13.4.2 Content ofthe law on agreements as to proceedings

In chapters 10 and 11 it is examined what the application of the aforementioned general guiding principles leads to in concrete cases. It is studied in which cases civil law is indeed applied mutatis mutandis to agreements as to proceedings, and in what cases derogations therefrom are legitimised pursuant to the procedural legal context. It turns out that civil law has been derogated from in a limited number of cases only. Firstly, the rules of civil law are in principle applied mutatis mutandis to the establishment of agreements as to proceedings. Contrary to this it has been determi-ned with respect to certain agreements as to proceedings that they can be concluded tacitly and in some cases formal rules or requirements of proof apply. It also turns out that civil law is applied mutatis mutandis to the interpretation of agreements as to proceedings. Furthermore, agreements as to proceedings may be voidable on account of vitiated consent and their application may be excluded pursuant to the restrictive effect of reasonableness and fairness. Agreements as to proceedings featuring in general conditions may be annulled if it appears that they are unreasonably onerous. Application of a forum selection clause which is governed by the Brussels I Regulation must also be excluded if this clause features in a consumer contract and is unfair within the meaning of the Council Directive on unfair terms. In addition, an agreement as to proceedings in general conditions is voidable, if the user of the general conditions has not given the other party a reasonable opportunity to famili-arise himself with those conditions. However, this does not apply to a forum selection clause that is governed by the Brussels I Regulation, since the formal rules of article 23 Brussels I Regulation provide for this matter exhaustively. Finally, agreements as to proceedings, if linked to an (action for enforcement of a) certain claim, pass to the new creditor if such a claim is assigned. Title 2 of Book 6 of the BW (Dutch Civil Code) is directly applicable in such a case.

If parties have established obligations within the context of an agreement as to proceedings, the guiding principle is also that civil law can be applied thereto mutatis mutandis. The procedural context regularly does imply that civil law must be derogated from. Firstly, in case of noncompliance with the obligation, an order to comply is possible only seldom, the reason being that this will always involve an imposition of a prohibition relating to a specific procedural behaviour. In principle it is up to the court seized of the substantive dispute to assess what procedural behaviour is admissible. Another court ought not to interfere with this. There is a limited number of exceptions to this guiding principle. Firstly, a prohibition may sometimes be imposed upon a party, in the enforcement of an obligation from a jurisdiction agreement, to litigate before a foreign court. This is the case if the other party shows that trust in this court is not justified. Also, it is conceivable that a party is forbidden in interlocutory proceedings, pursuant to an obligation from an agreement as to the exclusion of certain articles of evidence, to bring certain documents to the notice of the court hearing the main action.

Allowing a claim for damages is also possible only in a limited number of cases. In case of infringement of an obligation from a jurisdiction agreement it is in general only possible to award damages if this is in accordance with the judgment of the court seized of the case in contravention of the agreement. If this court declares that it lacks jurisdiction in view of the existence of the agreement, then the costs of the procee-dings incurred in this case qualify for compensation. If, however, this court does deal with this case, damages are in principle excluded. An important exception exists if it concerns a foreign court of a non-Brussels I Regulation state. Then damages are possible if it is shown that trust in this court is not justified, for example because there has been no fair hearing.

If a party violates an obligation from another kind of agreement as to proceedings than a jurisdiction agreement, the damages will usually consist of legal costs. In principle these costs qualify for compensation.