Lloyd's Maritime and Commercial Law Quarterly
REINSURANCE, GOOD FAITH AND ART. 5(1) OF THE BRUSSELS CONVENTION
Agnew v. Länsförsäkringsbolagens
The basic rule of the European Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters1
(“the Brussels Convention”) is simple: defendants are to be sued where they are domiciled. But there is a number of exceptions to this rule. One of the most important is contained in the opening words of Art. 5(1): a defendant domiciled in one Contracting State may be sued in another Contracting State “in matters relating to a contract, in the courts for the place of performance of the obligation in question…”. A recent decision of the House of Lords, Agnew & Others
v. Länsförsäkringsbolagens AB,
2
illustrates that the meaning of the phrase “the obligation in question” in Art. 5(1) continues to present significant interpretative difficulties.
Agnew
is the sequel to an earlier decision of the House of Lords, Kleinwort Benson Ltd
v. Glasgow City Council
.3
Agnew
elucidates the ratio of Kleinwort Benson,
v. Glasgow
and suggests that the “obligation in question” has a much wider scope than was previously believed. It is an irony of litigation that neither case involved the Brussels Convention itself. The House of Lords was faced in both cases with parallel Conventions which use the same wording as the Brussels Convention but which the European Court of Justice has no jurisdiction to interpret. Kleinwort Benson
v. Glasgow
concerned the Convention which allocates the jurisdiction among the legal systems of the United Kingdom.4
Agnew
concerned the Lugano Convention.5
In both Kleinwort Benson
v. Glasgow
and Agnew,
attempts were made to refer the question of interpretation to the ECJ.6
In both cases the attempts failed.7
The House of Lords was therefore left to struggle towards an interpretation of Art. 5(1) with no direct assistance from the ECJ, though the
1. See the Civil Jurisdiction and Judgments Act 1982, Sched. 1 (as amended).
2. [2000] 2 W.L.R. 497 (Lord Nicholls of Birkenhead, Lord Woolf, M.R. and Lord Cooke of Thorndon for the majority; Lord Hope of Craighead and Lord Millett dissenting) (hereafter “Agnew”
).
3. [1999] 1 A.C. 153 (Lord Goff of Chieveley, Lord Mustill, Lord Nicholls of Birkenhead, Lord Clyde, Lord Hutton) (hereafter “Kleinwort Benson
v. Glasgow
”).
4. Civil Jurisdiction and Judgments Act 1982, Sched. 4.
5. Civil Jurisdiction and Judgments Act 1982, Sched. 3c.
6. Pursuant to the European Community Treaty, Art. 234 (ex 177).
7. In Kleinwort Benson
v. Glasgow
the ECJ itself ruled that it had no jurisdiction to interpret the statutory instrument allocating jurisdiction within the UK, even where it used the same wording as the Brussels Convention: sub nom. Kleinwort Benson Ltd
v. City of Glasgow DC (Case C-346/93)
[1995] I ECR 615. In Agnew,
the Court of Appeal refused to make a reference to the ECJ: [1997] 4 All E.R. 937 (Evans, Hobhouse, Schiemann, L.JJ.).
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