Is your legal expenses insurer refusing to help because your dispute has a foreign element? Check separately in which countries you are covered, which law applies and which court has jurisdiction. These are different questions. A foreign opposing party does not automatically mean that your case falls outside the policy.
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Written by Onur Arslan, attorney at Arslan Advocaten. Onur Arslan practised for many years as a corporate lawyer and insolvency trustee (curator) and has extensive experience in financial law disputes. Do you have questions about your own situation? Get in touch.
What does the policy say about the territorial scope?
A policy may have a different territorial scope for each module. Traffic cases during a holiday may be covered more broadly than a dispute about a property or an employment contract abroad. The conditions may also require that a court in a particular country has jurisdiction or that the law of a particular country applies.
Ask for the specific policy clause and the facts on which the refusal is based. Make sure the version of the policy in force on the relevant date is used. A general web page about worldwide cover says too little about the terms of your own contract.
Foreign opposing party, purchase or place of residence
With an online purchase, the seller may be established abroad while consumer protection rules still offer protection in the Netherlands. After an accident abroad, several insurers and claims settlement routes may be involved. Moving abroad may in turn affect the question of who still counts as an insured person.
Therefore draw up an overview of the countries, parties, agreement, event and places of residence involved. Add the jurisdiction and choice-of-law clauses if a contract contains them. Their validity and meaning must be assessed; the mere presence of a clause does not always decide the matter.
Choosing a foreign lawyer
If judicial or administrative proceedings are at issue in a covered case, the free choice of a qualified legal representative may become relevant. The right to choose and the reimbursement of costs are separate issues. The insurer may ask for a budget and for arrangements about the instruction.
Ask in advance who will instruct the foreign lawyer, what cost ceiling applies and whether translations, travel, court fees and local experts fall within it. A Dutch lawyer is not automatically authorised to act in every respect before a foreign court. Cooperation with a local lawyer may be necessary.
The European framework for legal expenses insurance is set out in Directive 2009/138/EC, Articles 198 to 205. That framework does not make every foreign dispute insured: the substantive cover under your policy remains a separate assessment.
How do you challenge the refusal?
Explain why, in your view, the insurer has wrongly assessed the territorial scope, the applicable law or the competent court. Enclose the relevant contracts and correspondence. Ask for a reasoned reconsideration and mention any urgent foreign deadlines.
A disputes procedure (geschillenregeling) on the prospects or approach of the main case is not automatically the route for a disagreement about territorial cover. A complaint about cover may require a separate assessment or procedure. In the meantime, the deadlines in the foreign case must be protected. Do not wait for the Dutch insurance complaint to be concluded before doing so.
Frequently asked questions
Is Europe always covered?
No. The scope differs per policy and module. Also check any conditions regarding the applicable law and the competent court.
Can I pay a foreign lawyer myself in the meantime?
That may be necessary in practice, but reimbursement afterwards is not guaranteed. If time allows, ask in advance for a written decision on the instruction and the costs.
Are translation costs included?
That depends on the policy and the instruction. Include them separately in the budget.
Can Arslan help with the insurer’s refusal?
We can assess your position under the Dutch insurance policy and examine how the main case and any local assistance fit in with it.
Also read about refused legal expenses cover, filing a complaint and a second opinion.
Have the refusal of your foreign legal expenses case assessed.
This page provides general information and is not legal advice on your own situation. No rights can be derived from its content.
