Summary:
The subject of this thesis relates to the protection of the weak party within the context of international jurisdiction. Specifically, the focus lays on insurance contracts, where protection is appropriate and necessary to be provided to the policy-holder and the beneficiary. In respect to the above, Regulation 1215/2012, its predecessors and the Lugano Convention are mainly examined.
In first place, it is examined whether the protective character of allocation of jurisdiction on insurance matters is in fact attributed to the right to a fair trial and in particular to the right to an effective access to justice. In this case, it could be assumed that the jurisdictional foundation of an effective access to justice only applies when the weak party is necessary and appropriate to be protected. The weak party in the context of insurance contracts is both necessary and appropriate to be protected through rules conferring jurisdiction to a favorable forum. Otherwise, the weak party would be facing a form of denial of justice, due to its economic and legal imbalance against the insurer. Thus, the domicile of the weak party possesses the most important position as a connective factor in relation to the allocation of jurisdiction between Member States (or States with respect to the Lugano Convention), regardless of the procedural position of the weak party.
Subsequently, the established rules conferring jurisdiction are considered with respect to other jurisdictional foundations and with respect to certain principles of the civil trial. Thus, on the one hand, the jurisdictional foundation of an effective access to justice is linked to that of proximity. On the other hand, it is demonstrated that the principles of procedural economy, judicial function and avoidance of irreconcilable decisions continue to govern the autonomous subsystem of the jurisdictional rules concerning.
In a more specific context, forum actoris is considered, especially its rationae personae application, whose historical expansion is mentionable and possibly not necessary. In this regard, the jurisdictional foundation of an effective access to justice is justifying the exception from the general principle actor sequitur forum rei and hence the foundation of forum actoris in the cases in question.
Moreover, the limits of the procedural protection provided are determined. These limits are drawn when the need to protect the weaker part is either in lack or in decline. In the first case, the relevant cases are excluded from the scope of application of the autonomous sub-system of the Regulation on jurisdiction in civil and commercial matters (or the Lugano Convention); for instance in the case of multiple insurances or reinsurance. In the latter case (decline of the need for protection), reference is made to the introduction of the jurisdictional foundation of the parties' freedom, as expressed in the form of prorogation clauses.
Finally, the allocation of jurisdiction in the examined cases merits a positive assessment, even though there are many points that could be critically addressed. Such criticism concerns mainly the disregard of the right to an effective access to justice as jurisdictional foundation of the autonomous subsystem of the Regulation on Jurisdiction on commercial and civil matters.
Keywords:
Private International Law, International Jurisdiction, International Procedural Law, Regulation 1215/2012, Brussels Convention, Private Insurance
