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Contractualizing Procedure

58 Pages Posted: 5 Jan 2009  

Alon Klement

Buchman Faculty of Law, Tel Aviv University

Daphna Kapeliuk

Interdisciplinary Center Herzliyah

Date Written: December 31, 2008


Modification and waiver of procedural rules are commonplace between litigants during trial. Yet, contracting parties may also want to modify the rules of procedure before the dispute arises. This paper analyzes the motivations behind pre-dispute procedural arrangements, which we call contractualized procedures, and their implications over the enforcement of such procedures and the design of default procedural rules. It explains the advantages that contractualized procedures offer over post-dispute modifications, and explores how the early timing of procedural modifications affects litigation externalities.

Keywords: Contract, Procedure, Default Rules

JEL Classification: K12, K40

Suggested Citation

Klement, Alon and Kapeliuk, Daphna, Contractualizing Procedure (December 31, 2008). Available at SSRN: or

Alon Klement (Contact Author)

Buchman Faculty of Law, Tel Aviv University ( email )

Tel Aviv

Daphna Kapeliuk

Interdisciplinary Center Herzliyah ( email )

P.O. Box 167
Herzliya, 46150
972-9-9527610 (Phone)

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