The Action of the Insurer Brought Against the Weaker Party

The protection of the weaker party in matters relating to insurance consists of several elements. It is realised by mandatory rules and the provisions of the substantive law may be departed from only for the benefit of the weaker party. The rules of private international law complement and reinforce this protection which consists of two parts. On the one hand, it must be ensured that the weaker party can bring a lawsuit under the most favourable conditions and, on the other hand, he cannot be sued under foreign circumstances. The typical case is that the weaker party sues the insurer and it is quite rare that the insurer sues the weaker party because the substantive insurance norms reduce the chances of the insurer going to court. According to them, if the weaker party breaches the contract the insurer is normally entitled to terminate the contract (or it terminates automatically) and to refuse to pay the sum insured. This regulation already protects the weaker party from being sued. However, there are some situations when the insurer does sue the weaker party. For example, if the insurer later discovers that an unauthorised insurance payment has been made and wants to claim it back from the weaker party. This is why the actions of the insurer brought against the weaker party shall be regulated by private international law as well. As the history of the current multilateral regulation the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter the Brussels Convention) shall be mentioned. It already contained essentially the same rules about the actions of the insurer brought against the weaker party as today’s legislation. Accordingly, the relevant rules of the Brussels Convention have been taken over by the Brussels I Regulation and incorporated into the current legislation which is the Brussels Ia Regulation. In the following, the relevant provisions of the Brussels Ia Regulation will be analysed. As the legislation has not changed, the interpretation will be based on the case law of the Brussels Convention and the Brussels I Regulation as well. Although multilateral rules are the most important, private international law is made up of several levels. However, it is not possible to cover these additional elements in detail in this chapter. Therefore, only a few brief examples are given about the national regimes at the end of the chapter.