13.2.1 General guiding principles

Sometimes it has been explicitly provided by law that parties may derogate from procedural law by means of an agreement or by means of certain behaviours or statements. Even if not explicitly provided by law, parties can in certain circumstances validly enter into an agreement as to proceedings. In order to see when this is so, it must be determined what procedural rules are of a directory nature.

In the German literature ideas about this subject are different. There, apart from agreements whereby parties derogate from a procedural rule, agreements are also recognised whereby the parties mutually undertake to exercise a procedural autho-rity yes or no. In this way a broad admissibility of agreements as to proceedings is obtained. This distinction should not be taken over in Dutch law. Firstly, because the rule is that obligations of parties can never be detached from the rules that apply in the proceedings. Thus, it is not possible to assume that an agreement not to put up a defence has no consequences in the proceedings to which it relates, but only results in a situation in which the party that does put up a defence becomes liable for compensation due to infringement of an obligation. Even if it should be accepted that such an agreement actually does have consequences for the primary proceedings, it cannot be recognised as a separate type of agreement as to proceedings. After all, if the parties commit themselves to exercise a certain procedural authority, they actually derogate from a rule of procedural law, notably the rule that a party is entirely free to exercise that authority. Therefore the admissibility of such agreements should be assessed according to the same criteria as are applicable to other agree-ments that diverge from procedural law.

To determine in what cases parties can validly conclude an agreement as to proceedings, then, it must be established which procedural rules are of a directory nature. This will need to be done by explaining these rules. The basic assumption here is that parties may derogate, unless specific reasons can be indicated that preclude derogation. In a state under the rule of law, any curtailments of freedom need to be properly legitimised.

The number of such curtailments depends on the question how the nature of civil procedural law is regarded. Procedural law is not only an instrument for enforcing parties' subjective rights, but also serves to maintain law and order and to safeguard legal peace. Wagner has argued that this latter goal is merely a side effect of the enforcement of the subjective rights of parties. In his view, legal peace is not jeopardised if a party itself decides not to enforce its rights. However, legal peace is jeopardised if a party does not have the possibility to enforce its rights. This even goes if the party itself has limited this possibility. A party may deem it highly iniquitous if it does not get what it is entitled to, even ifthis is a direct result of its own acts. Moreover, proceedings are not only important for the parties themselves, but also have an effect on the trust that society has in the administration of justice. If society sees that the court does not sufficiently enable a party to put forth its case, this will affect the court's authority, also if it acts in implementation of an agreement of the parties. Hence, legal peace cannot be maintained in all cases by simply following the wishes of the parties. Contrary to Wagner's view, the goal of maintaining law and order and safeguarding legal peace does bring its own requirements. It is perfectly possible to argue that a certain agreement as to proceedings is invalid due to general interests such as the maintenance of legal peace or the need to bring the truth in the case to light.

All in all, there are a number of interests that may prejudice the validity of an agreement as to proceedings. There is the interest of protection of the parties, the interest of protection of third parties, the interest of as limited a use of public funds as possible, the interest in sufficient access to the dispensation of justice being warran-ted, the interest of trust of society in the administration of justice and the interest of trust of society in the authorities. If none of these interests obstructs derogation from a procedural rule, parties can validly conclude an agreement as to proceedings.

The above is not changed if the legal relationship about which the parties are litigating is governed by mandatory private law. Only if a certain area has a strong link with the right of public order, are agreements as to proceedings excluded in this area. In addition, in such a case this only applies to those agreements as to proceedings that are closely connected with the substantive case being litigated. Although the presence of 'ordinary' mandatory private law is no objection in principle, an exception applies furthermore if there is a standard of mandatory private law with the explicit purport to affect also the validity of agreements as to proceedings. An example in kind is article 7:6 BW (Dutch Civil Code) regarding consumer sale.

Within the context of arbitration and binding advice proceedings, parties can also enter into agreements as to proceedings. Indeed, in these contexts agreements as to proceedings are even more amply admissible than before regular courts. This is because the interest in the most limited use of public funds is notan issue, while there is a far more limited role for the trust in the administration of justice.