Following the Act of 19 December 2023 (published on 27 December 2023), the legislator has introduced a reconciliation procedure in the commercial and labour courts as well as in the courts of appeal.
Previous situation
The tool that Father Christmas has just added to the Belgian ADR toolbox is not new. Reconciling the parties has expressly been part of each court’s remit since 2018. Moreover, since 2019 the courts have had the duty to promote an amicable resolution of disputes at all stages of the proceedings. Simultaneously, a specific reconciliation procedure was formally introduced in the family courts by the creation of a reconciliation chamber in those tribunals. Moreover, other tribunals and courts have organised similar reconciliation chambers on their own initiative.
The legislator has now decided to extend the scope of its earlier family courts initiative and to harmonise the other courts’ initiatives.
Matters suitable for reconciliation
Physical and legal persons capable of entering into a settlement agreement may submit to conciliation proceedings matters that are susceptible to settlement. This is, generally, any dispute concerning purely material or commercial interests.
Unless Belgian law expressly provides otherwise, there is no obligation to conduct reconciliation proceedings. The parties to a dispute are free to opt for reconciliation or any other form of ADR, such as mediation.
The general reconciliation procedure
Any principal claim may, prior to being resolved by the courts, be submitted for reconciliation to the court with the jurisdiction to hear it. Following a simple request by one of the parties, the registrar will invite the parties to appear within a month at a hearing organised for that purpose.
The party application has the value of a formal notice before action and suspends prescription for a month. The appearance of the parties at the reconciliation hearing further suspends the limitation period for the duration of the reconciliation attempt.
The parties’ appearance at the reconciliation hearing is formally recorded. If a settlement is reached and unless the parties waive this, then the settlement will also be recorded in the minutes, and its issuance will be accompanied by an execution order.
If court proceedings are already pending, then the dispute may, throughout the proceedings, be submitted to the court for a reconciliation on any party’s initiative or even on the court’s initiative (unless all the parties oppose it). A settlement reached in this context may be recorded in a judgment. If the reconciliation is unsuccessful, then the court proceedings may continue on the initiative of one of the parties.
Reconciliation chambers
Following the new Act, any first instance commercial, labour and family court and court of appeal will have to organise reconciliation chambers (“kamer minnelijke schikking”/“chambre de règlement à l’amiable”). These chambers will be composed of judges who have completed special reconciliation training. Proceedings before this chamber will have specific features favouring reconciliation.
The parties can directly seize the reconciliation chambers by addressing an application to the court. Alternatively, any judge of a first instance tribunal or the court of appeal may refer any matter to the reconciliation chamber (unless all the parties oppose doing so).
The reconciliation occurs in accordance with the general procedure described above. If no settlement is reached, then the reconciliation chamber will record the failure and the parties are free to take any further action (e.g. entering a formal claim in the court). If the matter was referred to it by another chamber, then the reconciliation chamber will, in the event of failure, refer the matter back to the initially referring chamber of the court to continue the court proceedings.
The specific features of the procedure in the reconciliation chambers mainly consist of the following:
- the hearings and anything said or written in the context of the conciliation proceedings will be confidential;
- the reconciliation chamber may organise so-called caucus discussions with each of the parties separately;
- despite the fact that the parties can be assisted by counsel, they should appear in person; legal persons should be represented by a duly authorised physical person;
- a judge sitting in a case in reconciliation chambers may not participate in (subsequent) proceedings in other chambers regarding the same dispute.
Roll-out
The tribunals and courts that have established reconciliation chambers already can immediately apply the harmonised procedure. The other tribunals and courts are not obliged to establish them prior to 1 September 2025.
Perspectives
Today in Belgium, commercial litigants have little experience with reconciliation proceedings and are not used to a judge hinting at solutions for their disputes. Therefore, the parties might have to be educated in this respect.
However, the users of the family courts’ reconciliation chambers have generally given positive feedback on their experience. It makes sense to extend this to the other courts now. This additional tool in the (Alternative) Dispute Resolution toolbox will give the parties another option to efficiently settle their disputes. This can only be applauded in a jurisdiction with some serious backlog in certain courts.
Alexander Hansebout
