In a judgment dated 27 April 2017, the Belgian Constitutional Court (the Constitutional Court) largely confirmed the validity of the Belgian legal provision on State immunity from execution (Article 1412quinquies of the Belgian Judicial Code).
As a general rule, Article 1412quinquies of the Belgian Judicial Code provides that assets located in Belgium that belong to a foreign State are immune from execution and cannot be subject to enforcement proceedings by creditors. As mentioned before, France recently adopted a similar provision which largely mirrors Article 1412quinquies of the Belgian Judicial Code.
Exceptions to that rule are, however, possible if very strict conditions are met: a party wishing to seize the assets belonging to a State needs to obtain a prior authorisation from a judge (juge des saisies). This judge will only authorise the seizure if (i) the foreign State has “expressively” and “specifically” consented to the seizure of the assets; (ii) the foreign State has specifically allocated those assets to the enforcement of the claim which gives rise to the seizure; and (iii) the assets are located in Belgium and are allocated to an economic or commercial activity.
Given the difficulty of meeting those requirements, two entities (NML Capital Limited (NML), an American hedge fund which holds debts securities against Argentina, and Yukos Universal Limited (YUL), an entity that had been granted a multi-billion arbitral award against Russia) initiated legal proceedings before the Constitutional Court seeking the annulment of Article 1412quinquies of the Belgian Judicial Code.READ MORE
