The EU Regulations on Jurisdiction and Applicable Law in Cross-Border Insurance Disputes and Their Interaction

The private international law regime of cross-border insurance disputes in the European Union comprises a regime including rules in Regulations Brussels Ibis, Rome I and Rome II as well as a number of directives, which interact with each other, with overlaps and gaps at different places. Navigating within this maze may be difficult and one may reach different and not always very consistent results. The regime’s cornerstone is the treatment of the ‘weaker’ party to the insurance dispute. However, due to their nature, insurance disputes may entangle contract and tort law issues, and various points of law may end up being governed by different substantive laws. Against this complex background, to map the regime, the current work provides a high-level review of both the jurisdictional and applicable law rules including key features of the relevant pieces of legislation from EU law delineating their applicability and fundamental concepts. We also put these against the wider background of the nature of insurance matters and the specific characteristics of cross-border disputes in that area. The study is focused on the interaction between the Regulations, how these are treated and interpreted by courts, and to what extent concepts from one Regulation may be read into another for insurance disputes. It is argued that the regime on international jurisdiction under EU law confers a wide array of jurisdictional options to potential claimants under insurance disputes—be it insureds, policyholders, injured third parties or third parties subrogated in the rights of the latter. This is based on the understanding that these weaker parties should be offered to avail themselves of a court, which is more convenient and, most likely, better connected with them and/or the circumstances of the case. In contrast, Regulations Rome I and Rome II on substantive matters do not purport to offer a myriad of potentially applicable laws, which, it is demonstrated, may be seen to favour legal certainty. The EU regime on insurance disputes seems to be not that flexible on applicable substantive law; however, corrective mechanisms allow for altering the applicable rules in line with the specific features of the case. The case law of the CJEU is studied, too, and it indicates that EU regulations should be read independently when interpreting the connecting factors contained therein. The analysed CJEU cases clearly demonstrate that the court did pull on a number of occasions the rein on the attempts to read substantive law concepts into jurisdictional regulations, which may well be for the greater good of the EU system of cross-border litigation. Following this, it appears that Regulation Brussels Ibis should be read on its own without guidance stemming from conflict rules on applicable law. The study outlines that the jurisdictional or applicable law rules may be read in a flexible way to ensure the policy end of protection of the weaker party, but not that flexible as to acquire meaning beyond what is literally put in the Regulations.