Belgium

• Pages: 117-134

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CHAPTER VI

BELGIUM

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 that—only 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

parties.

Obtaining Discovery Abroad

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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. INT’L 305 (2004).