Private International Law of Reinsurance and Insurance
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REINSURANCE JURISDICTION - BRUSSELS REGULATION
- B. Preliminary matters: is the subject-matter of the dispute within the Brussels Regulation?
- C. Is there a choice of jurisdiction agreement under Article 23?
- D. Is there jurisdiction based on the defendant’s domicile under Article 2 or the operations of a branch under Article 5(5)?
- E. Is there jurisdiction based on matters relating to a contract under Article 5(1)?
- F. Is there jurisdiction based on matters relating to tort under Article 5(3)?
- G. Is there jurisdiction in respect of a claim against a co-defendant, third party or counterclaim under Article 6?
- H. Is there jurisdiction to grant provisional or protective measures under Article 31?
- I. Preventing conflicting decisions: declining jurisdiction, stay and anti-suit injunctions under Articles 27-30.
- J. Jurisdiction within the UK under Schedule 4 of the Civil Jurisdiction and Judgments Act 1982 (under which stay for forum non conveniens is still available).
B. PRELIMINARY MATTERS
5.2 A number of questions need to be addressed in any reinsurance dispute before getting to what is usually the heart of the matter: jurisdiction under an exclusive jurisdiction agreement or founded on matters relating to a contract or tort. Of these preliminary matters the most important is whether or not the arbitration exclusion applies. We consider the following main headings:- (1) Is the subject-matter within the Brussels Regulation?
- (2) Does another convention apply?
- (3) Does Article 22 give mandatory jurisdiction?
- (4) Has the defendant entered an appearance under Article 24?
1. Is the subject-matter within the Brussels Regulation?
5.3 The Brussels Regulation applies in “civil and commercial matters” (Article 1). It is set out in Appendix 1.1. Although this concept has an autonomous meaning, reinsurance and insurance disputes are invariably civil or commercial matters.2 The question then is whether or not the Brussels Regulation excludes the dispute from the purview of the regulation, in particular because it is concerned with arbitration. Reinsurance disputes often involve the possibility of arbitration, and this exclusion is potentially very important. Arbitration is considered in Chapter 8.Page 44
2. Does another convention apply?
5.4 Article 71(1) prevents the Brussels Regulation from applying where other specialised conventions on jurisdiction apply:“This Regulation shall not affect any conventions to which the member states are parties and which in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments.”