UK Law and Practice Contributed by: Clare Swirski, E. Drew Dutton, Hugo Laing and Rosamund Wood, Debevoise & Plimpton LLP
9.2 Insurance Disputes Over Jurisdiction and Choice of Law The rules applicable to disputes over jurisdiction regarding civil and commercial matters largely depend on the domicile of the defendant and the date when the proceedings were instituted. The European Regime The European regime will apply (i) where the defendant is domiciled in an EU or European Free Trade Associa- tion (EFTA) state or has a specified connection to one of these states and (ii) where the proceedings were ini- tiated in the UK on or before 31 December 2020. The “European regime” refers to the application of Council Regulation (EC) 44/2001 on jurisdiction and the rec- ognition and enforcement of judgments in civil and commercial matters, commonly known as the “2001 Brussels Regulation” (applicable to proceedings insti- tuted before 10 January 2015) and 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, commonly known as the “Recast Brussels Regulation” (applicable to proceedings insti- tuted after 10 January 2015). It also refers to the 2007
a party to the Convention by virtue of its EU member- ship. The Hague Conference on Private International Law now states that the Convention entered into force for the UK in October 2015; however, the position in this regard has yet to be definitively clarified. The Recast Brussels Regulation and Rome I Where the European regime applies, jurisdiction in matters relating to insurance is determined based on distinct reforms in Chapter II, Section 3 of the Recast Brussels Regulation, which aim to protect the so- called weaker party. Section 3 provides an exception to the general rule that a defendant should be sued in the country in which they are domiciled. Disputes over the law applicable to contracts con- cluded after 17 December 2009 are resolved based on the rules set out in Regulation (EC) 593/2008 of 17 June 2008 on the law applicable to contractual obligations, commonly known as “Rome I”. Unlike the previous European regime set out in the Rome Convention on the Law Applicable to Contractual Obligations 1980 (transposed in the UK through the Contracts (Applicable Law) Act 1990), Rome I applies to insurance contracts, except for certain life assur- ance contracts. Rome I has been incorporated into UK domestic law through UK Rome I, a retained EU Law version of Rome I with minor operational amendments that do not affect the substance of the law. In practice, this means that the English courts will continue to apply Rome I in respect of contracts entered on or prior to 31 December 2020 (ie, the end of the transition period), and UK Rome I to contracts entered into after this date. 9.3 Litigation Process Civil litigation in England and Wales is adversarial in nature. The first stage in typical court proceedings following pre-action correspondence is the issuance of a claim form, which contains the names of the par- ties, details of the claim and its value. The claimant then serves the claim form on the defendant, and must also prepare and serve the particulars of the claim, stating the facts on which it relies, the remedy sought and any other relevant information. The defendant can then choose to defend against the claim by serving a
Lugano Convention. Common Law Rules
Common law rules (i) will apply where the defendant is domiciled outside the EU and (ii) will also apply to EU- and EFTA-domiciled defendants for proceedings commenced after 31 December 2020, subject to what
is said in the following. The Hague Convention
The Hague Convention on Choice of Court Agree- ments (2005) (“Hague 2005”) applies to contracting states of the Convention and requires the court des- ignated in an exclusive jurisdiction agreement (entered after the Convention came into force) to hear the case, generally preventing courts of other contracting states from hearing parallel proceedings. As the UK joined the Convention in its own right on 31 December 2020 (rather than being bound by virtue of its EU member- ship), the view of the European Commission (as of August 2020) was that the Convention will only apply after 31 December 2020. The UK, conversely, believes it will apply from October 2015, when the UK became
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