Further guidance on jurisdiction and foreign claims? Aspen Underwriting v Credit Europe Bank NV

Today and tomorrow, the Supreme Court will hear a case arising from the loss of the ship (The Atlantik Confidence) in 2013 in the Gulf of Aden. The UK-based hull underwriters had paid out under a settlement agreement but then sought recovery of the proceeds from the ship owner’s mortgagee, a bank registered in the Netherlands, arguing that the loss was misrepresented to them and actually resulted from a deliberate act by the owners. The settlement agreement contained an exclusive jurisdiction clause in favour of English courts.

The appeal raises questions of jurisdiction under the Brussels I regulation (recast) and will be heard by a panel of seven Supreme Court Justices, suggesting that wider guidance could be likely to emerge when judgment is given.

The judgment will need to consider the nature of the jurisdiction clause in the settlement agreement. If it is possible to go behind that – as the judge and the Court of Appeal both held – then it should be necessary to examine the various possible bases of jurisdiction under the recast Brussels I regulation. Among the key questions will be whether the underwriter’s claim to rescind the settlement agreement and seek damages is “a matter relating to insurance” for the purposes of the regulation, given that its article 14.1 provides an exclusive basis of jurisdiction, being that “an insurer may bring proceedings only in the courts of the Member State in which the defendant is domiciled”.

Further and intricate questions of jurisdiction also are in play, including on the claim for restitution for unjust enrichment and on the claim for damages in the tort of misrepresentation (and a report last November the specialist shipping news outlet TradeWinds News described the appeal as a “legal headache”). There is also the question of whether the bank can properly be regarded as “the weaker party” for the purposes of the special rules in the regulation.

The facts of this case are very different indeed from the road traffic accidents and holiday claims which we more commonly feature here as raising questions of jurisdiction or applicable law, such as the Keefe and Lackey claims referred to in this blog last week.  Nevertheless, the Supreme Court’s judgment in The Atlantik Confidence, whenever it emerges, it likely to be worth studying because it should be expected (a) to cover so many of the fundamentals of the Brussels I regime and (b) to include a thorough analysis of the most recent English and European case law on the regulation.

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Alistair Kinley, Director of Policy & Government Affairs alistair.kinley@blmlaw.com

 

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