13.2.2 Application

On the basis of the guiding principles set out above it has been checked in this dissertation to what extent certain agreements are admissible. Each time it has been verified whether any of the aforementioned interests impedes the agreement as to proceedings. It is concluded in chapter 5 that agreements as to proceedings concer-ning the authority to conduct legal proceedings are usually invalid. Thus, parties cannot validly agree that there will be no access to a court whatsoever. The fact that parties can create natural obligations by an agreement can be explained because this concerns a substantive arrangement whereby, other than in the exclusion of the authority to conduct legal proceedings, there is no discrepancy between what applies inside and outside the courtroom. Invalid, too, are the agreement not to conduct legal proceedings about a portion of a claim, the agreement not to conduct interlocutory proceedings, the agreement limiting the authority to put forward facts or to take positions and the agreement to actually conduct legal proceedings. Admissible, on the other hand, is the agreement for binding advice. It would furthermore be a good thing if the possibility for the parties were accepted by means of an agreement for mediation temporarily to exclude the authority to conduct legal proceedings. And finally the legal system should be reviewed that parties cannot extend the compe-tence of the court by assigning it another type of tasks than for which it is competent under the law. In cases in which the court's decision can contribute to an efficient settlement of (possible) disputes of parties which is in keeping with a competence that has indeed been granted by law, parties should have this option.

In chapter 6 it turns out that parties can, within the framework of the regular procedure, derogate from the fundamental principles of procedural law to a very limited extent only. Thus, they cannot agree a hearing in chambers, cannot derogate from the right to an independent and impartial court and cannot determine that the grounds of the judgment will be dispensed with. Admittedly, parties may agree not to plead in their case, but they cannot determine that the proceedings will be fully in writing. The right to an equal treatment cannot be put aside by an agreement as to proceedings. Nor can parties exclude the right to express an opinion on a certain performance of taking of evidence, nor can they validly agree that only the court can take cognisance of certain confidential documents or information, without this being possible for the other party. It is possible to a certain extent, though, for parties to restrict the procedural remedies that are available in proceedings. Even then, parties must be left with sufficient opportunities to present their case. Within certain limits, parties can also extend the time limits applicable in the proceedings.

In the context of arbitration and binding advice parties clearly have more liberty by agreement to declare fundamental rights to be inapplicable. Through the mere conclusion of an agreement for arbitration or binding advice they cannot be deemed to have fully relinquished these principles, although the protection afforded by these principles will in some cases be less far-reaching than within the context of the dispensation of justice by a regular court. By explicit agreement parties can push aside the fundamental rights to a great extent. They can, for instance, agree on a con-fidential hearing of their case, agree that the proceedings will take place fully in writing and establish long time limits for its treatment. Although parties have ample powers to shape the procedure, they must always retain the practical possibility of presenting their case. In the context of binding advice parties can even agree to treatment by a third party charged with giving a binding opinion who is actually partial, even before a dispute arises. In the context of arbitration parties can only, when the dispute has already arisen, appoint an arbitrator who has the appearance of being biased against him. They can also at that moment determine that arbitrators will conduct their own examination within the framework of the assessment of evidence. In the context of arbitration and binding advice not all agreements as to proceedings are admissible. An agreement whereby parties agree that the grounds for the judgment will be dispensed with altogether, cannot be accepted. Nor can parties exclude the right to an equal treatment by agreement or can they declare the right to hear and be heard to be inapplicable by agreement.

In chapter 7 centre stage is occupied by the provisions that appear to require a certain statement or behaviour of the parties for derogation from procedural law. In these cases it depends on the tenor of the statutory provision to what extent the parties are already bound to an agreement preceding the statement or behaviour. Thus, parties cannot agree in advance by virtue of article 133 Rv (Code of Civil Procedure) unanimously to request a postponement - there will need to be an actual unanimous request made by the parties. The same applies in general to derogation from the National Rules of Procedure for civil summons before the courts pursuant to article 1.4 of these rules. It is possible, however, for the parties, at the moment when the dispute or the matter that is the subject of litigation has already arisen, to agree by virtue of article 255 paragraph 2 Rv to appear in interlocutory proceedings without any writ of summons; pursuant to article 270 paragraph 1 Rv to derogate from the relative jurisdiction in procedures commenced by petition; and by virtue of article 96 Rv to agree to turn to a specific subdistrict court. In the two last-mentioned cases the requirement of proof of article 108 paragraph 3 Rv should be applied (by analogy).