3.4. Stolt I – the view of the minority
The minority (two justices) agreed with the Court of Appeal that Article 2(1) was applicable. This fraction accepted that Section 3 on jurisdiction in insurance matters is self-contained. This has been established in a number of rulings by the ECJ and by legal theory. However,
"these rules cannot be more self-contained than what they provide for themselves. When Article 11(2) states that "Articles 8, 9 and 10 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted", it is, in my view, natural to take the provision at its word: If such direct actions are not permitted, Article 8 does not apply either, which is in fact the provision stating that the provisions in Section 3 - with a couple of exceptions - are exhaustive in insurance matters. The argument that such direct claims concern insurance matters within the meaning of the Convention can thus not lead to a different result. I do not see this as a restrictive interpretation of the provision" (paragraph 120).
The minority also said that the insurer could not have been sued in courts of the claimant's domicile. Such a right can only be derived from the separate provisions on insurance matters in Section 3, more specifically Article 9(1)(b) (paragraph 122).
In Article 2 there is a reservation: "[s]ubject to the provisions of this Convention". To this the minority remarked that the reservation "cannot give any other result as long as Article 11(2) reads as it does with respect to the application of Article 8" (paragraph 124).
The practical consequence of this is that Gard can be sued in the courts of the state of its domicile, in accordance with the basic rule in Article 2 (paragraph 121).
Regarding the insolvency requirement in the Insurance Contracts Act Section 7-6 the minority said:
"As emphasised by the Court of Appeal, it is also inexpedient to consider such an insolvency requirement when the court early on is to establish whether it has jurisdiction. The same may apply to any other conditions for direct action under other countries' law. The consequence of my reading of Article 11(2) is that if the action is brought in the domicile state of the P&I insurer, it is unnecessary to consider specifically the conditions for direct action as part of the review of the court's jurisdiction" (paragraph 126).
The majority considered "purpose considerations" irrelevant, but the minority found that such considerations enforced their interpretation:
"The special jurisdiction rules in insurance matters are not there to protect the insurers, but their counterparties. The intent of these rules can thus not have been that an insurer cannot even be sued in the courts of its domicile, as everyone else must accept. The ECJ's judgment December 13 2007 in Case C-463/06 Odenbreit, concerning a slightly different issue relating to the interpretation of Article 11(2), demonstrates in my view that the Court takes the provision for its word - the way I believe I do in my interpretation of the reference to Article 8 in Article 11(2) - when this is in accordance with the protective intent of the provisions" (paragraph 127).