Rättstillämpningsavtal – en genväg till effektivare rättegång? En rättsvetenskaplig undersökning av att begränsa jura novit curia genom rättstillämpningsavtal

Sammanfattning: Iura novit curia has been an essential part of Swedish procedural law for centuries. The principle dictates that the court shall apply the law while the parties provide the circumstances of the dispute. The number of cases submitted to the courts are increasing and the dispute cases amendable to out-of-court settlement are being postponed due to lack of time. Increased efficiency in the procedure is a necessity. As a result of the lack of time in the ordinary courts of law, the parties have turned to the private courts where the agreement dictates in greater occurrence. Agreements are also a considerable part of the substantive law. This paper examines if the effectiveness of the court action can increase by permitting adjudication agreements. These agreements are intended to bind the court to a certain adjudication. Adjudication agreements are, as of today, not legally binding due to its procedural character and because it undermines the obligation of the court to apply the law (iura novit curia). An allowance of the adjudication agreements would presume that the principle of iura novit curia is limited. Therefore, the paper examines the framework of iura novit curia in the purpose of highlighting the problems that can occur while the principle is applied. These problems could motivate a more restrictive approach towards the principle. One of the problems is that the principle can result in surprising adjudication. The principle can also protract the process. Furthermore, the paper conclude that the principle has been criticised in the legal literature. The paper examines the effects that the adjudication agreements could have for commercial parties and the ordinary court of law if the principle of iura novit curia is partly limited. The type of adjudication agreements where the parties identify one of several alternative laws as the only applicable law (the exclusion clause) have predominantly positive effects for the parties and the court. Adjudication agreements where the parties state that a law that is not applicable on the party relationship shall be applicable (law exchange clause) have predominantly negative effects because it complicates the courts procedure. The so-called interpretation clauses where the parties identify the applicable sources of law would also have predominantly negative effects. The conclusion is that the exclusion clauses could increase the efficiency of the court procedure.