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Netting arrangements: not enforceable in Belgium against non-merchants: any solutions?

Belgium
15/01/2012
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Through its decision of 27 November 2008, the Belgian Constitutional Court declared netting arrangements in insolvency proceedings, which are explicitly allowed under the Belgian Financial Collateral Law of 15 December 2004, unconstitutional where such netting arrangements apply to non-merchants. Despite the numerous criticisms about this decision, the amended Belgian Financial Collateral Law, entered into force on 10 November 2011, now explicitly excludes non-merchants from its scope. However, even in the case of non-merchants, financial institutions can still claim netting by operation of (the more strict conditions of) the Belgian Civil Code.

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