Chapter 5 - The Development of the Law on Algemene Voorwaarden

Summary

Introduction

Unlike German law, the Dutch law on STCs has not been celebrated as a success story. Instead, weaknesses have been detected. Accordingly, can weaknesses in Dutch law be traced to a lack of interaction between interdependent actors, in line with insights from multilevel governance?

In accordance with pluralist arguments, has the coexistence of actors contributed to the strong points of Dutch law, or could the coexistence of actors also help to improve Dutch law? Has the coexistence of national and European actors strengthened the responsiveness of the law to foreign and international actors or have Dutch actors recognised the benefits of mutual learning and regulatory competition?

Paragraph 5.2 will introduce the law on STCs and discuss the strengths and especially the weaknesses. Paragraphs 5.3–5.5 will analyse the use of codifications, blanket clauses and general principles. Paragraph 5.6. will draw a conclusion on the use of national techniques. Paragraph 5.7. will consider the use of techniques in addition to or instead of currently used techniques. Paragraph 5.8. will end with a conclusion, debating whether the coexistence of actors is beneficial or detrimental for the Dutch law on STCs, in accordance with multilevel governance and pluralist perspectives.

The law on algemene voorwaarden

The Dutch law on STCs can be found in articles 6:231 et seq BW. The blanket clause, article 6:233 sub a BW, which bans the use of unfair contract terms has led to the development of a lot of case law, especially from lower courts.

The BW is commonly considered as a successful codification. Articles 6:231 et seq BW are, however, relatively new and at some points, it has developed differently than the legislator had expected. In some respects, the regime is a success: it has enabled, and encouraged, collective negotiations on STCs.

The Dutch regime has, however, been severely criticised on the following points:

The rules on the availability of clauses

The strict interpretation of the duty to make STCs available under article 6:234 BW has been criticised as it wrongly presupposes that clauses are read prior to the contract.891After the implementation of Directive 2006/123 in articles 6:230a-c BW, possible overlap with article 6:234 BW, which imposes a stricter duty on parties, remains. Schelhaas prefers a rule that is in accordance with article 6:230a et seq BW that provides a more lenient rule.