Party autonomy in domestic and cross-border enforcement proceedings

Abstract

In an open society, freedom of contract is usually the starting point of every discussion about the organisation of relationships governed by private law. As regards enforcement, however, even in civil cases party autonomy normally only refers to the freedom of the person pursuing enforcement: It is up to the judgment creditor to decide if and when he or she will bring enforcement proceedings. The debtor, on the other hand, seems to have almost no saying. Of course, the debtor can be allowed to apply for a postponement or a judicial review of execution measures. But when it comes to enforcement, at least in principle, the debtor is not a partner on an equal footing but subject to all legal measures as long as he or she is not willing and prepared to do what he or she has been convicted to do. This is at least the traditional approach, which, in turn, may explain why enforcement agreements have received less attention than consensual solutions in other fields of procedural law