Judge considers whether a jurisdiction agreement was made "after the dispute has arisen"
The recast Brussels Regulation 1215/2012 provides for special jurisdictional rules in the case of direct insurance contracts but Article 15(1) provides that those rules may be departed from where (inter alia) there is an agreement which is entered into "after the dispute has arisen".
This case involved an employment contract, but an identical provision to Article 15(1) applies to the special rules for such contracts, and the issue in this case was what is meant by "after the dispute has arisen" (the judge confirmed that the answer to that question would apply equally to insurance contracts). This issue has not previously been considered by the English courts.
Referring to the Jennard report (which is a commentary on the Brussels Convention, which contained a predecessor to Article 15(1)) and further textbook commentary, the judge concluded that the correct interpretation was as follows: "a dispute will have "arisen" if and only if: (a) the parties have disagreed upon a specific point, and (b) legal proceedings in relation to that specific point of disagreement are imminent or contemplated". There is no "dispute" just because the parties are aware of circumstances which could potentially give rise to a claim: "A dispute will not have arisen for these purposes unless and until the subject-matter of the claim has been communicated by one party to the other". Furthermore: "It seems to me that it is sufficient if the parties are positively choosing the forum in which their specific existing dispute may eventually have to be resolved, even if they are merely choosing it as a last resort after other methods – negotiation, mediation etc - have first been tried and failed".
COMMENT: As the judge noted, it is common for settlement agreements to settle not just the claim in dispute but also all potential claims (whether known or unknown at the time of the settlement). The effect of this judgment is that jurisdiction clauses in such settlement agreements (in an insurance, but not a reinsurance, context) will only apply to the specific contemplated or imminent claim in dispute between the parties, and not any other claims (which will still be governed by the special jurisdictional rules), no matter what the express wording of the agreement says.
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