Keywords

Summary



Keywords

1. Convention on Jurisdiction and the Enforcement of Judgments - Jurisdiction - Conditions for the application of Title II - Domicile of the defendant in a Contracting State - Domicile of the plaintiff in third country - Lack of bearing subject to an express provision of the Convention

(Convention of 27 September 1968, Title II)

2. Convention on Jurisdiction and the Enforcement of Judgments - Jurisdiction in matters relating to insurance - Objective - Protection of the weaker party - Scope - Disputes between professionals in connection with a reinsurance contract - Exclusion

(Convention of 27 September 1968, Arts 7 to 12a)

3. Convention on Jurisdiction and the Enforcement of Judgments - Jurisdiction in matters relating to insurance - Objective - Protection of the weaker party - Scope - Disputes between a private individual and a reinsurer - Inclusion

(Convention of 27 September 1968, Arts 7 to 12a)

Summary

1. Title II of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, is in principle applicable where the defendant has its domicile or seat in a Contracting State, even if the plaintiff is domiciled in a non-member country. It would be otherwise only in exceptional cases where an express provision of the Convention provides that the application of the rule of jurisdiction which it sets out is dependent on the plaintiff's domicile being in a Contracting State. Such is the case where the plaintiff exercises the option open to him under Article 5(2), point 2 of the first paragraph of Article 8 and the first paragraph of Article 14 of the Convention, and also in matters relating to prorogation of jurisdiction under Article 17 of the Convention, solely where the defendant's domicile is not situated in a Contracting State.

( see paras 47, 61, and operative part 1 )

2. The rules of special jurisdiction in matters relating to insurance set out in Articles 7 to 12a of the Convention of 27 September 1968, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, do not refer to disputes between a reinsurer and a reinsured in connection with a reinsurance contract. In affording the insured a wider range of jurisdiction than that available to the insurer and in excluding any possibility of a clause conferring jurisdiction for the benefit of the insurer, those rules reflect an underlying concern to protect the insured, who in most cases is faced with a predetermined contract the clauses of which are no longer negotiable and is the weaker party economically. No particular protection is justified as regards the relationship between a reinsured and his reinsurer. Since both parties to the reinsurance contract are professionals, neither of whom can be presumed to be in a weak position compared with the other party to the contract.

( see paras 64, 66, 76, and operative part 2 )

3. Although the rules of special jurisdiction in matters relating to insurance set out in Articles 7 to 12 of the Convention of 27 September 1968 do not refer to disputes between a reinsured and his reinsurer in connection with a reinsurance contract, they are, on the other hand, fully applicable where, under the law of a Contracting State, the policy-holder, the insured or the beneficiary of an insurance contract has the option to approach directly any reinsurer of the insurer in order to assert his rights under that contract as against that reinsurer. In such a situation, the plaintiff is in a weak position compared with the professional reinsurer, so that the objective of special protection inherent in Article 7 et seq. of the Convention justifies the application of the special rules which it lays down.

( see para. 75 )