A. Introduction
Pretrial discovery as it is practiced in the United States is unknown to
the Belgian legal system. In general, no party can be forced to deliver to
the other party all evidence to support its case and no party has a general
procedural right to seek information or documents from the other party. In
Belgium, each party provides the evidence (documents, assumptions,
witnesses, etc.) to prove its own case and to rebut what it expects the other
party will seek to establish.1 In addition, civil proceedings are organized
in Belgium in such a way thatonly upon the filing of its memoranda
briefs—a party must materially deliver to the other party the documents it
wishes to submit to the court in support of its arguments.2 This means that
often a party will not know what evidence the other party will produce
until the latter has filed its memoranda.
Under Belgian law, all parties must collaborate in good faith to
establish truth in court. As parties do not always voluntarily produce the
necessary evidence, the Belgian legal system grants judges certain powers
to intervene. Thus, the Belgian Code of Civil Procedure allows the judge
to order various specific measures to gain a better insight in the facts of
the case.3
1. The Belgian Civil Code stipulates that “he who claims execution of an
obligation must prove it. Reciprocally, he who claims to be released must
prove payment or the fact which has produced the extinction of his
obligation.” CODE CIVIL [C.CIV.] art. 1315 (Belg.). The Code of Civil
Procedure stipulates that “every party has to prove the facts that it adduces.”
CODE JUDICIAIRE [C.JUD.] art. 870 (Belg.).
2. C.JUD. art. 736 (Belg.).
3. Examples of such measures are the appointment of an expert, ordering the
production of documents, the hearing of witnesses, and the hearing of the
Obtaining Discovery Abroad
B. Discovery in Belgium
In contrast to many other countries in the European Union, Belgium
is not a signatory to the Hague Convention on the Taking of Evidence
Abroad in Civil and Commercial Matters (the Hague Evidence
Convention).4 Thus, depositions taken by court-appointed commissioners
or by consular officers as provided in the Hague Evidence Convention are
not permitted. Belgium did, however, sign and ratify the Hague
Convention on Civil Procedure of March 1, 1954,5 (the Hague Convention
of 1954) whereby for civil and commercial matters the burdensome
diplomatic procedure for rogatory commissions is described. The Hague
Convention of 1954 has been signed by nearly fifty countries.6 The United
States has not signed the Hague Convention of 1954.
As Belgium is not a signatory to the Hague Evidence Convention and
the United States is not a signatory to the Hague Convention of 1954, there
is officially no international treaty that applies to the international judicial
assistance in civil and commercial matters between Belgium and the
United States and to discovery in Belgium from the United States. Based
on Belgium’s international customs, however, Belgium does accept
requests for rogatory commissions from the United States that are in line
with the Hague Convention of 1954.
On January 1, 2004, EC Regulation 1206/2001 on the Taking of
Evidence in the European Union entered into force.7 The Regulation,
which also applies to Belgium, governs requests made by courts of
4. Hague Convention on the Taking of Evidence Abroad in Civil and
Commercial Matters, Mar. 18, 1970, 23 U.S.T. 2555, 847 U.N.T.S. 231,
reprinted at 28 U.S.C. § 1781 [hereinafter Hague Evidence Convention].
5. Hague Convention on Civil Procedure, Mar. 1, 1954, 286 U.N.T.S. 267
[hereinafter Hague Convention of 1954].
6. Albania, Armenia, Argentina, Austria, Belarus, Belgium, Bosnia &
Herzegovina, China, Croatia, Cyprus, Czech Republic, Denmark, Egypt,
Finland, France, Germany, Hungary, Iceland, Israel, Italy, Japan,
Kyrgyzstan, Latvia, Lebanon, Lithuania, Luxembourg, Macao, Macedonia,
Moldova, Mongolia, Morocco, Netherlands, Norway, Poland, Portugal,
Romania, Russian Federation, Serbia & Montenegro, Slovakia, Slovenia,
Spain, Suriname, Sweden, Switzerland, Turkey, Ukraine, Uzbekistan, and
Vatican City.
7. Council Regulation 1206/2001 on Cooperation between the Courts of the
Member States in the Taking of Evidence in Civil or Commercial Matters,
2001 O.J. (L 174) 1. See Arnaud Nuyts & Joe Sepulchre, Taking of
Evidence in the European Union under EC Regulation 1206/2001, 5 BUS.
L. INTL 305 (2004).

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