Anti-Suit Injunctions in Belgium

Anti-suit injunctions in Belgium are court orders directing a party to refrain from commencing or continuing proceedings in a foreign forum. They are among the most contested tools in cross-border litigation, raising fundamental questions about judicial sovereignty, EU law constraints, and contractual enforcement. For international businesses operating in or through Belgium, understanding when such relief is available - and when it is not - can determine whether a carefully negotiated dispute resolution clause survives a hostile forum challenge. This guide covers the legal framework, procedural requirements, strategic considerations, enforcement dynamics, and the key risks that foreign founders and counsel frequently underestimate.

An anti-suit injunction is an order directed at a party, not at a foreign court. It does not purport to bind the foreign tribunal; it compels the respondent, under threat of contempt or equivalent sanction, to desist from pursuing proceedings elsewhere. The distinction matters enormously in Belgium, where courts are sensitive to the appearance of interfering with foreign judicial sovereignty.

Belgian law does not have a dedicated statutory regime for anti-suit injunctions. Relief is sought either through the ordinary summary procedure before the president of the court of first instance - the procedure in kort geding under Article 584 of the Belgian Judicial Code - or through substantive proceedings where an injunction forms part of the principal claim. The kort geding procedure is the dominant vehicle in practice because it offers speed: a hearing can be scheduled within days, and an order can issue within weeks.

The legal basis for the injunction itself is typically found in contract - most commonly an exclusive jurisdiction clause or an arbitration agreement - combined with the general principle that a party causing unlawful harm may be ordered to cease that conduct. Belgian courts treat the breach of an exclusive forum agreement as a form of contractual breach capable of generating injunctive relief, provided the classic conditions for interim measures are met.

A non-obvious requirement is that the applicant must demonstrate both urgency and a prima facie legal basis. Belgian kort geding judges do not decide the merits definitively; they assess whether the applicant';s position is sufficiently credible to justify interim protection pending a full hearing. This threshold is meaningful but not prohibitive in well-documented cases.

The most significant structural limitation on anti-suit injunctions in Belgium arises not from Belgian domestic law but from EU law. The Court of Justice of the European Union, in its Turner v Grovit and West Tankers decisions, held that anti-suit injunctions issued by courts of one EU member state to restrain proceedings in another member state are incompatible with the Brussels I framework - now Brussels I Recast, Regulation (EU) No 1215/2012.

The reasoning is straightforward: each member state';s courts must be free to determine their own jurisdiction under the Regulation. An injunction from a Belgian court telling a party not to sue in, say, a German or French court would undermine that principle. Belgian courts have consistently applied this constraint, and practitioners who approach Belgian litigation expecting the English-style anti-suit injunction to operate freely across the EU will be disappointed.

The practical consequence is that anti-suit injunctions in Belgium are most viable in two scenarios. First, where the target proceedings are in a non-EU jurisdiction - for example, the United States, the United Kingdom post-Brexit, or an Asian forum. Second, where the dispute falls within the arbitration carve-out: the Brussels I Recast does not apply to arbitration, and Belgian courts retain broader latitude to restrain proceedings that violate an arbitration agreement, even if those proceedings are in another EU member state.

In practice, founders should consider the geographic scope of their dispute resolution clause carefully at the drafting stage. A clause designating Belgian courts exclusively, combined with a parallel arbitration fallback, creates a more robust platform for injunctive relief than a simple jurisdiction clause alone.

To obtain an anti-suit injunction through the kort geding procedure, the applicant must satisfy the president of the competent Belgian court on three core elements.

The first is urgency. Belgian procedural law requires that the situation cannot reasonably await a full merits hearing. Where a foreign proceeding has already been filed and is advancing, urgency is generally straightforward to establish. Where the threat is prospective, the applicant must demonstrate concrete and imminent risk rather than a speculative concern.

The second is a prima facie legal basis - fumus boni juris in the Latin formulation still used in Belgian practice. The applicant must show that the underlying claim, whether contractual or tortious, has a reasonable prospect of success. For injunctions based on exclusive jurisdiction clauses, this means producing the contract, demonstrating that the clause is clear and applicable, and showing that the respondent';s foreign filing falls within its scope.

The third is proportionality. The Belgian court will weigh the harm to the applicant from the foreign proceedings against the harm to the respondent from being restrained. Where the foreign proceedings are clearly abusive - filed in a distant forum with no genuine connection to the dispute - proportionality tends to favour the applicant. Where the respondent has a plausible argument that the chosen forum is appropriate, the balance becomes more contested.

A common mistake is failing to serve the respondent correctly before the hearing. Belgian procedural rules on service are strict, and an injunction obtained without proper notice carries significant risk of being set aside. Emergency ex parte orders are possible but rare; Belgian courts strongly prefer inter partes hearings even in urgent matters.

The relevant competent authority is the president of the court of first instance (rechtbank van eerste aanleg / tribunal de première instance) in the district where the defendant is domiciled or where the contractual obligation was to be performed. For commercial matters, the president of the enterprise court (ondernemingsrechtbank / tribunal de l';entreprise) may have jurisdiction depending on the parties'; status.

Anti-suit injunctions in Belgium are not purely defensive tools. They can be deployed offensively to consolidate litigation in a preferred forum, to protect an arbitration seat, or to prevent a counterparty from obtaining an early judgment in a sympathetic jurisdiction that might then be used as leverage in settlement negotiations.

Consider a scenario involving a Belgian-headquartered technology company that has licensed its software to a distributor in Southeast Asia under a contract with an exclusive Brussels arbitration clause. The distributor, facing a termination notice, files proceedings in its home courts seeking a declaration that the termination was unlawful. The Belgian company can apply to the Brussels enterprise court for an injunction restraining the distributor from pursuing those proceedings, on the basis that they violate the arbitration agreement. Because the target proceedings are outside the EU, the Brussels I Recast constraint does not apply. The applicant';s prospects are materially stronger than they would be in an intra-EU scenario.

A second scenario involves a joint venture dispute between two EU-based parties. One party, dissatisfied with the pace of Belgian proceedings, files parallel claims in a non-EU arbitral seat, arguing that a separate agreement confers jurisdiction there. The Belgian party can seek an injunction from the Belgian court restraining the parallel arbitration, arguing that the Belgian proceedings have priority and that the second filing is an abuse of process. This scenario is more complex and the outcome less predictable, but Belgian courts have shown willingness to engage with such arguments where the evidence of forum shopping is clear.

Many underestimate the importance of speed. The value of an anti-suit injunction declines rapidly once the foreign proceedings advance. A foreign court that has invested significant resources in a case is less likely to stay its proceedings voluntarily, and the practical leverage of the Belgian order diminishes. Filing promptly - ideally before the foreign court has held any substantive hearing - is critical.

If you are managing a cross-border dispute with a Belgian dimension and need to assess whether injunctive relief is viable, contact info@vlolawfirm.com. We can help structure the setup correctly the first time.

Obtaining an anti-suit injunction from a Belgian court is only half the challenge. Enforcing it against a recalcitrant respondent requires a separate analysis.

Within Belgium, enforcement is straightforward. The order can be backed by a dwangsom - a periodic financial penalty for non-compliance, equivalent to the astreinte in French law. The dwangsom is set by the court at the time of the order and accrues automatically for each day or act of non-compliance. Belgian courts have discretion over the amount, and in significant commercial disputes the daily penalty can be set at a level that creates genuine financial pressure.

Outside Belgium, the picture is more complicated. A Belgian anti-suit injunction is a judgment of a Belgian court. Its recognition and enforcement in another EU member state is governed by the Brussels I Recast, but enforcement of an injunction ordering a party not to litigate raises its own doctrinal difficulties - particularly if the target state';s courts view the order as an affront to their own jurisdiction. In practice, the primary enforcement mechanism remains the dwangsom, which can be enforced against assets the respondent holds in Belgium or in other jurisdictions where Belgian judgments are recognised.

In non-EU jurisdictions, enforcement depends entirely on the bilateral or multilateral treaty framework and the domestic law of the target state. Some common law jurisdictions are receptive to foreign injunctive orders; others are not. A non-obvious requirement is that the applicant should assess the respondent';s asset footprint at the outset: an injunction against a party with no Belgian assets and no presence in a treaty partner state may be symbolically useful but practically toothless.

The interaction with arbitration adds another layer. Where the Belgian court';s injunction is directed at protecting an arbitration agreement, the arbitral tribunal itself may issue parallel relief - for example, an order that the respondent';s claims in the foreign court be treated as a breach of the arbitration agreement, with consequences for the merits or costs. Coordinating Belgian court proceedings with arbitral proceedings requires careful sequencing and consistent legal positions across both forums.

The strongest foundation for an anti-suit injunction is a well-drafted dispute resolution clause. Belgian courts are more willing to grant relief where the contractual basis is unambiguous. Clauses that are exclusive, clearly scoped, and free of internal contradictions give the applicant a materially stronger prima facie case.

Key drafting considerations include the following.

• Exclusivity: the clause should state explicitly that the chosen forum is exclusive and that the parties waive the right to commence proceedings elsewhere.
• Scope: the clause should cover all disputes "arising out of or in connection with" the agreement, not merely disputes "under" it, to capture tortious and pre-contractual claims.
• Governing law: Belgian courts apply the Rome I Regulation (Regulation (EC) No 593/2008) to determine the law governing the contract. A clear governing law clause reduces satellite arguments about which law determines the validity and scope of the jurisdiction clause.
• Arbitration seat: where arbitration is chosen, designating a seat in Belgium or in a jurisdiction with a strong pro-arbitration judiciary strengthens the platform for injunctive relief.

A common mistake made by foreign founders is treating the dispute resolution clause as boilerplate. In cross-border transactions involving Belgian parties or Belgian-law contracts, the clause deserves the same attention as the commercial terms. A poorly drafted clause can render an anti-suit injunction application futile even where the underlying facts strongly favour the applicant.

Pre-litigation planning should also include an assessment of which Belgian court has jurisdiction over the injunction application itself. The rules on international jurisdiction for interim measures are found in Article 35 of the Brussels I Recast, which allows a party to seek provisional measures from a member state court even if that court does not have jurisdiction over the merits. This provision can be used strategically to anchor Belgian jurisdiction for the injunction even where the main proceedings are elsewhere.

What happens if the foreign court ignores the Belgian anti-suit injunction?

A foreign court is not bound by a Belgian injunction and may choose to continue its proceedings regardless. The Belgian order operates against the party, not the court. If the respondent continues the foreign proceedings in defiance of the Belgian order, the dwangsom accrues and the applicant can enforce it against the respondent';s Belgian assets. The applicant may also bring contempt-equivalent proceedings before the Belgian court. In practice, the financial pressure of an accruing dwangsom, combined with the reputational and legal risk of defying a court order, is often sufficient to induce compliance or at least to bring the respondent to the negotiating table. The applicant should not assume, however, that the foreign court will stay its proceedings out of comity; active coordination between Belgian counsel and local counsel in the foreign jurisdiction is essential.

How long does it take to obtain an anti-suit injunction in Belgium, and what does it cost?

Through the kort geding procedure, a hearing can typically be scheduled within one to three weeks of filing, depending on the court';s calendar and the urgency demonstrated. The order itself usually follows within days to a few weeks of the hearing. Total elapsed time from filing to order is commonly four to eight weeks in straightforward cases. Professional fees for a contested kort geding application in a significant commercial dispute generally start from the low thousands of EUR and can rise substantially depending on complexity, the number of hearings, and whether the matter involves parallel proceedings. State court fees in Belgium are modest by international standards. The applicant should also budget for the costs of serving the respondent, translating documents where required, and coordinating with foreign counsel if the target proceedings are in another jurisdiction.

Is arbitration a better alternative to Belgian court proceedings for cross-border disputes?

Arbitration and Belgian court litigation serve different functions and are not straightforwardly substitutable. Arbitration offers confidentiality, a neutral forum, and an award enforceable under the New York Convention in over 170 states - a significant advantage for enforcement against assets in multiple jurisdictions. Belgian court proceedings offer speed, the coercive power of the dwangsom, and the ability to obtain interim measures quickly through the kort geding procedure. For many international businesses, the optimal structure combines both: an arbitration clause for the merits, with Belgian courts designated as the supervisory court and as the forum for interim measures. This structure allows the party to seek an anti-suit injunction from the Belgian court to protect the arbitration agreement while the arbitral tribunal constitutes itself and considers its own jurisdiction. The choice depends on the nature of the relationship, the likely disputes, and the asset profile of the counterparty.

Anti-suit injunctions in Belgium are a powerful but carefully bounded litigation tool. Their effectiveness depends on the EU law framework, the quality of the underlying dispute resolution clause, and the speed with which the applicant acts. Foreign businesses that plan ahead - drafting robust clauses, understanding the kort geding procedure, and mapping the respondent';s asset footprint - are best positioned to use this remedy effectively.

VLO Law Firms advises international clients on litigation matters in Belgium. We can assist with anti-suit injunction applications, kort geding proceedings, dispute resolution clause drafting, and coordination with foreign counsel. To request a consultation, contact: info@vlolawfirm.com