Combating unfair clauses in a B2B context
Overview of case law five years after the adoption of the Law of 4 April 2019
In 2019, aligning with European trends, the Belgian legislator has recognised the existence of significant imbalances in bargaining powers likely to lead to unfair trading practices between undertakings (“B2B”) and the need to prohibit them or to define their consequences.
The Law of 4 April 2019 targets and prohibits among others unfair clauses (Articles VI.91/2 et seq. CEL ), unfair (aggressive and misleading) trading practices (Articles VI.104/1 et seq. CEL) and the abuse by an undertaking of the economic dependence of another undertaking (Article IV.2/1 CEL).
In this alert, we provide:
- an overview of the published Belgian case law on the legal regime combating unfair clauses in B2B contracts and
- some key takeaways drawn from the reviewed case law. In the five years that followed the adoption of the Law of 4 April 2019, case law covered litigation on a wide variety of contractual clauses, including non-reciprocal early termination clauses, knowledge and acceptance clauses, “pay-if/when-paid clauses”, (excessive) penalty clauses, termination clauses and choice of forum clauses. We also explore what the future might hold in terms of unfair clauses control in the B2B context.
