Do your forum clauses really take the reformed judicial landscape into account?

Do your forum clauses really take the reformed judicial landscape into account?

One frequently-encountered clause in contracts and general conditions is the forum clause, in which the parties define what court is (territorially) competent to rule on potential disputes.

It is important to know that the reform of the judicial landscape, which (amongst other things) has reduced the number of districts and introduced the concept of departments1, can have an impact on the effectiveness of such clauses.

For example, the current Commercial Court of Antwerp is composed of the departments of Antwerp, Mechelen, Turnhout, Tongeren and Hasselt. A mere reference to "the courts of Antwerp" in a forum clause therefore might not prevent some department other than the Antwerp department from declaring itself competent to hear a case or, on the contrary, prevent the Antwerp department from passing a case on to some other department. This can even be the case when the forum clause that designates the courts of Antwerp dates from before the reform. Although, in our view, this gives very short shrift to the intentions of the parties - after all, such a forum clause indicates that the parties wanted to give jurisdiction to the (current) Antwerp department – there have already been several decisions in this sense.

Therefore, in order to avoid needless discussions, it is recommended that the forum clauses in your contracts and general conditions be adapted to the new reality of the current judicial landscape. However, this can be less evident than it might appear at first sight. For example, the departments of the commercial courts and the courts of first instance do not fully coincide. Moreover, because of specialisation, it is possible that certain types of cases are only dealt with by a particular department of a court.

The adaptation must therefore always be done with the necessary care so as to achieve the desired results. 

1 see also:  http://www.schoups.be/en/nieuws/5270?subid=0#sixth-constitutional-reform-will-be-transforming-judicial-organisation-as-well-updat

For more information on this specific subject, please contact Geert De Buyzer and Wout De Cock (the authors).