BELGIUM Law and Practice Contributed by: André Kegels, Kegels Advocaten
jurisdictions. This often results in Belgian borrowers having to find lenders elsewhere in Europe. For larger borrowings, such as by holdings with assets in different countries, borrowers may appeal to alter - native finance providers such as foreign administrative agents, acting for institutional investors. This would then result in credit facilities that are asset-backed finance operations where not only the floating assets are pledged via mortgage or hypotheque , but also the receivables of – and even the shares in – the corpora - tions owning the floating assets. 2.2 Ship Leasing Leasing is a dangerous term because it can mean something completely different depending on the jurisdiction or type of “leasing”. In Belgium, an opera - tional lease is not a financial lease or “rent-buy” agree - ment and is certainly not renting. The type of financing for sea-going vessels is deter - mined by the required tax outcome. The tonnage tax or accelerated depreciation provisions as referred to in 8. Ship-Owners’ Income Tax Relief are taken into account. The financing of interior barges via a rent-buy (a type of financial lease) needs to take some protective provi - sions in statute law into account. 3. Marine Casualties and Owners’ Liability 3.1 International Conventions: Pollution and Wreck Removal Pollution The main applicable international conventions and rel - evant laws that will impact upon the liability of owners and interested parties in the event of pollution and wreck removal are as follows (however, please note that this list is not exhaustive): • the NBMC, which also implements various inter - national treaties and EU directives, and contains criminal liability provisions, reverses the burden of proof, and authorises authorities to arrest vessels
that are not in compliance, as well as providing for substantial fines and incarceration; • to some extent, the Flemish Shipping Decree of 21 January 2022; • the International Convention Relating to Interven - tion on the High Seas in Cases of Oil Pollution Casualties, 29 November 1969, and Protocol to the Convention, 2 November 1973 (the “Intervention Convention”); • the International Convention for the Prevention of Pollution of the Sea by Oil, 12 May 1954 as amended (OILPOL); • the International Convention for the Prevention of Pollution from Ships, 2 November 1973, and the Protocol to the Convention, 17 February 1978 (MARPOL 73/78); • the 1982 United Nations Convention on the Law of the Sea, 10 December 1982 (the “Montego Bay Convention”, or UNCLOS); • the 1992 Protocol to the International Conven - tion on Civil Liability for Oil Pollution Damage, 27 November 1992, as amended in 2000 (the CLC 1992); • the 1992 Protocol to the International Conven - tion on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 27 November 1992, as amended in 2000 (the “1992 Fund Convention”); • the International Convention on Civil Liability for Bunker Oil Pollution Damage, London, 3 March 2001 (the “2001 Bunker Oil Convention”); • the 2003 Protocol Establishing a Supplementary Fund (the “2003 Supplementary Fund”); • EU Directive 2005/35, O.J. L255/11, 30 September 2005, as amended, which has been implemented into Belgian law by various acts; • the Belgian Statute of 20 January 1999 on the protection of the marine environment in the sea areas under Belgian jurisdiction, as amended (the “Marine Protection Act”) – this statute implements various international treaties and EU directives, and contains criminal liability provisions, reverses the burden of proof and authorises authorities to intervene in the case of incidents threatening the (marine or any other) environment, and it provides for substantial fines and incarceration; • various legal instruments, enacted by the Federal State and the regions, each within their authority
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