11 Summary*

Over the last decades, the Netherlands have witnessed the development of a widespread practice of 'cooperation between courts'. Judges consult each other in different consultative bodies, in order to better coordinate the way in which they will approach certain types of cases and decide on them. In many cases, this cooperation has led to the creation of rechtersregelingen (cooperative agreements between courts), i.e. general regulations that exist to specify the discretionary power a court has over a particular subject, but that have not been formed through a court ruling. This book will look into the legal significance or in other words, the binding force, of these cooperative agreements between courts and how this significance can be given a theoretical basis.

Chapter 2 gives an overview of the most important cooperative agreements between courts that have been effected thus far. These are for instance rules of procedure, regulations on prejudgement seizure, reimbursement rates for legal costs and for extrajudicial costs, standards for calculating maintenance payments, the 'subdistrict court formula' for calculating severance pay and recommendations for applying the Debt Rescheduling (Natural Persons) Act.

Prior to discussing the legal significance of cooperative agreements between courts, what needs to be examined is how adopting these regulations affects the civil court judge's role as an independent arbitrator in individual disputes. Chapter 3 therefore looks at how the judge's independence, as well as the constitutional relationship between judge and legislator influence the possibility of adopting binding cooperative agreements between courts.

The first possible foundation for a binding force of cooperative agreements between courts can be found in the 'rolrichtlijnenarrest' (ruling on docket procedure) delivered by the Supreme Court in 1996. In this ruling the Supreme Court decided that under certain conditions the docket procedures of a court (a species of the genus of cooperative agreements between courts) may be considered law for the purposes of Art. 79 of the Judiciary Act, so that the Supreme Court can test a raling of a lower court against such a cooperative agreement between courts. Further, the Supreme Court ruled that a judge can be bound by such a regulation through the application of general principles of law.

Chapter 4 examines the conditions a cooperative agreement between courts must meet in order to be able to be considered law for the purposes of Art. 79 of the Judiciary Act. Cooperative agreements between courts appear to have significantly strong similarities to adrrtinistrative policy rules. In principle, therefore, questions occuring on cooperative agreements between courts can be answered in accordance with insights that have been developed for policy rules.

In order to have direct binding force over courts and to be considered law for the purposes of Art. 79 of the Judiciary Act, a cooperative agreement between courts has to be based on 'self- regulation' by the courts involved, which entails that the regulation must be detenriined by the 'competent body'. A cooperative agreement between courts must also have been 'duly published' and be able 'to be applied as a legal rule with respect to the parties concerned'. Finally, a cooperative agreement between courts has to remain within the boundaries of the discretionary power belonging to a court. These boundaries are primarily established by laws, treaties, precedents and other unwritten law. A cooperative agreement between courts may not conflict with these 'higher' legal rules.

Chapter 5 deals in more detail with the conditions under which a cooperative agreement between courts can be considered 'law' for the purposes of Art.79 of the Judiciary Act. The conclusion is that it is at present unclear how these conditions are to be given shape. Often, whether a certain cooperative agreement between courts meets these conditions can only be assessed against the circumstances of a case. In view of this, a statutory provision for cooperative agreement between courts is desirable, certainly in the long run.

Chapter 6 deals in more detail with the binding force of cooperative agreements between courts that meet the conditions to be considered law for the purposes of Art. 79 of the Judiciary Act. From the nature of these rules - not generally binding regulations, but rules of a lower order - it ensues that they can only lead to a binding force of a limited extent. First, in special cases, courts will be allowed to deviate from the cooperative agreements between courts. Furthermore, a cooperative agreement between courts can only lead to a 'relative' binding, i.e. between the courts that establish the agreement and the parties. Other courts than those that have established the agreement - especially the higher courts - are not directly bound by such an agreement. There is, however, in certain cases an indirect form of binding force, which means that a higher court must test the decision of a lower court against its cooperative agreement between courts.

The added value of qualifying a cooperative agreement between courts as 'law' for the purposes of Art. 79 of the Judiciary Act is that in this way the Supreme Court can supervise the interpretation and application of such a cooperative agreement between courts. In principle, this gives the parties to the proceedings the possibility to actually enforce a lower court to observe the cooperative agreement between courts. The possiblities of enforceability, however, are limited in certain respects. More or less contrary to this is the fact that in certain cases the court has an ex officio obligation to apply the cooperative agreement between courts. This again, however, also has important limitations, as a result of which the practical significance of this obligation will not be very great.

The second way in which a cooperative agreement between courts can acquire a certain binding force is through its 'carry-over' into court decisions. When courts apply a certain cooperative agreement between courts in their decisions (or when a cooperative agreement between courts is based on decisions that were previously delivered by the courts), the cooperative agreement between courts shares in the precedent-setting value of this decision.

Chapter 7 looks into the value Dutch law attributes to court decisions (precedents) in general. Although the views held in the case law and literature of this field are not entirely unequivocal, nevertheless, the conclusion can be drawn that in Dutch law the courts are bound by precedents to a certain extent in any case. This binding force does not only exist if and to the extent that a previous decision is still deemed correct as regards content. Apart from its cogency as regards content, it is also founded on other grounds that give a court decision an independent normative value. In Dutch law, the most accepted system of binding precedents is that along 'vertical' lines, especially through Supreme Court decisions. On the other hand, no system of 'horizontally' binding precedents between courts of equal rank has developed so far. However, arguments can be advanced on the relations between lower courts to argue the existence of a certain system of binding precedents, although these will have less binding force than Supreme Court decisions.

The binding force of precedents under Dutch Law is certainly not absolute, but can be compared to the significance English Law awards to so-called 'persuasive precedents'. Although in principle, a court can be deemed bound by certain precedents, it can reconsider a previous decision, if it is no longer acceptable to adhere to the previous decision in light of the development of law and of current views and circumstances in society. A court that wishes to deviate from a binding precedent will have to give conclusive reasons for doing so.

The fact that cooperative agreements between courts are different from the regular rules laid down in precedents is no fundamental impediment to assume a 'system of binding precedents' from a cooperative agreement between courts, after its application in one or more court decisions. Chapter 8 further investigates this possibility. Two systems of binding precedents are treated here: the 'vertical' system (binding to decisions of a higher court) and the 'horizontal' system (binding to decisions of courts of the same level).

Binding precedents of cooperative agreements between courts through decisions of higher courts hardly create any problems. Whenever the Supreme Court in its decision accepts a legal rule that corresponds to a prior cooperative agreement between courts as regards content, both the Supreme Court itself and lower courts are to be deemed bound by this legal rule. By analogy with this, the relation between the court of appeal and the court in first instance can be drawn up. Applying a cooperative agreement between courts, however, does not create an unimpaired binding; just like 'ordinary' precedents, a cooperative agreement between courts (accepted in case law) may be reconsidered.

Despite the fact that as yet no 'horizontal' system of binding precedents has developed in Dutch law, at a horizontal level - which in practice is often the case in cooperative agreements between courts - a certain binding of lower courts to each others' decisions can be argued. As a certain trend in case law becomes clearer, at the level of the lower courts a certain - and ever increasing - degree of binding to that case law can arise. This can be argued through the general principles of proper administration of justice, especially the principle of equality and the principles of legal certainty or legitimate expectations. Invoking these principles will become more effective when a similar decision has been delivered in comparable cases. However, the system of binding precedents that may arise this way will still have a more flexible character than the 'vertical' system of binding precedents.

Although the possibility of a system of binding precedents for cooperative agreements between courts is to a certain degree theoretical, it nevertheless forms an important addition to the possibility of 'prior' self-regulation by the courts to a cooperative agreement between courts, as accepted in the ruling on docket procedure. It can provide a substantiation of why cooperative agreements between courts that do not meet the criteria to be considered law for the purposes of Art. 79 of the Judicial Act at this point, but are being applied in consistent case law, should not be dismissed or at least not without giving reasons.

The conclusion of Chapter 9 is that the cooperative agreement between courts is a hybrid legal concept, which on the one hand shows traits of legislation (rules worded in general terms that have not been laid down in a concrete decision), but on the other hand has characteristics of case law, as a cooperative agreement between courts is determined by courts. However, in a way, the cooperative agreement between courts is subordinate both to legislation and to law of precedent, since it may not conflict with either and also has a lesser binding force. Despite these limitations the cooperadve agreement between courts may be a suitable addidonal instrument of supplementing existing law.

In future, statutory regulation of this legal concept would be desirable. It is also recommended that courts themselves give more insight into the existence of cooperadve agreements between courts by making them public - if necessary with the proviso that no rights may be derived from the publication of the agreement. In their decisions, courts should also make clear when and how they are applying a cooperadve agreement between courts, or when they are excluding application, for instance because of a conflict with higher legal rules or the presence of special circumstances.