On 28 February 2019, the Council of State (Raad van State/Conseil d'État) issued an opinion on the amendment to the bill for the creation of the Brussels International Business Court (the "BIBC") put forward by a member of parliament on 18 December 2018 (See Van Bael & Bellis on Belgian Business Law, Volume 2018, No. 12, pp. 14-15, available at www.vbb.com). The amendment in question provided that judgments of the BIBC would not be subject to review by the Supreme Court (Hof van Cassatie/Cour de Cassation).
The proposed change was justified primarily on the grounds that the future cases before the BIBC would require the judges in the BIBC to apply and interpret foreign laws. However, given that the Supreme Court is not in a position to interpret such foreign laws, the amendment sought to remove the possibility of review by the Supreme Court. It was also argued that such a review mechanism would be counterproductive, considering that the creation of the BIBC seeks to accelerate proceedings. Furthermore, it was pointed out that translation issues were likely to arise, since the working language of the BIBC would be English, while the working languages of the Supreme Court are Dutch and French.
Nevertheless, the Council of State rejected the proposed amendment.
First, the Council of State noted that BIBC judgments would not be subject to appeal before a Court of Appeal and that this impossibility to appeal judgments handed down by the BIBC was precisely justified on the grounds that such judgments would still be subject to review by the Supreme Court as a safeguard of last resort.
Second, the Council of State underlined that third parties which may not necessarily have contractually agreed to litigate before the BIBC may still be forced to appear before the BIBC. As a result, the Supreme Court's review constitutes an important safeguard vis-à-vis third parties.
Third, the Council of State insisted that exceptions to the Supreme Court's jurisdiction should remain exceptional. By contrast, the proposed amendment would subtract all decisions of the BIBC – which remains part of the Belgian judicial order – from the Supreme Court's jurisdiction.
Finally, the BIBC's competence to determine large-scale international business disputes does not, as such, exclude the applicability of Belgian substantive and/or procedural law. As a result of the amendment, the Supreme Court would be prevented from guaranteeing the uniform interpretation of Belgian law.
The Council of State thus rejected all possible grounds for the proposed amendment and concluded that it could envisage no other reason for exempting judgments of the BIBC from the Supreme Court's jurisdiction.
The Bill for the creation of the BIBC is scheduled for a vote in the plenary session of the Chamber of Representatives on 24 April 2019
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