Is an exclusive jurisdiction clause for British courts valid if it was concluded during the Brexit transition period?

In a ruling of 27 March 2025, the Court of Cassation put an end to the uncertainty surrounding jurisdiction clauses in Belgian-British commercial contracts. The Court confirmed that an exclusive choice of forum for the British courts, agreed during the Brexit transition period (February 1, 2020 – December 31, 2020), is fully valid and enforceable under the The Hague Convention on choice of court agreements of 2005. This means that, in such cases, a Belgian commercial agent or distributor cannot invoke the specific protection afforded by Belgian law to bring the case before a Belgian court.

The facts and legal context

The case revolved around a dispute between a Belgian distributor (the plaintiff) and a British supplier (the defendant). Both parties had signed an exclusive sales concession agreement on February 10, 2020. A crucial detail here is the date: this was just a few days after the United Kingdom had officially left the European Union (on January 31, 2020), but during the so-called ‘transition period.’.

The contract contained an exclusive jurisdiction clause (forum selection clause) that designated the courts of the United Kingdom as the only competent authority to hear disputes.

When the British supplier terminated the agreement in July 2021, the Belgian distributor nevertheless sued the supplier before the Enterpise Court in Liège (Namur division). The distributor based its case on Article X.39 of the Code of Economic Law (CEL). This article generally offers Belgian concession holders special protection: upon termination of a sales concession that has consequences in Belgium, the concession holder can, in principle, always sue the concession grantor in Belgium, and Belgian law applies.

However, the British supplier contested the jurisdiction, arguing that the Belgian court had no jurisdiction given the exclusive choice of forum for the British courts in the contract.

The decision of the Court of Cassation.

Both in the first instance and on appeal, the British supplier was successful. The Belgian distributor lodged an appeal in cassation, arguing that at the time the contract was concluded (February 10, 2020), the United Kingdom was no longer a member state of the EU, nor was it yet an independent party to the 2005 Hague Convention. According to the distributor, the convention was therefore not applicable and mandatory Belgian law (Art. X.39 CEL) should take precedence.

The Court of Cassation rejected this argument in its ruling of March 27, 2025.

The Court ruled that:

1. The Hague Convention of 2005 applies to exclusive choice of court agreements in civil and commercial matters.
2. The EU has been a member of this treaty since October 1, 2015, which means that all member states (including the UK at the time) were bound by it.
3. Although the UK left the EU on February 1, 2020, the Withdrawal Agreement stipulated that EU law (including international agreements concluded by the EU) would continue to apply to the UK during the transition period (until December 31, 2020).
4. The UK then became an independent party to the Hague Convention on January 1, 2021.

The Court's conclusion is clear:

“It follows, without any reasonable doubt, that the Hague Convention of June 30, 2005, applies to the United Kingdom as a bound State through the approval of the convention by the European Union, from October 1, 2015, to December 31, 2020, and as a contracting party from January 1, 2021.” .

The jurisdiction clause was therefore valid, and pursuant to Article 6 of the Hague Convention, the Belgian court had to declare itself incompetent.

Legal analysis and interpretation

This ruling touches on the foundations of private international law and the hierarchy of norms.

Precedence of treaty law The ruling reaffirms the principle that international treaties with direct effect, such as the Hague Convention of June 30, 2005, on choice of court agreements, take precedence over national law. Even when this national law is mandatory in nature (such as the legislation on exclusive sales concessions in Title 3 of Book X of the CEL), the Belgian court must give way if a valid international treaty designates another court.

The “Gap” theory rejected There was debate in legal doctrine about a possible vacuum (a “gap”) between the moment of Brexit and the UK's independent accession to the Hague Convention. The claimant attempted to exploit this uncertainty by arguing that during the transition period, the UK was in a legal no man's land with regard to this convention. However, the Court of Cassation agreed with the interpretation that the Withdrawal Agreement seamlessly guaranteed the continuity of international obligations. During the transition period, the UK was treated as if it were a Member State for the purposes of EU-related international treaties.

Consequences for the protection of the distributor This is an important signal for Belgian legal practice. The protection afforded by Article X.39 CEL is often regarded as an impregnable fortress by Belgian distributors. This ruling shows that a well-drafted clause in an international context can completely override this protection, provided that the conditions of the Hague Convention are met (exclusive choice, civil/commercial matter, agreed in writing).

What this means for your company in concrete terms

For Belgian distributors and commercial agents: Be extremely vigilant when signing contracts with British (or other non-EU) partners. If you agree to a clause that declares the courts of the United Kingdom to have jurisdiction, you may be waiving your right to litigate in Belgium. This could mean that in the event of a dispute, you will have to litigate in the UK, which is often more expensive and where you will not enjoy the specific protection of Belgian severance pay provisions.

For foreign suppliers (Principals): This ruling confirms that your forum selection clauses are valid in Belgian courts, even if they were signed during the complex Brexit period. It provides legal certainty that contractual agreements on dispute resolution will be respected, despite protective Belgian legislation.

Strategic advice: Do you have contracts dating from 2020? Have them checked. The assumption that “Brexit invalidated everything” is incorrect. The continuity of the Hague Convention ensures that forum choices from that period remain fully effective.

Frequently Asked Questions (FAQ)

As a Belgian distributor, can I always take legal action in Belgium in the event of a breach of contract?
No, not always. Although Article X.39 CEL gives you the right to sue the supplier in Belgium, this does not apply if there is a valid international treaty (such as the 2005 Hague Convention on Choice of Court Agreement or the Brussels I bis Regulation) that designates another court. International treaties take precedence over Belgian law.

What is the 2005 Hague Convention on Choice of Court Agreements?
The Hague Convention on Choice of Court Agreements is an international treaty that ensures that exclusive agreements on which court has jurisdiction are respected by the courts of the signatory countries. If you contractually agree that the court of London has jurisdiction, the Belgian court must respect that choice and declare itself incompetent.

Is a contract from 2020 with a British party subject to EU rules?
Yes, for contracts concluded during the transition period (February 1, 2020 – December 31, 2020), most EU rules and international treaties of the EU (via the Withdrawal Agreement) remained applicable to the UK. This ruling by the Court of Cassation confirms that this also applies to jurisdiction clauses.

Conclusion

In its ruling of March 27, 2025, the Court of Cassation clarified the situation: exclusive jurisdiction clauses in favor of British courts, concluded during the Brexit transition period, are valid. International treaty obligations take precedence over national protection rules for distributors. For Belgian companies, it is crucial not to view contractual clauses on dispute resolution as a formality; they can permanently block your access to the Belgian courts.