Evidentiary Contracts and Agreements: Party Autonomy Determining the Rules of Evidence

This book addresses the worldwide movement towards granting the parties to a contract the possibility of defining the rules of evidence in a pending or future court procedure. The so-called “evidentiary contracts and agreements” are contractual stipulations to derogate default statutory norms regarding evidence.

Legal systems more inclined to see judges as central characters of litigation often emphasize jurisdictional powers to produce evidence ex officio. Judges should be entitled to bring evidence to the procedure on their own motion to search for the truth; justice and fairness of the final decisions about the facts should be assured as values of public interest, intrinsically dependent on judicial oversight. Therefore, parties should not be able to govern those rules according to their private goals and strategies.

In other legal systems, parties have a stronger role as protagonists of the procedure and should take the more intense initiatives regarding the allegation of facts and the evidence supporting them. Party autonomy to shape the formalities of litigation should follow the waivability of substantive legal rights. Judges would then have a subsidiary role, and parties’ stipulations about evidence would reflect the unavoidable private interests involved, including the costs of evidence and its impacts on privacy, professional or trade secrets, and business confidential information.

Across the globe, many contracts nowadays (both nationally and internationally) contain clauses through which the parties intend to control and regulate how evidence is to be taken, evaluated, and how it should or should not support the legal reasoning about facts in judicial decisions. In this backdrop, a comparative analysis of different jurisdictions can certainly be of interest to academics and practitioners. It seems of utmost relevance to debate the admissibility of evidentiary contracts and agreements, their conditions of validity, the role of judges vis-à-vis these stipulations, and the several types of legal transactions that can be entered into by the parties to determine the rules of evidence to be applied in a certain court procedure.