skönsmässigt beslutsfattande i processrättsliga frågor

rules that, albeit mandatory in language, in fact do confer a discretion
according to the generally accepted interpretation in case law or travaux
préparatoires. As a consequence, the thesis recognises that a rule can confer
a stronger or a weaker discretion upon the judge, which also entails
that the distinction between discretionary and mandatory rules should be
perceived as a difference of degree rather than one of kind.
The stated purpose of the legislative preference for discretion is vague.
It appears that flexibility rather early on in the development acquired the
position of an aim in itself, rendering further justification of the trend
unnecessary. However, two main strands of argument can be discerned.
First, the travaux préparatoires claim that increased flexibility allows the
court to deal with easy cases swiftly and allocate more time and resources
to the most complex cases, thus using its budget in a more efficient
way. There is however little evidence to suggest that the introduction of
discretion actually does lead to less costly or time-consuming court procedures.
Secondly, a more flexible code can also, according to the travaux
préparatoires, be less burdened by detailed regulation and thereby better
stand the test of time, as it can be adapted to changing societal practises
without calling for legislative amendments. Less detailed rules are also
considered more accessible to non-lawyers (the general public and presumptive
parties).
There is little in the preparatory works to suggest that the above-mentioned
difference between classic and interpretive discretion has been the
subject of consideration on the part of the legislator. However, this distinction
has been found to carry practical significance as the study shows
that the choice between classic and interpretive discretion is relevant for
higher courts’ ability or at least propensity to review lower courts’ exercise
of discretion. Where interpretive discretion has been conferred upon the
courts, higher courts on appeal have not hesitated to review the exercise
of discretion in lower courts and at times even substitute that court’s
assessment for its own. However, the use of classic discretionary rules
seems to have given rise to a more cautious approach, where appeal courts
have often, if not entirely consistently, satisfied themselves that the lower
courts’ decisions have been within the bounds of their competence but
refrained from reviewing the actual exercise of discretion within those
bounds. This does not seem to have been intended or even anticipated by
the legislator, and consequently has not been considered in the formulation
of new discretionary rules.
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