Lloyd's Maritime and Commercial Law Quarterly
MATTERS RELATING TO INSURANCE AND PROTECTING THE WEAKER PARTY
Yvonne Baatz*
KABEG;
The Atlantik Confidence;
Assens v Navigators (The Sea Endeavour I)
1. Introduction
Special rules on jurisdiction “in matters relating to insurance” apply to protect a weaker party who seeks to sue an insurer or its branch, agency or other establishment in an EU Member State.1 Recent decisions consider where a claimant can sue and, in particular, when a party will be considered “a weaker party” so that it can benefit from such rules, and when a jurisdiction clause will be binding. These decisions are of immense significance not only to insureds and their insurers in determining where an insurer may be sued in an EU Member State, but also to third parties such as parties exercising subrogated rights and/or bringing a direct action against an insurer. The latter needs to know whether it can rely on any jurisdiction clause in its insurance policy or whether this can be ignored.
This Comment discusses two important recent decisions of the European Court of Justice (“the ECJ”)2 and an English decision of Teare J. The first decision of the ECJ considers which third parties standing in the shoes of the insured, such as a third party exercising subrogated rights, constitute a weaker party and are thus protected in a direct action: Landeskrankenanstalten-Betriebsgesellschaft – KABEG v Mutuelles du
* Professor of Maritime Law and Member of the Institute of Maritime Law, University of Southampton.
1. Section 3 of Chapter II of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (“the Recast Jurisdiction Regulation”), which applies to legal proceedings instituted on or after 10 January 2015 (Art.66). The Recast Jurisdiction Regulation applies to all the EU Member States, including Denmark, according to the agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2013] OJ L 79/4. Section 3 of Chapter II of Council Regulation (EC) No 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (“the Jurisdiction Regulation”) applies to proceedings commenced before 10 January 2015 and applies to all the EU Member States, including Denmark, according to the agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters which entered into force on 1 July 2007 [2007] OJ L 94/70.
2. The Court of Justice of the European Union (previously of the European Communities).
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