Insurance and Reinsurance Dispute Resolution • in a post-Brexit Environment – • a UK Perspective • Michael Mendelowitz • General Counsel, ERGO Versicherung AG – UK Branch • 8th AIDA Europe Conference – “Landfall of the Tech Storm” • Dispute Resolution Working Party • Lisbon, 4th October 2019
Five post-Brexit questions • What law governs the agreement – and how is this determined? • In which jurisdiction can one sue or be sued? • Will forum selection clauses be honoured? • Will judgments or awards obtained in the UK be enforceable elsewhere – and vice versa? • And what are the practical implications for the UK dispute resolution system?
Preliminary observations on ADR (including arbitration) • Forms of alternative dispute resolution (including arbitration) are much less likely than litigation to be affected by Brexit • English law incorporates the provisions of the New York Convention 1958 on the recognition and enforcement of foreign arbitral awards • So there is most unlikely to be any change to the rules concerning (e.g.) validity of arbitral agreements, conduct of proceedings and reciprocal enforcement of awards • Forum selection may however be strengthened – of which more later • ADR mechanisms which depend entirely on the parties’ agreement (e.g. mediation) should not be affected at all • The remainder of this presentation therefore focuses primarily on litigation
Choice of law • Rome I and Rome II Regulations are almost certain to continue to apply, either by virtue of a withdrawal agreement (if there is one) or because their substance will be enacted in UK legislation • If the Rome Regulations are not enacted, the Contracts (Applicable Law) Act 1990 provides for implementation of the Rome Convention, whose substantive provisions are very similar to Rome I • In the vast majority of cases, the governing law will have been expressly chosen by the parties • For tort (delictual) claims, the Rome II rule (“country in which the damage occurs”) is different from that of applicable UK law (i.e. the Private International Law (Miscellaneous Provisions) Act 1995) (“country in which the events constituting the tort or delict … occur”), but (re)insurance claims are unlikely to be affected
Jurisdiction • The position in this regard is rather less certain than for choice of law • The Brussels Regulation (Recast) would continue to apply if there were to be a withdrawal agreement, but only in relation to proceedings instituted before the end of the transitional period • There is currently no agreement on either retaining or replacing the Brussels Regulation in the event of a “no-deal” Brexit • The UK would cease to be bound automatically as an EU member state by the Lugano and Hague Conventions, but could – and probably would – seek to accede to those conventions in its own right (albeit for Lugano an invitation from an existing contracting state would be needed) • The effect would be (inter alia) that exclusive English jurisdiction clauses would be upheld throughout the EU except for insurance disputes involving policyholders, insureds or beneficiaries of insurance
Honouring forum selection • There will probably be no change to the current rules as regards competing lawsuits in different jurisdictions: in short, the “court first seised” rule will presumably continue to apply • What could (and probably would) change however is the abolition of the “Italian torpedo” in arbitral proceedings (see Allianz v West Tankers): unless the Brussels Regulation is retained, English courts would once again be able to grant anti-suit injunctions against EU defendants who tried to escape English arbitration clauses by suing in another EU court • English parties to arbitration agreements would therefore not (as now) need to resort to other indirect devices, such as claiming damages or declarations, in order to enforce arbitral awards in conflict with foreign judgments
Enforcement of judgments and arbitral awards • Does it matter in practice? • There appear to be no empirical data on the proportion of UK judgments in (re)insurance matters requiring enforcement in the EU (or vice versa), but the absence of market concern suggests the figure is very low • Anyway, if the Brussels Regulation ceased to apply and was not replaced with an alternative EU-UK agreement, the Foreign Judgments (Reciprocal Enforcement) Act 1933 would revive in relation to a number of EU member states, pursuant to treaties predating the Regulation • In the absence of treaties, the Common Law (or national laws of other countries) would determine how foreign judgments were to be enforced • And (as mentioned earlier) the New York Convention would continue to govern the recognition and enforcement of arbitral awards
… and other practical considerations • Can the UK (or London) retain its pre-eminence as a centre for the resolution of (re)insurance disputes post-Brexit? • For: • English remains the international lingua franca of business • English law provides certainty, predictability and fairness • The quality of judges, London market arbitrators, experts and lawyers • Against: • Political and economic rivalry; could professional restrictions prevent EU lawyers from advising or acting for parties in UK proceedings? • Comparative cost • And possibly less serious – but nonetheless annoying – consequences such as longer queues at UK Border Control • Certainly, practitioners in the UK dispute resolution system cannot afford to rest on their laurels
Discussion • “Versichern heißt verstehen” • – but do we understand the consequences of Brexit sufficiently clearly to protect our own businesses • adequately against them?