Insurance And Reinsurance Weeky Update - 13 January 2015

Welcome to the first edition of Clyde & Co's (Re)insurance and litigation caselaw weekly updates for 2015.

These updates are aimed at keeping you up to speed and informed of the latest developments in caselaw relevant to your practice. Please follow this link for further details of the following recent cases:

Regulation 44/2001 was replaced by Regulation 1215/2012 on 10 January 2015.

A summary of the new Brussels Regulation, which came into force on 10 January 2015.

This week's caselaw

Vestergaard v Bestnet Europe A case on whether joint without prejudice privilege attaches to the first offer.

Barnett v Creggy A judge considers a limitation defence and acknowledging a debt, as well as the appropriate rate of interest on a judgment in US dollars.

JSC Mezhdunarodniy Bank v Pugachev A case on reliance on hearsay evidence in a freezing order application and proving the risk of dissipation.

Public Joint Stock Company v Maksimov A judge disapproves of a contempt of court application following the breach of a freezing order.

Regulation 44/2001 was replaced by Regulation 1215/2012 on 10th January 2015.

The main points under the new Regulation are as follows:

(1) Regulation 1215/2012 restates the arbitration exception and confirms that proceedings relating to arbitration fall outside of its scope. As a result it clarifies that any court proceedings brought in order to support an arbitration (including enforcing or challenging an award and deciding the validity of an arbitration agreement) fall outside the scope of the Regulation, and hence a court which is not first seised can decide these matters, despite the risk of parallel judgments. If, for example, the agreement between the parties provides for London arbitration but one party commences court proceedings in Italy, and the Italian court then finds that there is no valid arbitration agreement and goes on to rule on the underlying merits of the case, that judgment must still be recognised and enforced by other EU courts. However, if the English court finds that the arbitration agreement is binding and the arbitrators eventually make an award, it is not currently clear whether the Italian judgment or the award will take precedence. Recital 12 of the Regulation suggests that the award might take priority, but does not expressly state this.

(2) The EU court named in an exclusive jurisdiction clause can hear the case, even if it is not the court first seised in the EU now. Other EU courts must stay their proceedings if the court named in the clause determines that it does have jurisdiction. The court named in the exclusive jurisdiction clause can hear the case even if the court first seised has not yet decided on a stay.

(3) A jurisdiction clause will fall within the scope of the Regulation even if neither party is domiciled in the chosen EU state or any other EU state. So, for example, if the English court is chosen to have jurisdiction, permission to serve out will not now be required even if neither party is domiciled in the EU (but if proceedings are ongoing in another EU country, permission will be required if the jurisdiction clause is not...