13.3.1 Obligatory effect?

By means of an agreement as to proceedings parties derogate from a rule of procedural law. In chapter 8 it is examined whether such an agreement also has an obligatory effect apart from that. Are the parties obligated vis-a-vis each other to behave in accordance with the rule agreed? It is concluded that no obligations arise from agreements as to proceedings if the parties have not provided anything about this. Parties can explicitly agree to an obligatory effect, though. In addition, the parties' obligations cannotbe isolated from the procedural rules that they have agreed upon. If, for example, the agreement whereby the parties have declared a specific court to have jurisdiction proves to be null and void, it is impossible that they have created valid obligations to conduct proceedings before this court. The Brussels I Regulation is not in conflict with the obligatory effect of jurisdiction agreements. The case law of the European Court of Justice does show that the delivery of a so-called 'anti-suit injunction', whereby a party is forbidden to conduct proceedings before the court of another country, is incompatible with the Brussels Convention. However, this case law does not preclude the acceptance of an obligation to litigate merely before a designated court, but only, in specific cases, the enforcement thereof. After all, in the ruling Turner/Grovit c.s. the Court explicitly considers that the application of national procedural rules may not impair the effectiveness of the Convention.1

The question whether parties have in the framework of their agreement indeed agreed upon obligations is governed by procedural law. Whereas the concept of the obligation has not been provided for in Dutch procedural legislation, civil law can, in view of the principle of uniformity in law, in principle be applied mutatis mutandis. Within the context of agreements of an international nature, such as the agreement of an international forum selection or an arbitration agreement, foreign civil law may qualify for this as well.

As regards the agreement of a forum selection that is governed by the Brussels I Regulation, it can be said that this Regulation does not say anything about the question whether parties can also create obligations within this context. This is a question that is left to the national laws of the Member States. For this it will be necessary to examine the law of the Member State of the court designated by the parties in their forum selection. Here, too, the application of this law may not impair the effectiveness of the Brussels I Regulation.