Matters relating to insurance and protecting the weaker party

KABEG; The Atlantik Confidence; Assens v Navigators (The Sea Endeavour I) 1. Introduction Special rules on jurisdiction “in matters relating to insurance” apply to protect a weaker party who seeks to sue an insurer or its branch, agency or other establishment in an EU Member State. 1 Recent decisions consider where a claimant can sue and, in particular, when a party will be considered “a weaker party” so that it can benefit from such rules, and when a jurisdiction clause will be binding. These decisions are of immense significance not only to insureds and their insurers in determining where an insurer may be sued in an EU Member State, but also to third parties such as parties exercising subrogated rights and/or bringing a direct action against an insurer. The latter needs to know whether it can rely on any jurisdiction clause in its insurance policy or whether this can be ignored. This Comment discusses two important recent decisions of the European Court of Justice (“the ECJ”) 2 and an English decision of Teare J. The first decision of the ECJ considers which third parties standing in the shoes of the insured, such as a third party exercising subrogated rights, constitute a weaker party and are thus protected in a direct action: Landeskrankenanstalten-Betriebsgesellschaft – KABEG v Mutuelles du