The (pre-trial) right of inspection: excludable?

1. Introduction

The new law of evidence, which came into force in early 2025, has already been the subject of extensive discussion and debate. One of the most striking changes is the introduction of the pre-trial right of inspection. This allows a party to request data – such as written documents and electronic information – from a counterparty or third party, without court intervention. In principle, the counterparty and third party are obliged to comply. Under former law, a party had the right of inspection only when granted by the court in legal proceedings. An as of yet unanswered question is whether and to what extent the (pre-trial) right of inspection can be excluded. In other words: can parties agree that they are not obliged to comply with a (future) information request?

2. Can the right of inspection be excluded?

Parties can contractually deviate from the law of evidence. This possibility is embedded in the wording of Clause 153 DCCP and stems from the parties' party autonomy: the right of parties to determine whether and to what extent they submit their dispute to the courts and which rules of evidence apply.

However, party autonomy does have limits. Based on Clause 153 DCCP, an agreement that deviates from the statutory law of evidence remains inapplicable when:

It relates to evidence of facts to which the law attaches consequences that are not within the free discretion of the parties.
Relying on this deviation is unacceptable according to the standards of reasonableness and fairness. This depends on the nature of the agreement and the circumstances of the case

In short, as part of the law of evidence, parties may agree to exclude the right of inspection within certain limits. As an example of exceeding these limits – due to a reliance on an exclusion that is unacceptable according to the standards of reasonableness and fairness – one might consider a unilateral exclusion of the right of inspection in favour of one party and to the detriment of the other, resulting in an unacceptably weak legal position for the latter.

3. How and in what case can the right of inspection be excluded?

Parties can exclude the right of inspection by concluding an agreement. Several forms are conceivable:

Through a separate agreement, specifically aimed at excluding the right of inspection.
As part of a more comprehensive agreement, such as a distribution agreement or a share purchase agreement.
In general terms and conditions.

In commercial relationships (B2B), all of these forms of exclusion are in principle allowed. However, in relationships between companies and consumers (B2C), the situation differs when the exclusion is included in general terms and conditions. Such a provision is considered an unreasonably onerous clause and therefore voidable.

Aside from the general terms and conditions, the applicability of evidence agreements - both in B2B and B2C relationships - remains in any event limited by the standards of reasonableness and fairness described above.

Parties can generally exclude the right of inspection at two moments in time:

1. When entering into a legal relationship and regulating it.

2. After a dispute has arisen.

The latter is mainly a theoretical option, as parties in a conflict will (generally) be unwilling to relinquish their right of inspection. Therefore, if a party wishes to exclude the right of inspection, it is advisable to do so when entering into a legal relationship, as the other party is more likely to cooperate at that stage.

4. Why exclude the right of inspection?

Parties may have various reasons for excluding the right of inspection, including:

Preventing discussions on the scope of the right of inspection: exercising the right of inspection can lead to a difference in perception on what data should or should not be provided.
Protection of confidential information: excluding the right of inspection ensures the confidentiality of strategically or commercially valuable data.
Minimizing costs: providing data may involve significant internal and legal costs, particularly in the case of a broad access request. Excluding the right of inspection helps minimize these costs.

5. Conclusion

In summary, exclusion of the right of inspection is permitted within certain limits. This can be achieved through an evidence agreement laid down in a separate agreement, a more comprehensive agreement or general terms and conditions. It is advisable to agree on the exclusion of the right of inspection when entering into a legal relationship. Exclusion prevents discussions about its scope, protects confidential information and minimizes costs, both prior to and during a dispute.

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