State actors increasingly involve private parties in the development of binding alternative regulation in private law. This involvement may be welcomed as an exercise of parties’ rights, but private parties may simultaneously limit other parties’ rights.Consequently, state actors have sought to control the influence of private parties particularly in the German legal order, where the constitutional principle of private autonomy is interpreted so as to require the protection of weaker private parties from Fremdbestimmung (hetero-determination) coming from structurally much more powerful private parties. In comparison, while Dutch law generally recognizes principles of private autonomy and the need to protect parties from heterodetermination (‘heteronomie’), so far this has not permeated the Dutch discussion on alternative regulation. The idea of hetero-determination may serve as a starting point for a more active and consistent approach towards the development and limitation of alternative regulation in the Dutch legal order.
European Journal of Comparative Law and Governance – Brill
Published: Jun 1, 2016