BELGIUM Law and Practice Contributed by: Pierre E. Berger and Marc Van de Looverbosch, DLA Piper UK LLP (Brussels)
from being concluded or performed through software code. Under Belgian law, most contracts are consensual and can be concluded without formalities, subject to statutory exceptions. A smart contract can therefore form part or all of a binding contract where the parties have valid consent, legal capacity, a lawful and suf- ficiently determined object and a lawful cause, and where any applicable form requirements are met. If the arrangement involves consumers, financial ser- vices, credit, insurance, securities, e-money, pay- ment services or crypto-asset services, mandatory information, conduct and consumer protection rules may impose additional requirements that cannot be avoided through code. The main practical issue is not abstract enforceability but interpretation and evidence. Parties should spec- ify whether the code is the contract, a performance mechanism for a separate natural-language contract, or both. They should also address: • governance; • upgrades; • bugs; • oracle failure; • forks; • reversal or suspension rights; • applicable law; • jurisdiction; • liability; • force majeure; • audit rights; and • remedies. Where a smart contract operates automatically but produces an unlawful or unintended result, ordinary doctrines such as mistake, fraud, illegality, unfair terms, abuse of rights and tort liability may still be relevant. 1.1.5 Industry and Trade Bodies There is no Belgian self-regulatory organisation that performs a formal regulatory or quasi-regulatory role for blockchain businesses. Supervision remains with the competent public authorities, principally the FSMA and the NBB where financial regulation is engaged.
Several industry and public-sector initiatives are nevertheless relevant. Blockchain4Belgium aims to strengthen Belgium’s blockchain and Web3 ecosys- tem, promote education, identify public-sector use cases and facilitate dialogue on legal and tax issues. EBSI4BE has acted as a Belgian hub for knowledge and public-sector work around the European Block- chain Services Infrastructure. Beltug’s digital inno- vation work and regional blockchain communities, including Walloon initiatives, also provide forums for exchange between technology providers, companies and public bodies. Their role is therefore primarily advocacy, education, networking, policy dialogue and project development. They do not replace licensing, authorisation, notifica- tion or supervisory requirements. 1.2 Crypto-Assets 1.2.1 Property Considerations Belgian law has no dedicated statutory property regime for native crypto-assets. If Belgian law applies, crypto-assets are generally analysed through the ordi- nary rules on movable intangible assets, contract, evi- dence and insolvency. That analysis is fact-sensitive because different tokens may represent different rights:
• a native crypto-asset; • a contractual claim; • an e-money token; • an asset-referenced token; • a financial instrument;
• a unit in a fund; • a utility right; or • a record of title to an off-chain asset.
For a sale of a movable asset under Belgian law, own- ership generally transfers by consent once the asset and price are sufficiently determined, unless the par- ties agree to postpone transfer. For fungible crypto- assets, the practical difficulty is identifying the spe- cific assets being sold. If the seller agrees to sell ten bitcoins out of a larger pool, the assets may only be sufficiently identified once the on-chain transfer, wallet allocation or other agreed identification mechanism occurs. If the parties sell all assets linked to a speci- fied wallet or address, the identification issue may be
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