BELGIUM Law and Practice Contributed by: Dominique Blommaert, Didier Bracke and Jens Benoot, Janson
2.7 Time Limit for Obtaining Third-Party Funding Given that third-party funding is not regulated in Belgium, there are no time limits for obtaining or disclosing third-party funding. However, it is advisable to disclose the existence of third-party funding and the identity of the funder to avoid potential conflicts of interest. This is especially the case in arbitration, where disclosure of third- party funding is often governed by arbitration rules. Pre-action conduct requirements can be imposed either by law or as agreed by the par- ties. For example: • A claim based on breach of a contractual obligation must be preceded by a formal notice or demand letter. However, this is not mandatory law, and parties can therefore agree to derogate from this default rule. • In commercial contracts, parties will often include a dispute resolution clause that mandates mandatory mediation or settlement negotiations prior to initiating legal proceed- ings. Contractual arrangements regarding pre-action conduct are enforceable. 3. Initiating a Lawsuit 3.1 Rules on Pre-action Conduct The courts can inquire as to the parties’ attempts to settle the dispute prior to the proceedings.
tice, third-party funders rarely provide funding to defendants. 2.4 Minimum and Maximum Amounts of Third-Party Funding The minimum and maximum amount a third- party funder will fund depends on a number of factors, including: • the legal merits of the case; • the quantum of the claim; • the prospects of enforcement and recovery; and • the funder’s portfolio diversification and pref- erences. 2.5 Types of Costs Considered Under Third-Party Funding Third-party funders are generally open to fund any type of costs relating to legal proceedings, including: • lawyer fees; • court fees; However, third-party funders will determine what costs can be funded on a case-by-case basis, taking into account the factors mentioned in 2.4 Minimum and Maximum Amounts of Third- Party Funding . 2.6 Contingency Fees Pursuant to Article 446 ter of the Belgian Judi- cial Code, contingency fees (“no win, no fee”, or “pactum de quota litis”) are not permitted. However, fee agreements that include a suc- cess fee payable in addition to fees that are not dependent on the outcome of the matter (fixed fees; hourly fees), are permitted. • expert fees; and • adverse cost risk.
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