Court of Appeal decides the test under the recast Brussels Regulation for a jurisdiction agreement entered into after a dispute has arisen
The basic rule under the recast Brussels Regulation is that defendants must be sued in the courts where they are domiciled. That rule is displaced by special rules for insurance disputes (which, broadly, give policyholders more options for where to bring a claim against an insurer). However, those special rules are in turn subject to Article 15 which provides that the special rules can "be departed from only by an agreement: (1) which is entered into after the dispute has arisen...." The position is the same for employment disputes, which was the type of dispute involved in this case. The parties had entered into a settlement agreement with an express jurisdiction clause and a dispute arose as to whether that agreement was one which was "entered into after the dispute has arisen".
The Jenard Report on the Brussels Convention in 1979 considered the predecessor provision to Article 15 and set out a test for establishing when a "dispute has arisen" (although this test does not have statutory force). The test is that: (1) the parties disagree on a specific point; and (2) legal proceedings are imminent or contemplated" (emphasis added). However, there has been textbook commentary since then suggesting that the test should be modified to "both imminent and contemplated" (emphasis added). The Court of Appeal held that:
(1) In relation to the first limb of the test, there is a distinction between an actual dispute and a potential dispute and marks a divide between "a jurisdiction agreement entered after "the" dispute has arisen and a jurisdiction agreement entered by way of a precautionary measure only". On the facts of the case, the subject matter of the relevant dispute had not been communicated by one party to the other. Furthermore, the settlement agreement entered into by the parties was widely drafted (as is often the case) and so encompassed both potential and actual disputes. Accordingly, the parties had not reached an agreement about jurisdiction after the dispute had arisen and so Article 15 did not apply here.
(2) In relation to the second limb of the test, the Court of Appeal also rejected the suggested modification of a dispute being both imminent and contemplated. The postponement of the relevant date was not necessary.
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