Seminar on the contractualisation of civil litigation
An international seminar on contractualisation of civil litigation with participants from 11 countries across the world was hosted by the Research group for civil procedure and dispute resolution 13-14 June 2022.
The participants discussed various aspects of contractualisation of court proceedings, that is parties are increasingly allowed to agree to deviate from the regular rules of civil procedure, by entering into agreements on choice of courts, division of litigation costs, waivers of appeals, access to evidence and burden of proof. What are the advantages and disadvantages of procedural contracts, and under which circumstances should the court exercise control of the agreement, and what should be the scope and intensity of the control? How should procedural contracts be defined: Is a narrow definition that encompasses only legally binding contracts adequate, or would using a broad definition that also harbours some forms of consensual decision-making regarding procedure provide a better tool for analysing the phenomenon comprehensively?
Contractualisation of civil litigation is related to current trends in civil justice: increasing complexity of legal disputes, flexibilisation of court proceedings, privatisation, and hybridisation of dispute resolution and the emergence of international commercial courts. During the seminar, the interrelations between contractualisation and other current trends in civil procedure were discussed both generally and in relation to the societal and legal context in which procedural contracts are entered into.
What is the potential of procedural contracts to render better outcomes, better justice? Which factors constrain – or should constrain – the duty of the court to abide by procedural contracts?
The outcomes of the seminar are due to be published in 2023.
Participants: Anna Nylund and Magne Strandberg (University of Bergen), Yulin Fu (University of Beijing), Florian Eichel (University of Bern), Hermes Zaneti jr. (The Federal University of Espirito, Brazil), Bart Krans (Leiden University) Catherine Piché (University of Montreal), Wolfgang Hau (Ludwig-Maximilian University, Munich), Antonio Cabral (Rio de Janeiro State University), Shusuke Kakiuchi (University of Tokyo), Vigita Vebraite (University of Vilnius), Henrik Bellander (Uppsala University) and Alan Uzelac (University of Zagreb).
The seminar was funded by the Nansen and Meltzer Research Funds.