BELGIUM Law and Practice Contributed by: Dominique Blommaert, Didier Bracke, Jens Benoot and Lydie Van Muylem, Janson
The Belgian Judicial Code also provides for specific rules regarding confidentiality in matters relating to trade secrets. Pursuant to the Act of 16 October 2022, a publicly accessible database for court decisions (the “Central Registry for Judicial Decisions”) should be in place by 31 December 2023. However, the rollout of the data- base has been delayed. To preserve the parties’ privacy, the decisions pub- lished in the part of the central registry that is pub- licly accessible will be pseudonymised in accordance with Article 4, (5) GDPR. The pseudonymisation only relates to personal data of natural persons. 1.4 Legal Representation in Court Parties are entitled to appear in court in person with- out representation by a lawyer. Companies must be represented by a director with power of representa- tion. Lawyers registered with one of the Belgian bar associ- ations have rights of audience in Belgian courts. How- ever, rights of audience before the Belgian Supreme Court are restricted to a select group of lawyers with Lawyers from EU member states are allowed to prac- tise in Belgium. To do so, they can request registration on the list of EU lawyers. Lawyers on the EU list have rights of audience but only if assisted by a fully quali- fied lawyer registered on the regular list. Foreign Lawyers – Non-EU Foreign lawyers from outside the EU do not have rights of audience in Belgium. special accreditation. Foreign Lawyers – EU
To date, there is no known case law from Belgian courts regarding the legality of third-party funding. Lawyer’s Ethical Standards When instructed by a client that benefits from third- party funding, lawyers must be mindful to respect the Bar Association’s ethical standards, including: • the obligation to act solely in the client’s best inter- ests; • the obligation to act independently (and thus unin- fluenced by a third party, such as a funder); and • the obligation to uphold professional secrecy. 2.2 Third-Party Funding: Lawsuits Given the lack of a statutory framework, there are no formal restrictions regarding the type of lawsuits that can benefit from third-party funding. Nevertheless, third-party funding is not commonly used in Belgium. This is due to several reasons: • The costs of litigation are relatively low in Belgium. • The adverse cost risk is fairly limited (see 11. Costs). • The Belgian class action regime is limited in scope and less frequently used than in certain other EU jurisdictions, such as the Netherlands. In addition, the statutory provisions regulating class actions are unclear as to whether a funder would be entitled to a share in the proceeds of the case. 2.3 Third-Party Funding for Plaintiff and Defendant In theory, third-party funding is available for both the plaintiff and defendant. However, in practice, third- party funders rarely provide funding to defendants. 2.4 Minimum and Maximum Amounts of Third-Party Funding The minimum and maximum amount a third-party funder will fund depends on a number of factors, including:
2. Litigation Funding 2.1 Third-Party Litigation Funding No Statutory Framework
• the legal merits of the case; • the quantum of the claim;
Third-party funding is not regulated in Belgium. In the absence of any statutory rules or prohibition, third- party funding is generally considered to be permitted.
• the prospects of enforcement and recovery; and • the funder’s portfolio diversification and prefer- ences.
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