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INTERNATIONAL PRIVATE LAW

Lloyd's Maritime and Commercial Law Quarterly

INTERNATIONAL PRIVATE LAW

Anthony Kennedy*

CASES

280. Aspen Underwriting Ltd v Credit Europe Bank NV (The Atlantik Confidence) 1

Insurance—jurisdiction—“matters relating to insurance”

The claimant insurer had provided a hull and machinery insurance policy, containing an exclusive English jurisdiction clause, on the vessel. The defendant bank, domiciled in the Netherlands, funded the refinancing of, inter alia, the vessel and took mortgages over it and assignments of the insurance policy. The assignments identified the defendant as the mortgagee, the assignee and the loss payee. The vessel subsequently sank and the claimant then entered into a settlement agreement with the owners and the manager of the vessel and paid out under the policy. The claimant later discovered that the vessel had been sunk deliberately. It therefore commenced proceedings in England, seeking, insofar as is presently material, restitution of the sums paid out.
The defendant challenged the jurisdiction of the English court. The Court of Appeal concluded, in essence: the defendant was not bound by the exclusive jurisdiction clause; and, while the claimant’s claims were “matters relating to insurance” and so fell within Art.14 of Regulation 1215/2012,2 the defendant was not entitled to the protection afforded by that provision because it was not a “weaker party” compared with the claimant.
Both the claimant and the defendant appealed to the Supreme Court, which had to consider three central issues:
  • (i) whether the English court had jurisdiction on the basis of the exclusive jurisdiction clause contained in the policy;
  • (ii) whether the claimant’s claims against the defendant were “matters relating to insurance” for the purposes of the Recast Brussels I Regulation; and
  • (iii) if they were, whether the defendant was entitled to the protection afforded by the Recast Brussels I Regulation, Art.14.
* Lecturer in Commercial Dispute Resolution, BPP Law School.
1. [2020] UKSC 11; [2020] 1 Lloyd’s Rep 520; [2020] 3 All ER 907 (SC: Lady Hale, Lords Reed, Kerr, Hodge, Lloyd-Jones, Kitchin and Sales) (hereafter, “Aspen”); noted J Folkard (2020) 79 CLJ 427; P Dunn-Walsh [2021] LMCLQ 27; rvsg (in part) [2018] EWCA Civ 2590; [2019] 1 Lloyd’s Rep 221 (CA: Gross, Moylan and Coulson LJJ).
2. Hereafter, the “Recast Brussels I Regulation”.
International Private Law

137

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