and jurisdiction and arbitration clauses, whose question is: would it be possible to apply them to an insurer, having been concluded prior to the insurance contract, without the consent of the insurer? We believe not, because the law of arbitration requires the free will of the parties to agree to the removal of the state jurisdiction. As the insurer did not participate in this decision, the constitutional guarantee of the inalienability of the jurisdiction of the common justice would be hit. The Superior Court of Justice has recognised (REsp 1.962.113/RJ) that the institute of subrogation does not transmit procedural issues. This issue is not unanimous abroad. The Federal Court of Justice of Germany (Bundesgerichtshof) has already faced this question (BGHZ 68, 356) and has also ruled to the effect that the arbitration clause, by removing the natural judge, is not enforceable against those who are not its signatory. The courts of the United States are mentioned in this condition in the policy automatically excludes them from the effects of any subrogation. However, it is worth noting here that they cannot intentionally cause a claim. In certain cases, the penalty for this could even mean refusing to pay compensation. What other factors may complicate a subrogation? There are several factors stemming from the original contracts taken to insurance which can complicate subrogation. In fact, limiting clauses in the contracts previously concluded between the insured and third parties (service and goods providers), such as limitation of value or exclusion of lost profits from eventual compensation, are quite common. These limits are not valid for the insurer, who finds himself in the contingency of receiving less in subrogation than he paid for the indemnification of the claim. There is also the election of applicable law 78 LAWYER MONTHLY JUNE 2023 It is an essential obligation of the insured to collaborate with its insurer for the analysis of the cause and to the extent of the damages, as well as for the identification of its cause and its causative agent.
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