BELGIUM Law and Practice Contributed by: André Kegels, Kegels Advocaten
4.9 Releasing an Arrested Vessel Once arrested, the vessel can only be released by agreement between the parties or by court order. A court order ordering release usually means that the case was brought in court again, all parties to the conflict were heard and the judge ordered the release. Arrest proceedings do not initiate the case on the merits itself. Separate proceedings in Belgium or elsewhere must be initiated to that effect. The security must be issued by a first-class bank within the jurisdiction for the arrestor to be obliged to release the vessel from arrest or by a payment in court (via the State’s Depository institution). Parties may agree on an alternative. Any such alternative cannot be imposed on the arrestor. The security is to guarantee the in personam claim. If that person is not the owner, the claim against that other person is to be secured. If the claim is against the charterer, the security is to guarantee that claim. 4.10 Procedure for the Judicial Sale of Arrested Ships The procedure for the public sale of a vessel is a two or three-step judicial process: • arrest of the vessel; • first public auction with provisional adjudica - tion; and • second public auction if there is a higher bid within 15 days of the provisional adjudica - tion (recent statutory changes are resulting in some people doubting that a second public auction is still a possibility).
• certain – ie, it must be a prima facie good claim; • due – ie, it is payable immediately; and • quantifiable – ie, the amount must be quantifi - able. Second, conditions in respect of the situation of the debtor (charterer) must be assessed. There must be urgency to secure the claim – eg, a debtor must be in financial difficulties. 4.7 Sister-Ship Arrest Ships are “sisters” if they belong to the same physical or legal person and can be arrested if someone has a maritime claim against that per - son. The same beneficial ownership of ships does not make them sister ships in the legal meaning and such beneficial ownership does not, on its own, allow an arrest. In “alter ego” situations (the arrest of the assets of one for claims against another), it is necessary either to pierce the corporate veil, to prove collu - sion or to establish fraud. Belgian case law has arrived at such findings by applying standards that are similar to the “alter ego” relationship findings in US case law. 4.8 Other Ways of Obtaining Attachment Orders Apart from ship arrests, all other assets of the debtor can be arrested/attached, including mov - able assets (bunkers), freight, bank accounts, etc. For the conditions necessary to be allowed to proceed with such an arrest or attachment, see 4.6 Arresting Bunkers and Freight .
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