Louise Merrett

Choice of Law in Insurance Contracts under the Rome I Regulation

The choice of law rules applicable to insurance contracts are currently found in a number of different instruments. The rules overlap and are in some cases contradictory. On any view, the current system is complex and lacks transparency. The purpose of this article is to highlight the problems with the law as it currently stands, and to compare the old rules to the choice of law rules applicable to insurance contracts which are contained in the new Rome I Regulation, Regulation No 593/2008. Before the choice of law rules themselves can be considered in detail, it is necessary to address the preliminary issue of where those rules are to be found. It will be seen that as the law currently stands identifying the correct regime to apply in an insurance case is a difficult and complex issue in its own right.

THE IMPORTANCE OF DELIVERY AND POSSESSION IN THE PASSING OF TITLE

The dilemma facing the law when two innocent parties have suffered at the hands of a wrongdoer is well known and arises acutely in the context of the sale of goods. Typically, in the classic simple three party situation: the owner of goods either gives goods to or has goods stolen by a rogueseller who purports to sell them to an innocent third party buyer. Both the owner and buyer of the goods may well have a personal claim against the seller, but if the seller has either disappeared or has no money that personal claim may well be worthless. As a result, the question of who is entitled to the goods themselves is likely to determine which party will suffer as a result of the sellers actions. The crucial issue is who in this situation is entitled to the goods: this is a question of conflict of title or priority. Who has a better title to the goods, the owner or the buyer?

WINNERS AND LOSERS: EDWARDS AND THE UNFAIR LAW OF DISMISSAL

In Edwards v Chesterfield Royal Hospital N.H.S. Foundation Trust the majority of a seven-justice Supreme Court held that a common law claim for breach of express contractual disciplinary procedures was pre-empted by the statutory right to claim for unfair dismissal. Further, they held that one express term (the notice clause) should be prioritised over another (the contractual disciplinary procedure). In this article we argue that the application of the idea of statutory “trumping” of the common law misunderstands the complex evolution of the common law in this field and its interplay with statute. We also argue that the traditional pre-eminence given to notice clauses over all other express terms needs to be reconsidered.

Posted Workers in Europe from a Private International Law Perspective

Cases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.

ARTICLE 23 OF THE BRUSSELS I REGULATION: A COMPREHENSIVE CODE FOR JURISDICTION AGREEMENTS?

Article 23 of the Brussels I Regulation gives effect to exclusive jurisdiction agreements and also sets out certain requirements which must be satisfied in relation to such agreements. The precise role of these formality requirements, however, remains controversial. In particular, the extent to which Article 23 itself sets out an exclusive and comprehensive code is unclear. The purpose of this article is to argue that the requirements of Article 23 are both necessary and sufficient conditions for the material validity of jurisdiction agreements in Brussels I Regulation cases.

Interpreting non-exclusive jurisdiction agreements

This article will argue that exclusive and non-exclusive jurisdiction clauses are in some respects more similar but conversely in other respects less similar than is currently accounted for. Both involve a party submitting to the jurisdiction of a named court or courts which means that the result in cases involving stays or service out should usually be the same. Conversely, a key difference, which is not always given proper weight, is the preclusive effect of exclusive jurisdiction agreements on foreign proceedings. This should usually lead to a different result where a party is seeking an anti-suit injunction to restrain proceedings in a non-chosen court. It is crucial to start by identifying and construing the contractual promises contained in a jurisdiction agreement, both express and implied and both positive and negative. The difference between exclusive and non-exclusive agreements lies in the complex interplay between these positive and negative aspects.

The future enforcement of asymmetric jurisdiction agreements

Asymmetric jurisdiction clauses are clauses which contain different provisions regarding jurisdiction for each party. They are widely used in international financial markets. However, the validity of this form of agreement has been called into doubt in several European jurisdictions. Furthermore, following Brexit, there may well be an increasing focus on alternative methods of enforcement under the Hague Convention and at common law, claims for damages and anti-suit injunctions. As well as considering recent developments in the case law and the implications of Brexit, this article will emphasize that all of these questions can only be answered after the individual promises contained in any particular agreement are properly identified and construed. Once that is done, there is no reason why the asymmetric nature of a clause should be a bar to its enforcement.