Forum Non Conveniens Defence in Belgium

Forum non conveniens defence in Belgium operates within a tightly regulated framework that differs markedly from common law systems. Belgian courts are bound primarily by EU Regulation Brussels I Recast and the Belgian Code of Private International Law, both of which constrain a court';s discretion to decline jurisdiction on convenience grounds. Understanding this framework is essential for any business or counsel considering whether to challenge or defend jurisdiction in Belgian proceedings.

This guide covers the doctrinal basis of forum non conveniens in Belgium, the procedural steps for raising a jurisdictional challenge, the interaction with EU rules, practical scenarios where the defence may succeed or fail, enforcement considerations, and the most common mistakes made by foreign parties unfamiliar with Belgian litigation.

Forum non conveniens is a doctrine that allows a court to decline jurisdiction when another forum is clearly more appropriate. In common law systems such as England or the United States, courts exercise broad discretion to stay or dismiss proceedings on this basis. Belgium, as a civil law jurisdiction, takes a fundamentally different approach.

Belgian courts do not apply forum non conveniens as a freestanding equitable doctrine. Instead, the concept is absorbed into a more structured framework of jurisdictional rules. The primary source of law for cross-border civil and commercial matters within the EU is Regulation (EU) No 1215/2012, commonly known as Brussels I Recast. This regulation establishes mandatory jurisdiction rules and leaves very limited room for courts to decline jurisdiction once it is properly established.

For matters falling outside the EU framework - such as disputes involving defendants domiciled in third countries - the Belgian Code of Private International Law (CPIL), enacted by the Law of 16 July 2004, applies. Article 9 of the CPIL contains an exceptional jurisdiction provision that allows Belgian courts to decline jurisdiction if they determine that Belgian courts are manifestly not the appropriate forum and that the dispute has a sufficient connection to a foreign jurisdiction. This provision is the closest Belgian law comes to a formal forum non conveniens rule.

In practice, the threshold under Article 9 CPIL is high. The word "manifestly" signals that a mere preference for another forum is insufficient. The party seeking dismissal must demonstrate a clear and significant imbalance between the Belgian connection and the foreign connection to the dispute.

Brussels I Recast governs jurisdiction in civil and commercial matters between EU member states. Under this regulation, a defendant domiciled in an EU member state must generally be sued in the courts of that member state. The regulation also provides specific jurisdiction rules for contract, tort, consumer and employment disputes, as well as exclusive jurisdiction rules for matters such as immovable property and registered intellectual property rights.

Critically, Brussels I Recast does not permit a court to decline jurisdiction on forum non conveniens grounds when jurisdiction is properly established under the regulation. The Court of Justice of the European Union confirmed this position in the Owusu v Jackson case, ruling that a court of an EU member state cannot stay proceedings in favour of a non-EU court on forum non conveniens grounds, even when the alternative forum appears more appropriate. This ruling has direct effect in Belgium and significantly limits the scope of the defence in EU-connected disputes.

There are, however, narrow exceptions. Article 33 and Article 34 of Brussels I Recast allow a court to stay proceedings where related or identical proceedings are already pending before a court of a third country, provided certain conditions are met. These provisions are not a full forum non conveniens power, but they offer a procedural tool that can achieve a similar result in specific circumstances. The stay is discretionary, and the court must weigh factors including the risk of irreconcilable judgments, the stage of the foreign proceedings, and whether the foreign court is expected to deliver a judgment recognisable in Belgium.

A common mistake made by foreign defendants is to assume that because their home jurisdiction is more convenient, Belgian courts will defer. Under Brussels I Recast, convenience is not a recognised ground for declining jurisdiction. The defendant must identify a specific procedural basis - such as a valid exclusive jurisdiction clause, a lis pendens situation, or an Article 33/34 third-country stay - rather than relying on a general inconvenience argument.

When Brussels I Recast does not apply - typically because the defendant is domiciled outside the EU or the subject matter falls outside the regulation';s scope - Belgian courts apply the CPIL. Article 9 CPIL provides the primary mechanism for challenging jurisdiction on forum non conveniens-adjacent grounds.

To invoke Article 9 CPIL successfully, the challenging party must establish three elements. First, Belgian courts must have jurisdiction under the CPIL';s own rules - the article operates as a discretionary exception to established jurisdiction, not as a denial of jurisdiction that never existed. Second, the dispute must have a sufficient connection to a foreign jurisdiction. Third, the Belgian connection must be manifestly insufficient compared to the foreign connection.

The challenge must be raised at the earliest opportunity in the proceedings. Under Belgian civil procedure, jurisdictional objections are typically raised as preliminary defences (exceptions d';incompétence) before any defence on the merits. Raising the objection late - particularly after engaging substantively with the merits - risks waiver. Belgian courts are strict about procedural sequencing, and a party that files a substantive defence before raising a jurisdictional challenge may be treated as having submitted to jurisdiction.

The competent court for first-instance civil and commercial matters in Belgium is generally the Tribunal de l';Entreprise (Enterprise Court) for commercial disputes, or the Tribunal de Première Instance (Court of First Instance) for other civil matters. Jurisdictional challenges are heard by the same court, which rules on its own competence before proceeding to the merits.

Practical tip: the challenging party should file a detailed written submission addressing each element of Article 9 CPIL, supported by evidence of the foreign connection. Bare assertions of inconvenience will not suffice. Evidence might include the location of witnesses, the governing law of the contract, the place of performance, and the location of relevant assets.

Understanding when Belgian courts are likely to grant or deny a forum non conveniens-style challenge requires examining the case law and the underlying policy considerations.

Scenario one: international commercial contract with a non-EU counterparty. A Belgian company sues a US-based supplier in the Brussels Enterprise Court. The contract was negotiated and performed entirely in the United States, governed by New York law, and contains no jurisdiction clause. The US defendant raises an Article 9 CPIL challenge, arguing that Belgian courts are manifestly not the appropriate forum. In this scenario, the challenge has reasonable prospects. The Belgian connection is limited to the plaintiff';s domicile, while the substantive connections - place of performance, governing law, witnesses, documents - all point to the United States. Belgian courts have shown willingness to stay or decline jurisdiction in such cases, provided the foreign court is available and the plaintiff';s interests are not unduly prejudiced.

Scenario two: EU defendant, Brussels I Recast applies. A German company is sued in Belgium for breach of a distribution agreement. The defendant argues that German courts are more convenient because the contract was performed in Germany. Under Brussels I Recast, this argument fails. The plaintiff may rely on Article 7(1) to sue in Belgium as the place of delivery, or on the defendant';s domicile in Germany. The defendant cannot invoke forum non conveniens to override these rules. The only available challenge would be a valid exclusive jurisdiction clause designating German courts under Article 25 of the regulation.

Scenario three: parallel proceedings in a third country. A Belgian subsidiary is sued in Belgium while the parent company faces related proceedings in Singapore covering substantially the same facts. The Belgian defendant applies for a stay under Article 34 Brussels I Recast, arguing that the Singapore proceedings were commenced first and that a Belgian judgment would risk conflicting with the Singapore outcome. The court must assess whether the Singapore court is expected to give a judgment recognisable in Belgium, whether the Belgian and Singapore proceedings involve the same cause of action and parties, and whether a stay serves the interests of justice. This is a nuanced analysis, and outcomes vary depending on the degree of overlap between the proceedings.

In practice, founders and corporate counsel should consider the jurisdictional architecture before signing contracts. A well-drafted exclusive jurisdiction clause designating a specific court - whether in Belgium or abroad - provides far greater certainty than relying on post-dispute forum challenges.

If you are navigating a complex jurisdictional dispute in Belgium, we can help structure the defence correctly the first time. Contact us at info@vlolawfirm.com.

Forum non conveniens challenges in Belgium frequently arise alongside questions about the validity and enforceability of arbitration clauses or exclusive jurisdiction agreements. These instruments, when properly drafted, can effectively pre-empt jurisdictional disputes.

Under Article 25 of Brussels I Recast, an exclusive jurisdiction clause designating the courts of an EU member state is binding on the parties and overrides the general jurisdiction rules of the regulation. Belgian courts will decline jurisdiction in favour of the designated court, provided the clause meets the formal requirements of Article 25 - namely, that it is in writing or evidenced in writing, or in a form that accords with practices established between the parties or in international trade.

Arbitration clauses operate differently. Brussels I Recast expressly excludes arbitration from its scope. Where a valid arbitration clause exists, a Belgian court will typically refer the parties to arbitration under Article 1679 of the Belgian Judicial Code, which implements the UNCITRAL Model Law principles into Belgian domestic procedure. The court does not apply forum non conveniens in this context; it simply declines jurisdiction in favour of the arbitral tribunal.

A non-obvious requirement is that the party seeking to enforce an arbitration clause must raise the objection before making any substantive submissions. Belgian courts have held that a party who participates in court proceedings on the merits without raising the arbitration clause may be treated as having waived the right to arbitrate. This is a significant procedural trap for foreign parties unfamiliar with Belgian civil procedure.

The interaction between forum non conveniens and anti-suit injunctions is also relevant. Belgian courts, as EU courts, cannot issue anti-suit injunctions restraining proceedings in other EU member states - this was confirmed by the CJEU in Turner v Grovit and West Tankers. However, Belgian courts may in principle issue injunctions restraining proceedings in non-EU courts, though this power is exercised with considerable restraint and is not equivalent to a forum non conveniens dismissal.

The forum non conveniens analysis does not end with the jurisdictional challenge. Parties must also consider whether a judgment obtained in the alternative forum will be enforceable in Belgium, and whether a Belgian judgment will be enforceable in the foreign jurisdiction.

Within the EU, enforcement of judgments between member states is governed by Brussels I Recast, which provides for near-automatic recognition and enforcement without a review of the merits. A judgment from a French or German court, for example, is enforceable in Belgium through a streamlined procedure before the competent Belgian court.

For judgments from non-EU countries, enforcement in Belgium is governed by Articles 22 to 25 of the CPIL. A foreign judgment will be recognised and enforced in Belgium if it meets several conditions: the foreign court had jurisdiction under internationally recognised rules, the judgment is final and enforceable in the country of origin, it does not conflict with Belgian public policy (ordre public), and the proceedings in the foreign court complied with fundamental procedural guarantees. Belgian courts do not review the merits of the foreign judgment but will refuse enforcement if these conditions are not satisfied.

This enforcement framework has direct implications for forum non conveniens strategy. If a party successfully persuades a Belgian court to decline jurisdiction in favour of a foreign court, it must be confident that the resulting foreign judgment will ultimately be enforceable in Belgium - particularly if the defendant';s assets are located in Belgium. A pyrrhic victory in the jurisdictional challenge, followed by an unenforceable foreign judgment, serves no practical purpose.

Many underestimate the importance of mapping the enforcement chain before committing to a forum non conveniens strategy. The analysis should include: where the defendant';s assets are located, which enforcement regime applies to those assets, and whether the chosen alternative forum';s judgments are routinely recognised in Belgium.

For assistance with enforcement strategy and cross-border litigation planning in Belgium, contact our team at info@vlolawfirm.com.

What is the main difference between forum non conveniens in Belgium and in common law countries?

In common law jurisdictions such as England and the United States, forum non conveniens is a broad equitable doctrine giving courts wide discretion to stay or dismiss proceedings in favour of a more appropriate foreign forum. Belgian courts, as a civil law jurisdiction, do not apply this doctrine in its common law form. Within the EU framework, Brussels I Recast prohibits Belgian courts from declining jurisdiction on convenience grounds once jurisdiction is properly established. Outside the EU framework, Article 9 of the Belgian CPIL provides a narrow exception, but only where the Belgian connection is manifestly insufficient compared to the foreign connection. The threshold is considerably higher than in common law systems, and the analysis is more structured and less discretionary.

How long does a jurisdictional challenge typically take in Belgian courts, and what are the approximate costs?

A preliminary jurisdictional challenge in Belgian courts typically takes several months to resolve at first instance, depending on the court';s docket and the complexity of the arguments. If the decision is appealed, the process can extend to a year or more. Costs depend on the complexity of the matter and the level of court involved. Legal fees for a contested jurisdictional challenge before the Brussels Enterprise Court or Court of First Instance generally start from the low thousands of EUR for straightforward matters and can rise significantly for complex international disputes involving multiple jurisdictions. Court filing fees are modest by international standards. Parties should budget for translation costs if documents are in languages other than French, Dutch or German, as Belgian courts require submissions in the official language of the judicial district.

Should a foreign company proactively include a jurisdiction clause in contracts with Belgian counterparties to avoid forum non conveniens disputes?

A well-drafted exclusive jurisdiction clause is the most reliable way to avoid jurisdictional uncertainty when dealing with Belgian counterparties. Under Article 25 of Brussels I Recast, an exclusive jurisdiction clause designating a specific EU member state court is binding and will be enforced by Belgian courts. If the clause designates a non-EU court, its enforceability in Belgium is assessed under the CPIL, and the outcome is less certain. Arbitration clauses offer an alternative that sidesteps the Brussels I Recast framework entirely, as arbitration is excluded from the regulation';s scope. In practice, the choice between a jurisdiction clause and an arbitration clause depends on factors including the nature of the dispute, the location of assets, and the enforceability of awards in the relevant jurisdictions. Taking legal advice at the contract drafting stage is considerably less costly than litigating jurisdiction after a dispute arises.

Forum non conveniens defence in Belgium is a technically demanding area shaped by the interplay between EU regulation and domestic private international law. The doctrine operates within strict limits, particularly for EU-connected disputes where Brussels I Recast leaves little room for convenience-based challenges. Outside the EU framework, Article 9 CPIL offers a narrow but real avenue for jurisdictional challenges, provided the Belgian connection is manifestly insufficient. Procedural discipline - raising the challenge early, supporting it with evidence, and mapping the enforcement chain - is essential to a successful outcome.

VLO Law Firms advises international clients on litigation matters in Belgium. We can assist with jurisdictional challenges, forum non conveniens strategy, arbitration clause enforcement, and cross-border enforcement of judgments. To request a consultation, contact: info@vlolawfirm.com