Harmonization of Laws
- Elgar European Law series
Chapter 5: Protected Contracts
5. Protected contracts INTRODUCTION Chapter II of the Brussels I Regulation lays down special rules on jurisdiction in respect of three types of contract: insurance contracts,1 consumer contracts,2 and contracts of employment.3 As the European Court has recognized,4 these provisions are inspired by a concern to protect the party who is expected to be economically weaker and less experienced in legal matters than the other party to the contract. Similarly Recital 13 explains that, in relation to insurance, consumer contracts and employment, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules provide for. Accordingly these provisions offer the weaker party (the policyholder, consumer or employee) a wide choice of fora in which to sue the stronger party (the insurer, supplier or employer), while limiting the fora in which the stronger party can sue the weaker party, and invalidating contrary agreements in respect of future disputes save in exceptional cases. Moreover, in the case of insurance and consumer contracts (though, perhaps surprisingly, not in the case of employment contracts), the protective policy is reinforced by Article 35, which prevents the recognition and enforcement of judgments under Chapter III where the original court accepted jurisdiction in contravention of the protective provisions.5 In general the protective provisions apply only when the defendant is domiciled in a Member State. Thus, if the defendant is not domiciled within the Member States, jurisdiction in respect of these contracts is usually remitted by Article...
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