13.4.1 Applicable law

What law applies to agreements as to proceedings? Is it civil law, the civil procedural law, or perhaps both? To answer this question the criterion that civil law and civil procedural law form part of one legal system is of essential importance. This criterion entails that unnecessary differences between the two areas should be avoided. If this criterion is heeded sufficiently, its exact elaboration is less significant. In this disserta-tion the approach has been adopted that concepts in the grey area between civil law and civil procedural law will first be allocated to one of the two areas, with application mutatis mutandis of the rules of the other area where this is desirable.

In the approach adopted, agreements as to proceedings must be qualified proce-durally, as they focus in particular on the establishment of consequences in the field of procedural law. This is not precluded by the fact that procedural legislation does not include an extensive arrangement of the concept of the agreement. The law of contracts as it has been developed in civil law can, in view of the principle of the uniformity of law, also be taken to be the starting point for civil procedural law. Analogous application is all the more obvious, considering the fact that agreements as to proceedings actually do have property-law characteristics. Derogations from the arrangement provided in civil law must be substantiated properly.

Agreements as to proceedings of an international nature must be assessed on the basis of Dutch procedural law by the Dutch court. Civil law can be applied mutatis mutandis here too, though. Dutch procedural law implies that foreign law qualifies for this as well.

The Brussels I Regulation allows limited scope for the application of national civil law to the agreement of forum selection. This concerns the law of the Member State of the court designated in the forum selection.