BELGIUM Law and Practice Contributed by: André Kegels, Kegels Advocaten
Tonnage Tax – for Towage and Dredging On the condition that 50% of revenues from towage or dredging comes from the high seas, the tonnage tax can be applied. Tonnage Tax – for Operators/Ship Managers If certain conditions and minimum thresholds are met, ship-management activities and operating services could qualify for the Belgian tonnage tax regime. 9. Implications of Non-Performance, IMO 2020, Trade Sanctions and International Conflict In general, force majeure is an insurmountable obsta - cle to the fulfilment of commitments. The doctrine of impossibility implies that there are three conditions for the existence of force majeure: the performance of an obligation has become impossible due to circum - stances that are not due to a fault of the debtor and that were unforeseeable and insurmountable for them. Force majeure will, in principle, not be accepted to avoid monetary obligations. It is essential that each party fulfils its obligations, even if their performance becomes more onerous either because the cost of performance increased or because the value of the counter-performance was reduced. COVID-19 and force majeure If an obligation must be performed (eg, transport of goods) but is made impossible by an unforeseen event (eg, a COVID-19 measure), then in some circumstanc - es and depending on the factual circumstances, this could be considered as force majeure. The Belgian courts have dealt with matters relating to the non- performance of contractual obligations (in relation to shipping contracts or any other commercial contract) due to the COVID-19 pandemic and rarely concluded that a force majeure event was present. 9.1 Force Majeure and Frustration Non-Performance and Force Majeure
Contractual Changes Due to Unduly Onerous Contract Since 2022, new statute law has provided that the debtor may ask the creditor to renegotiate the con - tract with a view to its amendment or termination, albeit only in certain circumstances. Circumstances must have changed to render the performance of the contract unduly onerous, to such an extent that its performance can no longer reasonably be demanded. Such change must have been unforeseeable at the conclusion of the contract and must not be imputable to the debtor. In addition, the debtor must not have accepted to take that risk for their account and neither the law nor the contract may exclude the possibility of renegotiation. The parties are then obliged to renegoti - ate the contract. If no agreement can be reached, the president of the competent court will decide on the fate of the contract in urgency proceedings. 9.2 Enforcement of the IMO 2020 Rule Limiting the Sulphur Content of Fuel Oil Belgium has implemented IMO 2020 (Annex VI MAR - POL), limiting the sulphur content of fuel oil used on board ships to 0.50% mass by mass (m/m), which came into force on 1 January 2020. PSC is responsi - ble for the enforcement of the sulphur content limita - tion. As the Port of Antwerp is a major place for bunkering, the new sulphur limits have led to significant litigation already. Enforcement action is actively taken against non-compliance, and infringements are penalised accordingly. Time is of the essence when being con - fronted with “off-spec” bunkers, given the often short time bars that bunker suppliers provide for in their general terms and conditions. 9.3 Trade Sanctions Belgium will in principle implement and enforce inter - national trade sanctions if imposed by UN resolutions or EU regulations. It will not implement the law of the US, the UK or any other country in respect of trade sanctions. On the contrary, if any such trade sanctions would harm Belgian interests, the authorities could take protective action. Still, the extra-territorial effect of some sanctions, such as the US Office of Foreign Assets Control Spe -
91
CHAMBERS.COM
Powered by FlippingBook