Private International Law of Reinsurance and Insurance

Raymond Cox; Louise Merrett and Marcus Smith

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4 LEGAL REGIMES DETERMINING JURISDICTION

4.1 There are three main regimes governing the in personam jurisdiction of the English court1:

(1) the first is the Brussels regime (which is derived from the Brussels Convention);
(2) the second is the Lugano Convention; and
(3) thirdly there are traditional rules which apply in all other cases, referred to as the common law (although in fact many of the rules are enshrined in statute).

4.2 Special rules apply to allocate jurisdiction within the UK. Special rules also apply to arbitration (considered in Chapter 8 below). 4.3 Together these regimes make up a complex patchwork of regulation which will apply to determine all questions of jurisdiction arising out of contracts of insurance and reinsurance. The process of considering whether or not the English court has jurisdiction in relation to a particular dispute must begin by identifying the applicable regime. Working out which regime applies can be tedious but is important. 4.4 Generally speaking only one set of rules will apply to a particular dispute. If the Brussels Regulation applies, the Brussels Convention will not. However, the picture is slightly more complicated. The European rules sometimes apply national law, including English common law, as a form of delegated legislation in which case the European rules may modify the operation of the common law (see para. 4.10 below).

B. IDENTIFYING THE REGIME TO APPLY

1. Do the European rules apply?

4.5 The first question is to decide if the European rules apply (that is whether the matter is governed by the Brussels regime or the Lugano Convention). Some issues are relevant equally to the Brussels Convention, the Brussels Regulation and the Lugano Convention: thus in relation to all European regimes this depends on

(1) whether or not the matter is a “civil and commercial matter”. Reinsurance and insurance disputes are invariably civil or commercial matters.2
(2) whether or not the matter is excluded or another Convention applies. The relevant exclusion in relation to reinsurance and insurance is arbitration (see Chapter 8). As to other conventions, see para. 5.4 below.
(3) whether or not the matter is international. The Brussels Convention only applied where there was an international element involved:

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It alters the rules of jurisdiction in force in each Contracting State only where an international element is involved. It does not define this concept, since the international element in a legal relationship may depend on the particular facts of the proceedings of which the court is seised. Proceedings instituted in the courts of a Contracting State which involves only persons domiciled in that State will not normally be affected by the Convention; Article 2 simply refers matters back to the rules of jurisdiction in force in that State. It is possible, however, that an international element may be involved in proceedings of this type. This would be the case, for example, where the defendant was a foreign national, a situation in which the principle of equality of treatment laid down in the second paragraph of Article 2 would apply, or where the proceedings related to a matter over which the courts of another State had exclusive jurisdiction (Article 16), or where identical or related proceedings had been brought in the courts of another State (Article 21 to 23).3

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