13.3.2 Ex-officio application?

In chapter 9 it is examined what effect agreements as to proceedings have in the proceedings. Should parties invoke such an agreement, or does the court apply it of its own motion? In the answer to this question one should distinguish between agree-ments as to proceedings whereby parties derogate from directory law, and agree-ments whereby they derogate from the right of public order. Courts do not of their own motion apply agreements as to proceedings whereby directory law is derogated from. This implies that parties will have to invoke such agreements themselves. Nor do courts, in principle, review ex officio whether an agreement as to proceedings invoked by one of the parties has been concluded in a valid manner.

The law also recognises a number of agreements as to proceedings whereby parties do not derogate from directory law, but from the right of public order. An example is the agreement of a forum selection, whereby they derogate from the rules of international jurisdiction. In case of such an agreement sometimes testing ex officio takes place, whereas in other cases an application from the parties is required. In order to be able to determine when which situation applies, paragraph 9.3 formulates a number of guiding principles that may be helpful.

Both for agreements as to proceedings whereby directory law is derogated from, and for those derogating from the right of public order, a special arrangement applies if they have been included as a clause in a consumer contract. As a result of the case law of the European Court of Justice the court then tests ex officio whether such a clause is unfair. For this purpose the court must exclude the application of articles 9 sub a, 110 paragraph 1 and 1052 paragraph 2 Rv (Code of Civil Procedure) and of 24 Brussels I Regulation.