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Tables of Contents for Insurance in Private International Law
Chapter/Section Title
Page #
Page Count
Table of Cases
xxvii
Table of Abbreviations
xxix
Part I. The Substantive Law Background in Europe and its Significance for Private International Law
1. The substantive law in Europe
3
18
1. Introduction
3
1
2. The EU Insurance Market
3
1
3. The Treaty of Rome
4
4
(a) Establishment
5
1
(b) The Freedom of Services
6
1
(c) Establishment v Services
7
1
(d) Harmonisation
7
1
4. The 1993 Unfair Contract Terms Directive
8
1
5. Reinsurance
9
1
6. The First Non-Life Insurance Directive
9
1
(a) Scope
9
1
(b) Authorisation Requirements
10
1
(c) The Definition of Establishment
10
1
7. The First Life Insurance Directive
10
1
(a) Scope
10
1
(b) Authorisation Requirements
11
1
(c) The Simultaneous Operation of Life and Non-life Insurance
11
1
8. The Co-insurance Directive
11
1
(a) Scope
11
1
(b) The Co-insurance Directive and the Insurance Cases
12
1
9. The Second Non-Life Insurance Directive
12
2
(a) Scope
12
1
(b) Large Risks and Mass Risks
12
1
(c) Member State where the Risk is Situated
13
1
(d) Supervisory Systems
13
1
10. The Second Life Insurance Directive
14
1
(a) Scope
14
1
(b) Policyholders
14
1
11. Insurance Companies from Third Countries
15
1
12. The Third 'Generation' Insurance Directives
15
1
13. The Third Non Life Insurance Directive
16
1
(a) Scope
16
1
(b) The Single Authorisation System
16
1
(c) The extension of Home Member State Control
16
1
14. The Third Life Insurance Directive
17
1
(a) Scope
17
1
(b) The Single Authorisation System
17
1
(c) The Extension of Home Member State Control
17
1
15. The 'General Good' in the Third Insurance Directives
18
1
16. The European Substantive Law for Insurance Intermediaries
18
1
17. Are the EC Directives Pro-insureds?
19
2
2. The Significance of the Substantive Law Background for Private International Law
21
6
1. Identifying the Problems
21
6
(a) What Sort of Jurisdictional Problems Are There Going to be in Europe?
21
1
(b) Where Are There Going to be Choice of Law Problems in Europe?
22
1
(c) The Interaction of European Union Law and Conflict of Law: the Disappearance of Potential Applicable Law Problems
23
2
(d) Conclusion
25
2
3. General Remarks on Insurance Conflict of Laws
27
10
1. The Major Importance of Choice of Law Questions in Insurance Law
27
1
2. Policy Considerations: What Has to be Achieved by Private International Law Rules in the Fields of Insurance and Reinsurance?
28
5
(a) Providing a Range of Comparable Offers to Prospective Insureds
28
1
(b) Ensuring Compatibility with the Substantive Law of Insurance
29
1
(c) Preventing Insurers from Achieving Unreasonable Competitive Advantages
30
1
(d) Empowering Insurers to Form Risk Pools Comprising Inhabitants of Different Member States of the European Union
31
1
(e) Allowing Parties to Predict the Law Applicable to their Legal Relationship
31
1
(f) Protecting the Interest of the Parties in Continuity of Cover
32
1
3. Policy Issues: the Connecting Factors
33
1
(a) Introductory remarks
33
1
(b) An Exposition of Certain Connecting Factors of Relevance in Insurance and Reinsurance Contexts
34
1
4. Specific Features of Conflicts Rules in International Insurance Law
34
3
4. Admission of Insurance and Reinsurance Services and Products to the EU Market-Conflict of Laws Issues
37
8
1. Introduction
37
1
2. Admission of Insurance and Reinsurance Services and Products
37
1
3. Communication
38
1
4. Other Issues
39
1
5. Liability
40
1
6. The Impact of New Technologies on the Admission of Insurance and Reinsurance Products to the EC Insurance Market
41
2
(a) Disintermediation
42
1
(b) Delocalisation of Insurance and Reinsurance Markets
43
1
7. Final Remarks
43
2
Part II. Jurisdictional Recognition and Enforcement of Judgments Problems and Possible Solutions
Section I. Jurisdictional Problems and Possible Solutions: Preliminary Observations
45
22
5. The special rules of the Brussels Regulation and Lugano Convention for insurance and reinsurance disputes
49
18
1. Which Set of Rules will Apply in Insurance Cases?
49
2
(a) The Availability of a Defendant Domiciled in Europe
50
1
(b) Multi-defendant Cases
50
1
2. Jurisdiction under the Brussels and Lugano Conventions
51
1
(a) The Set of Special Rules for Insurance Matters
51
1
(b) Jurisdiction in Matters Relating to Insurance
52
5
(c) Actions Against Insurer: Article 9(1)
57
1
(d) Actions Against Insurer: Article 9(2)
58
1
(e) Actions Against Insurer in Matters Relating to Liability Insurance or Insurance of Immovable Property
59
1
(f) Third Party Proceedings against Insurers
60
1
(g) Action by Insurers
61
3. The Objectives of the Special Rules for Jurisdiction Agreements in Insurance and Reinsurance Matters
52
19
(a) The Requirements for Jurisdiction Agreements
53
14
Section II. Cross-border Co-operation Regarding Litigation in Insurance and Reinsurance Matters: Preliminary Observations
67
24
6. Recognition and Enforcement of Judgments in Insurance and Reinsurance Matters
71
8
1. When will the Brussels Regulation and Lugano Convention apply?
71
1
(a) The Brussels Regulation
71
1
(b) The Lugano Convention
71
1
2. The Scope of the Brussels Regulation
72
1
(a) A Judgment Given in a Member State
72
1
(b) The Type of Jurisdiction Provision is Irrelevant
72
1
(c) The Judgment is Given in Respect of a Civil and Commercial Issue
72
1
3. Recognition of the Foreign Judgment
73
2
(a) An Indispensable First Stage
73
1
(b) The Rebuttable Presumption in Favour of Recognition
73
2
4. How Problems Arise in Insurance and Reinsurance Cases
75
4
(a) Recognition and Enforcement by EU National Courts of Judgments Rendered by other EU National Courts
75
1
(b) Recognition and Enforcement by EU National Courts of Judgments Rendered by Courts of a Non-Member State Against the UK Defendant
76
3
7. Forum shopping
79
12
1. Introduction
79
1
2. Reasons to Forum Shop
79
1
3. Forum Shopping Within the European Community in Insurance Cases
80
17
(a) What Advantages Will a Claimant Obtain?
80
3
(b) The Opportunity to Forum Shop
83
1
(c) Is there Anything Wrong with Forum Shopping within Europe?
84
1
(d) How Can the Insured/Claimant be Discouraged from Forum Shopping?
84
Part III. The Law Applicable to Insurance and Reinsurance Contracts under the 1980 Rome Convention and the EC Insurance Directives
8. The 1980 Rome Convention and the Law Applicable to Insurance and Reinsurance Contracts
91
40
1. Which Set of Rules will Apply to Insurance and Reinsurance Contracts?
91
1
2. The Definition of 'Risk' in the Rome Convention
92
1
3. Law Applicable to the Insurance Policy
93
1
4. The Express Choice of the Law Applicable to Insurance and Reinsurance Contracts
94
3
5. Does the Lex Mercatoria Apply to Reinsurance Contracts and Insurance Contracts Covering Risks Situated Outside the Territories of the Member States of the European Community?
97
1
(a) The Notion of Lex Mercatoria
97
1
(b) The Applicability of Lex Mercatoria
98
1
6. Dépeçage of Insurance and Reinsurance Contracts
98
2
7. The Law Applicable to Insurance and Reinsurance Contracts in the Absence of an Express Choice
100
1
8. The Law Applicable to Insurance and Reinsurance Contracts in the Absence of Choice
101
1
9. The Characteristic Performance of Insurance and Reinsurance Contracts
102
3
10. The Rome Convention and the Law Applicable to Co-insurance Contracts
105
1
11. The Law Applicable to Insurance Contracts Concluded by Consumers
106
2
12. The Law Applicable to Multiple Risks Policies
108
1
13. Evasion of Law
109
1
14. The Application of Mandatory Rules to Insurance and Reinsurance Contracts
110
2
15. Public Policy Questions
112
1
16. The Sphere of the Lex Contractus 'Ratione Materiae': Article 10(1)
113
1
17. The Law Applicable to the Formation and the Validity of Insurance and Reinsurance Contracts
114
1
18. Article 8 of the Rome Convention: the Formation of the Insurance Contract
114
1
19. Article 8 of the Rome Convention: the Validity of the Insurance Contract
115
1
20. The Law of the Place of Performance (lex loci solutiones) and Insurance and Reinsurance Contracts
116
1
21. The Law Applicable to the Interpretation of Insurance and Reinsurance Contracts
117
1
22. The Sphere of the Law Applicable to the Insurance Contract 'Ratione Personae'
118
1
23. The Law Applicable to the Form of Insurance and Reinsurance Contracts
118
2
24. The Impact of Articles 9 (Form) and 14 (Burden of Proof) on the National Rules of Insurance Contracts: Example of Impact on Civil Law Systems
120
1
25. The Law Applicable to the 'Direct Action' of the Victim Against the Insurer of the Person Liable
120
1
26. The Law Applicable to the Subrogation of the Insurer
121
1
27. The Relationship Between Articles 13 (Subrogation) and 6 (Individual Employment Contracts)
122
1
28. The Law Applicable to Insurance Warranties
123
1
29. Renvoi
124
1
30. Incapacity
125
1
31. Voluntary Assignment of Credits
125
1
32. Evaluation
126
2
(a) Strengths of the Rome Convention in Relation to Insurance and Reinsurance Contracts
126
1
(b) Weakness of the Rome Convention in Relation to Insurance and Reinsurance Contracts
127
1
33. Options for Reform
128
3
(a) The US Restatement (Second) Conflict of Laws
128
1
(b) A Special Rule for the Consumer Contracts of Insurance Services?
128
1
(c) Re-wording Article 5
129
2
9. The Choice of Law Rules in the Second and Third Non-Life Directives
131
34
1. Introduction
131
1
2. Scheme of the Set of Choice of Law Rules in the Second and Third Non-Life Directives
131
1
3. Scheme of the Choice of Law Rules in the Second Non Life Insurance Directive
132
1
4. Scheme of the Choice of Law Rules in the Third Non Life Insurance Directive
132
1
5. The Definition of 'Mass Risks' and 'Large Risks'
133
2
I. The Choice of Law Rules in the Second Non-Life Insurance Directive
135
1
6. The Scope of Application
135
2
(a) Is the Establishment of the Insurer in a Member State of the European Community Necessary for the Application of the Choice of Law Rules of the Second Non-Life Directive?
135
2
(b) Are the Choice of Law Provisions of the Second Non-Life Directive Applicable to Insurance Contracts Beyond the Scope of Application of the Non-Life Insurance Directives?
137
1
7. The Problem of Characterisation in the Insurance Directives
137
1
8. The Law Applicable to Insurance Contracts Covering Risks Situated in the Member State Where the Policyholder has his Habitual Residence or its Central Administration
138
1
9. The Law Applicable to Insurance Contracts Covering a Risk Situated in a Member State Where the Policyholder is not Habitually Resident
139
1
10. The Law Applicable to Insurance Contracts Covering Risks Situated in Different Member States
140
1
11. Where the Member States Indicated in Article 7(1) (b) and (c) Grant the Parties Greater Freedom to Choose the Governing Law of the Contract
141
1
12. The Law Applicable to Insurance Contracts Covering Risks Which are Limited to Events Occurring in One Member State Other Than the One in Which the Risk is Situated
142
1
13. The Law Applicable to Insurance Contracts Covering 'Large Risks'
142
1
14. The Law Applicable in the Absence of a Choice or a Valid Choice
143
1
15. Dépeçage
144
1
16. The Law Applicable to Insurance Contracts Covering Risks Situated in and Outside the Territories of the Member States of the European Community
145
1
17. The 'General Provisions of Private International Law': Article 7(3)
146
1
18. Does Article 5 of the Rome Convention Apply to the Insurance Contracts Referred to by the Second Non-Life Directive?
147
1
19. Mandatory Rules: Article 7(1)(g)
148
2
20. Mandatory Rules: Article 7(2) (1)
150
1
21. Mandatory Rules: Article 7(2) (2)
150
1
22. The Relationship Between Public Law Provisions and Choice of Law Rules in the Second Non-Life Directive
151
2
23. Some Remarks on the Conflict of Laws Issues Arising from Bad Faith Insurance
153
1
24. Evaluation
154
3
(a) An Excessively Restricted Choice of Law
154
1
(b) Limiting the Freedom of Services Within the Single Insurance Market
154
1
(c) Lack of Co-ordination Between the Jurisdiction rules of the Brussels Convention and the Choice of Law Rules of the Second Non-Life Directive
155
1
(d) Lack of Choice of Law Rules on the Agency Relationship
155
1
(e) Lack of Co-ordination Between Public Law and Choice of Law Rules
156
1
(f) Excessive Freedom of Implementation of the Choice of Law Rules
156
1
II. The Choice of Law Rules in the Third Non-Life Insurance Directive
157
4
25. The Law Applicable to Insurance Contracts Covering 'Large Risks': Article 27
157
1
26. The Law Applicable to Insurance Contracts Covering 'Mass Risks': Article 28
158
1
27. The Relationship Between Mandatory Rules and 'General Good'
159
1
28. The Relationship Between Articles 28 and 7(1) (a), (b), (c), (d), (e) of the Second Non-Life Directive
159
1
29. From the Free Choice of Law Rule to the 'Aware Choice of Law' Principle: Article 31(1), (2), (3)
160
1
30. Evaluation
161
2
(a) Strengths of the Choice of Law Rules of the Third Non-Life Directive
161
1
(b) Weaknesses of the Choice of Law Rules of the Third Non-Life Directive
161
2
31. Options for Reform
163
2
(a) Providing an answer to the questions Arising from the Notion of 'General Good'
163
1
(b) Re-wording Article 1(3) of the Rome Convention
164
1
10. Applicable Law under the Second and Third-Life Assurance Directives
165
28
1. Introduction
165
1
2. Scheme of the Set of Choice of Law Provisions in the Second and Third Life Assurance Directives
165
2
(a) The Choice of Law Provisions in the Second Life Assurance Directive
166
1
(b) The Choice of Law Rules in the Third Life Assurance Directive
166
1
I. The choice of law rules in the Second Life Assurance Directives
167
1
3. The Relevant Connecting Factors
167
3
(a) The Law of the Member State of the Habitual Residence of the Policy-Holder
167
1
(b) Nationality
168
2
4. Where the Member State of the Commitment Grants the Parties Greater Freedom to Choose the Governing Law of the Contract
170
1
5. 'The General Provisions of Private International Law': Article 4, paragraph 5
171
1
6. Dépeçage
171
1
7. Does Article 5 of the Rome Convention Apply to the Assurance Contracts Referred to by the Second Life Assurance Directive?
172
1
8. Public Policy
172
1
9. Mandatory rules: Article 4(4)
173
2
(a) Article 4(4) (1)
174
1
(b) Article 4(4) (2)
174
1
10. The Scope of Application of the Governing Law of the Contract
175
1
11. The Law Applicable to Group Life Insurance, Health and Disability Insurance Contracts
175
2
12. The Law Applicable to the Rights of the Third Party Beneficiary of a Life Assurance Contract
177
1
13. Some Remarks on the Conflict of Laws Issues Arising from the Specific Clauses Indicating the Third Party Beneficiary in a Life Assurance Contract
178
1
14. The Law Applicable to Loans Contained in Life Insurance Policies
179
1
15. The Relationship Between Business Rules and Choice of Law Provisions in the Second Life Assurance Directive
180
1
16. Evaluation
181
6
(a) Strengths of the Choice of Law Rules of the Second Assurance Directive
181
2
(b) Weaknesses of the Choice of Law Rules of the Second Life Assurance Directive
183
4
II. The Choice of Law Rules in the Third Life Assurance Directive
187
2
17. Where the Policyholder Takes the Initiative to Take Out an Assurance and Enters into Contact with the Insurer in the State of Origin: Article 28
187
1
18. The Relationship between Articles 28 of the Third Life Assurance Directive and 4 of the Second Life Assurance Directive
188
1
19. From the Free Choice of Law Rule to the 'Aware Choice of Law' Principle: Article 31
188
1
20. Evaluation
189
2
(a) Strengths of the Choice of Law Rules of the Third Life Assurance Directive
189
1
(b) Weaknesses of the Choice of Law Rules of the Third Life Assurance Directive
189
2
21. Options for Reform
191
2
(a) Providing an Answer to the Questions Arising From the Notion of 'General Good'
191
1
(b) Re-wording Article 1(3) of the Rome Convention
191
2
11. The Implementation of the EC Choice of Laws Provisions for Insurance Contracts in the United Kingdom
193
6
1. Introductory Remarks
193
1
2. The Implementing Acts of the Rome Convention and Insurance Directives
193
1
3. The Format of the Provisions
194
1
4. The Choices Made
195
4
(a) The Extent of Party Autonomy
195
1
(b) Party Autonomy According to English law
195
1
(c) Party Autonomy by Way of Renvoi
195
1
(d) Where There is No Choice of Law by the Parties
196
1
(e) Choice of Law Within the United Kingdom
196
3
Part IV. The European Private International Law of Compulsory Insurance
12. The EC Choice of Law Rules for Compulsory Insurance Contracts: the General Rules
199
20
1. Introduction
199
1
2. The Substantive Law Background in Europe
200
1
3. Choice of Law Problems in Transnational Compulsory Insurance
201
2
(a) Different Types of Compulsory Insurance
201
1
(b) The Need for Specific Conflicts Rules on Compulsory Insurance
202
1
4. Choice of Law Rules
203
2
(a) The 1980 Rome Convention and the Law Applicable to Compulsory Insurance Contracts Covering Risks Situated Outside the Territories of the Member States of the European Community
203
1
(b) The Applicable Law
204
1
(c) Article 5 of the Rome Convention and the Law Applicable to Contracts of Compulsory Insurance
205
1
5. The Second Non-Life Insurance Directive and the Law Applicable to Contracts of Compulsory Insurance Covering Risks Situated in the Territories of a Member State of the European Community: An Overview of the Set of Choice of Law Rules
205
7
(a) Scheme of the Set of Choice of Law Rules for Compulsory Insurance in the Second Non-Life Directive
206
1
(b) Article 8(1)
206
2
(c) The Law Applicable to Compulsory Insurance Contracts Covering Risks Situated in Different Member States: Article 8(4) (a)
208
1
(d) The Law of the Member State Imposing the Obligation to Take Out Insurance and the Law Applicable to Compulsory Insurance Contracts: Article 8(4) (c)
208
1
(e) The Specific Provisions Relating to Compulsory Insurance Laid Down by the Member State Imposing an Obligation to Take Out Insurance and the Law Applicable to Compulsory Insurance Contracts: Article 8(2)
209
1
(f) Mandatory rules: Article 8(3)
210
1
(g) Mandatory rules: Article 8(4) (d)
211
1
6. The Duty of the Member States to Communicate to the Commission the Risks Against which Insurance is Compulsory: Article 8(5)(a) and (b)
212
1
7. Evaluation
213
3
(a) Complexity
213
1
(b) An Excessive Freedom of Implementation of the Choice of Law Rules
213
1
(c) Objections to This
214
1
(d) Forum Shopping
214
1
(e) The Objective of the Second Non-Life Directive
215
1
(f) Uncertainty
215
1
(g) Lack of Co-ordination Between the Jurisdiction Rules of the Brussels Regulation and the Choice of Law Rules for Compulsory Insurance
216
1
8. Options for Reform
216
3
(a) Repealing the Implementation Provisions of Article 8(4) (c)
216
1
(b) Re-wording Article 1(3) of the Rome Convention
217
2
13. The EC Choice of Law Rules for Motor Vehicle Insurance Contracts
219
16
1. Introduction
219
2
2. The Law Applicable to Motor Vehicle Insurance Contracts under the European Rules of Private International Law
221
14
(a) The 1980 Rome Convention and the Law Applicable to Motor Vehicle Insurance Contracts Covering Risks Situated Outside the Territories of the Member States of the European Community
221
1
(b) The Second Non-Life Insurance Directive and the Law Applicable to the Motor Vehicle Insurance Contracts Covering Risks Situated in the Territories of a Member State of the European Community
221
1
(c) Article 7(1) (a) of the Second Non-Life Directive and the Law Applicable to Motor Vehicle Insurance Contracts
222
1
(d) Article 8 (4) (c) of the Second Non-Life Insurance Directive and the Law Applicable to Motor Vehicle Insurance Contracts
223
1
(e) Private International Law Aspects of the Third Motor Vehicle Insurance Directive
224
1
(f) The Relationship Between Contract and Tort in the Field of Motor Vehicle Insurance
224
1
(g) The Law Applicable to Punitive Damages
225
2
(h) Examples of Mandatory Rules in the Field of Motor Vehicle Insurance
227
1
(i) The Law Applicable to the Claims for Damages under the Motor Insurers Bureau System
228
1
(j) Final remarks
229
6
Part V. The European Private International Law Rules of Insurance and Reinsurance Contracts Concluded by Electronic Means
14. Electronic Commerce Law in Europe
235
6
1. Introduction
235
1
2. The Freedom to Provide Insurance Products and Services by Electronic Means in Europe
235
1
3. The 2000 Directive on Electronic Commerce
236
2
(a) The Aim of the Directive
236
1
(b) The Scope of Application
237
1
(c) Commercial Communication/Advertising and Promotions
237
1
(d) Contracts Concluded by Electronic Means
238
1
4. Draft Directive on the Distance Marketing of Financial Services
238
2
(a) The Aim of the Draft Directive
238
1
(b) Distance Contracts
238
1
(c) Other Definitions
239
1
(d) Information of the Consumer Before Conclusion of the Contract
239
1
5. Are the EC Directives and Proposals Related to Online Commerce Pro-consumer?
240
1
15. Insurance and Reinsurance Contracts Concluded by Electronic Means: Jurisdictional and Applicable Law Problems
241
10
1. Introduction
241
1
2. Jurisdictional Problems in Transnational Insurance and Reinsurance Contracts Concluded by Electronic Means
241
2
3. Jurisdiction under the Brussels and Lugano Conventions
243
4
(a) The Absence of Special Rules of Jurisdiction for Contracts Concluded by Electronic Means
243
1
(b) Jurisdiction in Matters Relating to Insurance and Reinsurance
243
4
4. Evaluation
247
1
(a) Article 13: an Unsuitable Provision for Jurisdictional Agreements Concluded in the Online Environment
247
1
5. Options for Reform
248
3
(a) Re-wording Article 13
248
1
(b) A Special Rule for Jurisdictional Agreements Contained in Contracts Concluded by Electronic Means
249
2
16. Choice of Law in Relation to Insurance and Reinsurance Contracts Concluded by Electronic Means
251
10
1. Introduction
251
1
2. The 1980 Rome Convention and the Law Applicable to Insurance Contracts Concluded by Electronic Means
252
1
(a) The Applicable Law
252
1
3. Article 5 of the Rome Convention and the Law Applicable to Insurance Contracts Concluded by Electronic Means
253
3
(a) Specific Invitation
254
1
(b) Previous Advertising
254
1
(c) Steps Necessary for the Conclusion of the Contract
255
1
(d) Order Received in the Country of the Consumer's Habitual Residence
255
1
4. The Law Applicable to the Form of Insurance and Reinsurance Contracts Concluded by Electronic Means
256
1
5. The 2000 Directive on Electronic Commerce and the Law Applicable to Insurance and Reinsurance Contracts
256
1
6. The Second Non-Life Directive and the Law Applicable to Insurance Contracts Concluded Over the Internet Covering Risks Situated in the Territories of a Member State of the European Community
257
1
7. Article 7(1)(a), (b), (c) of the Second Non-Life Directive and the Law Applicable to Insurance Contracts Concluded by Electronic Means
257
1
8. The Second Life Directive and the Law Applicable to Insurance Contracts Concluded by Electronic Means
258
1
9. Final Remarks
258
3
17. General Conclusions
261
6
1. The Need for a Review of the Rules on Jurisdiction in Insurance Matters
261
1
2. The Unsatisfactory State of the Law Applicable to Insurance Contracts
262
5
Appendices
267
36
Bibliography
303