Clifford Chance
A new regime on abusive clauses in Belgium as from 1 December 2020 – Quo Vadis?
23 November 2020
On 1 December 2020, the new Belgian regime on abusive clauses in B2B contracts will enter into force. Pursuant to the new regime, certain clauses will automatically be presumed to be abusive, while others may be struck down if they create an imbalance between the parties. The new regime has been subject to extensive criticism as it is unclear what clauses may be considered to be abusive under the new law, and disputes as to its interpretation and application are expected in the years to come. As the regime will only apply to contracts entered into, amended or renewed from 1 December 2020, companies may therefore wish to finalise any contracts they are currently (re)negotiating before this date. While certain steps can be taken to reduce the risk of clauses in contracts entered into after that date being considered to be abusive under the new law, it remains to be tested whether this will be sufficient to avoid disputes. The COVID-19 pandemic may furthermore prompt certain parties to seek to invoke the new law to try to escape their contractual obligations.
