BELGIUM Law and Practice Contributed by: Hugo Keulers, Sandra Lodewijckx, Tine Meurs and Thomas Verheyen, Lydian
Lydian Havenlaan 86C/113b Tour&Taxis 1000 Brussels Belgium Tel: +32 2 787 90 00 Email: info@lydian.be Web: www.lydian.be
1. Key Drivers and Resolution of Insurance Disputes
rendered. Furthermore, there is still a lot of insur- ance capacity in industrial risk insurance (more than in financial lines insurance) which puts pressure on insurers to settle coverage disputes. If parties choose litigation, cases are either handled through the court system or through arbitration. Insur- ance mediation, on the other hand, is seldom applied. Belgian law does not (yet) know the concept of court- ordered or imposed mediation; it largely depends on the judge encouraging the parties to mediate, as well as the parties’ position towards mediation. Overall, mediation is not (yet) very popular or widely used, probably because many disputes are settled without the assistance of a mediator. 2. Jurisdiction and Choice of Law 2.1 Choice of Law in Insurance Contracts The provisions of the Rome I Regulation on the law applicable to contractual obligations will apply to determine the law applicable to insurance contracts. The basic principle of Rome I is that the insurance contract shall be governed by the law chosen by the parties. However, this Regulation has particular provisions to protect the interests of policyholders and insureds; it severely limits the choice of applicable law for so- called “mass risk insurance contracts”, which include consumer contracts but can also include liability or property insurance where the policyholder is a small or medium-sized company.
1.1 Common Triggers of Insurance Disputes Most Belgian insurance disputes relate to claims han- dling in the liability insurance sector. Coverage dis- putes are rare, especially in financial lines and industri- al risk insurance, because of major broker commercial pressure on insurers. 1.2 Role of Policy Wording and Drafting A recurring trend in recent years has been for Belgian courts, including the Belgian Court of Cassation (the highest court for all civil disputes, including insurance disputes), deciding in favour of the insured or policy- holder, rather than in favour of the insurer in matters where the insurance policy is not clear, or where there is discussion about the interpretation of the relevant provision in the Belgian Insurance Act. Clauses that typically give rise to contention are for- feiture clauses (forfeiting cover in case of breach of a specific obligation by the insured) and clauses related to gross negligence and intentional damage. 1.3 Dispute Resolution Strategy and Outcomes Many insurance coverage disputes are settled after negotiations between the policyholder, the broker and the insurer. The same is true for reinsurance dis- putes. Parties often prefer settlement for commercial reasons, particularly where the law is unclear and the outcomes of disputes are unpredictable. Depending on the chosen court, litigation in Belgium may take five years or more before a judgment (on appeal) is
25 I NSURANCE L I T IGATI O N 2026
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