The Procedural Position of a ‘Weaker Party’ in the Regulation Brussels Ibis

Summary

Abstract

This contribution discusses the changes introduced by the revised Regulation regarding cross-border disputes involving a policyholder, the insured or a beneficiary under the insurance agreements, a consumer or an employee. It addresses most important amendments particularly those relating to expanding the Regulation's scope of application ratione personae, adjustments of the rule on tacit prorogation and on the revised rules on enforcement that have bearing on disputes involving parties with a weaker bargaining position.

Keywords: Regulation Brussel Ibis; weaker parties; consumer disputes; insurance contracts; individual contracts of employment; jurisdiction; recognition and enforcement of judgements; lis pendens; choice of court agreements

Introduction

The jurisdictional and enforcement regime of the Brussels I Regulation1 contain provisions the purpose of which is to minimise the imbalance and to restore the bargaining position of ‘weaker’ parties in commercial legal relationships. These provisions intend to ensure that any advantage presumed or achieved by a contracting party with a dominant bargaining position will remain without legal entitlement and effect. Consequently, certain rights obtained in such legal transactions will be unenforceable against a ‘weaker party’. To this end rules on jurisdiction and enforcement are adjusted so as to enhance the position of a weaker party in proceedings before national courts. The provisions aiming at protecting a weaker party relate to disputes arising under insurance contracts, and consumer and labour disputes.

Additionally, a prorogation of jurisdiction is only valid to the extent that it complies with the special rules provided for weaker party disputes. Consequently, the courts in the EU Member States can establish jurisdiction against a weaker party defendant only on the basis of the Regulation. The applicability of national rules on jurisdiction is thereby excluded. In other words, such defendants are ‘protected’ against national rules on jurisdiction in EU Member States including exorbitant jurisdictional grounds.

The revised Regulation further enhances the level of protection of weaker parties. The present contribution addresses the major changes in that respect.