Keywords
Summary

Keywords

Convention on Jurisdiction and the Enforcement of Judgments – Jurisdiction in matters relating to insurance – Prorogation of jurisdiction – Jurisdiction clause agreed between a policy-holder and an insurer both domiciled in the same Contracting State – Unenforceable against a beneficiary who did not subscribe to that clause and is domiciled in another Contracting State

(Brussels Convention of 27 September 1968, Art. 12(3))

Summary

A jurisdiction clause conforming with Article 12(3) 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, by the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic and by the Convention of 29 November 1996 on the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, being a provision that allows a policy-holder and an insurer who, when the contract is entered into, are domiciled or habitually resident in the same Contracting State to confer jurisdiction on the courts of that State, even where the harmful event may occur abroad, cannot be relied on against a beneficiary under that contract who has not expressly subscribed to that clause and is domiciled in a Contracting State other than that of the policy-holder and the insurer.

First, the enforceability of such a clause would deprive that beneficiary of the opportunity to bring proceedings before the courts for the place where the harmful event occurred or to bring proceedings before the courts of his own domicile, by compelling him to pursue the enforcement of his rights against the insurer before the courts of the latter’s domicile, and, second, it would enable the insurer, in proceedings against the beneficiary, to have recourse to the courts of his own domicile. The result of such an interpretation would be to accept a conferral of jurisdiction for the benefit of the insurer and to disregard the aim of protecting the economically weakest party, in this case the beneficiary, who must be entitled to bring proceedings and defend himself before the courts of his own domicile.

(see paras 32, 39-40, 43, operative part)