Are the courts adept at handling complex commercial claims?
Insurance & Reinsurance
Yes. In Ireland, the jurisdiction in which court proceedings are brought depends on the monetary value of the claim. Claims with a monetary value in excess of €75,000 are heard by the High Court which has an unlimited monetary jurisdiction.
The High Court has a specialist court, the Commercial Court, which deals exclusively with commercial disputes. Proceedings are case-managed and tend to move at a much quicker pace than general High Court cases, time from entry into the list to full hearing varies between 1 week to 4 months depending on the time required for hearing. Entry to the list is at the discretion of the judge and may be refused if there has been any delay. Insurance and reinsurance disputes can be heard in the Commercial Court if:
- The value of the claim or counterclaim exceeds €1,000,000; and
- The court considers that the dispute is inherently commercial in nature.
The Commercial Court judges place a strong emphasis on mediation and the Commercial Court Rules provide for up to a four-week stay of proceedings to allow the parties to consider mediation.
The commercial court in the High Court of Justice has a long history of dealing with complex insurance claims; the experience and quality of the judiciary that will hear international insurance claims is unrivalled. The English judiciary are widely regarded as impartial and expert in commercial disputes – frequently dealing with international parties. Judges will uphold freedom of contract where parties are bound by the terms they have agreed and take an objective view of the meaning of the contract (Arnold v Britton and others  UKSC 36). The extensive guidance provided by judicial precedent provides parties with a degree of certainty as to the outcome of commercial disputes.
The courts are, generally speaking, adept at handling complex commercial claims. However, the bigger city courts are, quite naturally due to the larger volume of cases being decided and thereby the increased experience gained by the courts, better suited at handling larger complex commercial claims.
The Federal Supreme Court has a long history of dealing with complex insurance claims; a chamber specialised in insurance law has been established. Many of the district courts, dealing with insurance matters with a value exceeding EUR 5,000, have also established specialised chambers. The German judiciary are widely regarded as impartial and expert in commercial disputes – frequently dealing with international parties.
Generally, Norwegian courts are considered adept at handling complex commercial claims. This may however vary based on geography and other factors. Most complex commercial disputes are handled by the district courts in Oslo, Bergen and Stavanger, which are all highly reputed courts. Choice of venue clauses are usually included in larger commercial contracts, entailing that a vast majority of such disputes are handled by the most reputable district courts (except the disputes which are handled through arbitration).
The parties are free to choose between arbitration or civil court proceedings, save of course that both parties must agree on arbitration (either when entering into the insurance agreement or after the insurance event took place). Arbitration clauses are frequently found in insurance of large risks (including marine insurance) and reinsurance. Arbitration clauses are not binding for consumer policyholders unless the arbitration clause itself is agreed after the insurance event took place.
Insurance and reinsurance disputes are regulated by the Code of Commerce. If one of the parties breaches a contract, the non-defaulting party can initiate ordinary commercial proceedings. This judicial process has four basic stages: (i) the filing of the claim by the plaintiff and response from the defendant; (ii) the submission and presentation of evidence of any kind; (iii) the pleadings; and (iv) an award.
The parties can appeal any ruling to a higher tribunal, unless the aggregate amount is less than 574,690.47 pesos.
Each party pays its own litigation costs and the losing party might be required to indemnify the winning party, including for attorneys’ fees, subject to certain established thresholds and the decision of the court.
As a general rule, federal courts are prepared to handle complex commercial claims; however, they lack experience in handling insurance and reinsurance cases. In the case of local courts, there is uncertainty on whether a local judge will have the resources and ability to handle complex commercial cases.
While this is a matter of some relative analysis, the UAE Courts are arguably not a favorable venue for the adjudication of complex commercial disputes. The Court procedures, relying on a civil law model, are conducted in Arabic, rely on mostly written submissions and referral to court appointed experts for analysis, and do not generally provide for disclosure or witness examination. Should the dispute at bar involve extensive non-Arabic language documents of a technical nature, a need for live witness testimony and rights to cross-examination, or any probing of the adversary’s records, the downside of the UAE court procedures is evident.
The DIFC has established its own Court, with rules modeled after those of England and Wales. To the extent that the DIFC Court permits a higher level of disclosure and live witness testimony, it can be said to present a more favorable venue, particularly if the dispute is based upon English language documents. However, the DIFC Court has only been in operation since the mid 2000’s, and thus may suffer from a lack of an extended track record.
Most insurance coverage disputes are handled by state courts, although federal courts handle a significant amount of insurance disputes, often involving foreign insurers or parties from different states. The U.S. federal courts are generally considered adept at handling complex commercial claims. The level of business sophistication of the state courts varies, but some states have established commercially-focused courts within their court system to handle complex commercial claims.
Austria has a very well-functioning and reliable judiciary and the courts are adept at dealing with complex factual and legal matters. The average length of court proceedings is reasonable and the quality of decisions is usually high.
In first instance, claims will either be handled by the district courts or the regional courts, depending on the amount in dispute. Whereas claims for less than EUR 15,000 are dealt with by the district courts, claims above that threshold are dealt with by regional courts. Appeals are made either to higher regional courts, when appealing a judgment issued by the regional courts, or to the regional courts, when appealing a judgment issued by the district courts. The third and final instance is the Austrian Supreme Court.
In addition, Austria has specialized commercial courts. These commercial courts are particularly fit to handle complex commercial claims and inter alia competent to hear (re-)insurance disputes.
Not all Chilean courts are specialists with regards to complex commercial matters (including insurance), due to the fact that their purview includes a wide array of legal areas. Therefore, as general rule, complex matters are best resolved by an arbitrator.
Notwithstanding the foregoing, insurance claims must – as a general rule – necessarily be resolved by an arbitrator. The insured party may only choose otherwise and submit a claim before an ordinary court for claims involving insurance compensation amounts of less than UF 10,000 (approximately USD 400,000).
The Swiss court system is both experienced and adept at handling even complex commercial claims.
The courts in Peru are in a process of innovation that includes the training of all its agents. In this sense, we consider that the courts in Peru will obtain greater specialization as long as this process continues.
Notwithstanding the foregoing, in Peru there are alternative mechanisms for conflict resolution that allow the settlement of complex commercial claims to be made by agents outside the local courts. For example, arbitration. Arbitration is highly developed in our jurisdiction and its level of sophistication allows submitting complex controversies to the decision of a specialized Arbitral Tribunal.
Indian litigation is slow and time consuming. This is attributed to the number of reported pending cases in courts across in India, which is presently close to 30 million. In fact, the Supreme Court and Parliament have begun the process of clearing this huge backlog. The Supreme Court has issued directions to all courts across India to conclude trials within 5 years as a starting point.
In addition, the Commercial Courts, Commercial Division & Commercial Appellate Division of High Courts Act 2015, has been introduced which carves out special benches in all existing civil courts which will adjudicate commercial matters exclusively. There are fixed schedules that all commercial civil disputes need to follow and the legislation is meant to speed up the adjudication process.
The Civil Courts have a three-tier hierarchy. The hierarchy structure of the Courts is usually as follows (in ascending order): District, State, and National which comprises circa 600 District Courts, 24 High Courts and the Supreme Court of India (the highest court in India). Among the 24 High Courts, four are termed charter High Courts (i.e. Delhi, Bombay, Madras and Calcutta High Court) which have original jurisdiction to accept and hear matters which fall above certain pecuniary thresholds, exempting the District Courts from hearing these matters due to higher pecuniary limits. The rest of the District Courts have unlimited pecuniary jurisdiction, so do the competent courts of first instance to hear any insurance dispute falling under the territorial jurisdiction.
Singapore Courts have substantial expertise handling and managing complex international commercial claims. The Supreme Court of Singapore also include an International Commercial Court division which offers litigants the option of having their disputes adjudicated by specialist commercial from Singapore and international judges from both civil law and common law jurisdictions.
Courts have improved in recent years regarding the interpretation of complex insurance contract. Some major disputes occur today and the referral given by the Judiciary has been quite technical and adequate. The Superior Court of Justice ever more defines precedents in its most varied areas of insurance law An important example is the recent Court ruling on D&O insurance, published on February 14th,, 2017, which deals with the policyholder's obligation to declare risk, also denying insurance coverage in case of intentional action by the insured (Special Appeal 1.601.555/SP). It is important to note that several relevant judicial and arbitration cases will be litigated in 2017, mainly in the D&O, engineering and surety areas.
The courts frequently handle complex commercial claims.
The answer to this question is mainly negative. This is due to the fact that (1) Belgian judges do not always have the required professional knowledge of (complex) insurance law and insurance contracts, and (2) when bringing proceedings before a Belgian Court, one must take into account the fact that most judgments will not be rendered within a short period of time and might be subject to delays. This is probably why in most property, casualty, PI and D&O policies, arbitration is preferred above jurisdiction of the courts.
The Paris and Nanterre civil courts or commercial courts (“Tribunaux de Grande Instance”, “Tribunaux de commerce”) as well as the French Supreme Court (“Cour de cassation”) have a recognized experience of dealing with complex commercial claims, among which insurance claims. The case law of such courts provides useful guidance for the purposes of disputes.
Canada has a modern court system and routinely deals with complex commercial claims.