INSURANCE IN PRIVTE INTERNTIONAL LAWPDF电子书下载

Part Ⅰ. The Substantive Law Background in Europe and its Significance for Private International Law 3

1. The substantive law in Europe 3

1. Introduction 3

2. The EU Insurance Market 3

3. The Treaty of Rome 4

(a) Establishment 5

(b) The Freedom of Services 6

(c) Establishment v Services 7

(d) Harmonisation 7

4. The 1993 Unfair Contract Terms Directive 8

5. Reinsurance 9

6. The First Non-Life Insurance Directive 9

(a) Scope 9

(b) Authorisation Requirements 10

(c) The Definition of Establishment 10

7. The First Life Insurance Directive 10

(a) Scope 10

(b) Authorisation Requirements 11

(c) The Simultaneous Operation of Life and Non-life Insurance 11

8. The Co-insurance Directive 11

(a) Scope 11

(b) The Co-insurance Directive and the Insurance Cases 12

9. The Second Non-Life Insurance Directive 12

(a) Scope 12

(b) Large Risks and Mass Risks 12

(c) Member State where the Risk is Situated 13

(d) Supervisory Systems 13

10. The Second Life Insurance Directive 14

(a) Scope 14

(b) Policyholders 14

11. Insurance Companies from Third Countries 15

12. The Third 'Generation' Insurance Directives 15

13. The Third Non Life Insurance Directive 16

(a) Scope 16

(b) The Single Authorisation System 16

(c) The extension of Home Member State Control 16

14. The Third Life Insurance Directive 17

(a) Scope 17

(b) The Single Authorisation System 17

(c) The Extension of Home Member State Control 17

15. The 'General Good' in the Third Insurance Directives 18

16. The European Substantive Law for Insurance Intermediaries 18

17. Are the EC Directives Pro-insureds? 19

2. The Significance of the Substantive Law Background for Private International Law 21

1. Identifying the Problems 21

(a) What Sort of Jurisdictional Problems Are There Going to be in Europe? 21

(b) Where Are There Going to be Choice of Law Problems in Europe? 22

(c) The Interaction of European Union Law and Conflict of Law: the Disappearance of Potential Applicable Law Problems 23

(d) Conclusion 25

3. General Remarks on Insurance Conflict of Laws 27

1. The Major Importance of Choice of Law Questions in Insurance Law 27

2. Policy Considerations: What Has to be Achieved by Private International Law Rules in the Fields of Insurance and Reinsurance? 28

(a) Providing a Range of Comparable Offers to Prospective Insureds 28

(b) Ensuring Compatibility with the Substantive Law of Insurance 29

(c) Preventing Insurers from Achieving Unreasonable Competitive Advantages 30

(d) Empowering Insurers to Form Risk Pools Comprising Inhabitants of Different Member States of the European Union 31

(e) Allowing Parties to Predict the Law Applicable to their Legal Relationship 31

(f) Protecting the Interest of the Parties in Continuity of Cover 32

3. Policy Issues: the Connecting Factors 33

(a) Introductory remarks 33

(b) An Exposition of Certain Connecting Factors of Relevance in Insurance and Reinsurance Contexts 34

4. Specific Features of Conflicts Rules in International Insurance Law 34

4. Admission of Insurance and Reinsurance Services and Products to the EU Market—Conflict of Laws Issues 37

1. Introduction 37

2. Admission of Insurance and Reinsurance Services and Products 37

3. Communication 38

4. Other Issues 39

5. Liability 40

6. The Impact of New Technologies on the Admission of Insurance and Reinsurance Products to the EC Insurance Market 41

(a) Disintermediation 42

(b) Delocalisation of Insurance and Reinsurance Markets 43

7. Final Remarks 43

Part Ⅱ. Jurisdictional Recognition and Enforcement of Judgments Problems and Possible Solutions 45

Section I. Jurisdictional Problems and Possible Solutions: Preliminary Observations 45

5. The special rules of the Brussels Regulation and Lugano Convention for insurance and reinsurance disputes 49

1. Which Set of Rules will Apply in Insurance Cases? 49

(a) The Availability of a Defendant Domiciled in Europe 50

(b) Multi-defendant Cases 50

2. Jurisdiction under the Brussels and Lugano Conventions 51

(a) The Set of Special Rules for Insurance Matters 51

(b) Jurisdiction in Matters Relating to Insurance 52

(c) Actions Against Insurer: Article 9(1) 57

(d) Actions Against Insurer: Article 9(2) 58

(e) Actions Against Insurer in Matters Relating to Liability Insurance or Insurance of Immovable Property 59

(f) Third Party Proceedings against Insurers 60

(g) Action by Insurers 61

3. The Objectives of the Special Rules for Jurisdiction Agreements in Insurance and Reinsurance Matters 62

(a) The Requirements for Jurisdiction Agreements 63

Section II. Cross-border Co-operation Regarding Litigation in Insurance and Reinsurance Matters: Preliminary Observations 67

6. Recognition and Enforcement of Judgments in Insurance and Reinsurance Matters 71

1. When will the Brussels Regulation and Lugano Convention apply? 71

(a) The Brussels Regulation 71

(b) The Lugano Convention 71

2. The Scope of the Brussels Regulation 72

(a) A Judgment Given in a Member State 72

(b) The Type of Jurisdiction Provision is Irrelevant 72

(c) The Judgment is Given in Respect of a Civil and Commercial Issue 72

3. Recognition of the Foreign Judgment 73

(a) An Indispensable First Stage 73

(b) The Rebuttable Presumption in Favour of Recognition 73

4. How Problems Arise in Insurance and Reinsurance Cases 75

(a) Recognition and Enforcement by EU National Courts of Judgments Rendered by other EU National Courts 75

(b) Recognition and Enforcement by EU National Courts of Judgments Rendered by Courts of a Non-Member State Against the UK Defendant 76

7. Forum shopping 79

1. Introduction 79

2. Reasons to Forum Shop 79

3. Forum Shopping Within the European Community in Insurance Cases 80

(a) What Advantages Will a Claimant Obtain? 80

(b) The Opportunity to Forum Shop 83

(c) Is there Anything Wrong with Forum Shopping within Europe? 84

(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 91

8. The 1980 Rome Convention and the Law Applicable to Insurance and Reinsurance Contracts 91

1. Which Set of Rules will Apply to Insurance and Reinsurance Contracts? 91

2. The Definition of 'Risk' in the Rome Convention 92

3. Law Applicable to the Insutance Policy 93

4. The Express Choice of the Law Applicable to Insurance and Reinsurance Contracts 94

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

(a) The Notion of Lex Mercatoria 97

(b) The Applicability of Lex Mercatoria 98

6. Depecage of Insurance and Reinsurance Contracts 98

7. The Law Applicable to Insurance and Reinsurance Contracts in the Absence of an Express Choice 100

8. The Law Applicable to Insurance and Reinsurance Contracts in the Absence of Choice 101

9. The Characteristic Performance of Insurance and Reinsurance Contracts 102

10. The Rome Convention and the Law Applicable to Co-insurance Contracts 105

11. The Law Applicable to Insurance Contracts Concluded by Consumers 106

12. The Law Applicable to Multiple Risks Policies 108

13. Evasion of Law 109

14. The Application of Mandatory Rules to Insurance and Reinsurance Contracts 110

15. Public Policy Questions 112

16. The Sphere of the Lex Contractus 'Katione Materiae': Article 10(1) 113

17. The Law Applicable to the Formation and the Validity of Insurance and Reinsurance Contracts 114

18. Article 8 of the Rome Convention: the Formation of the Insurance Contract 114

19. Article 8 of the Rome Convention: the Validity of the Insurance Contract 115

20. The Law of the Place of Performance (lex loci solutionis) and Insurance and Reinsurance Contracts 116

21. The Law Applicable to the Interpretation of Insurance and Reinsurance Contracts 117

22. The Sphere of the Law Applicable to the Insurance Contract 'Ratione Personae' 118

23. The Law Applicable to the Form of Insurance and Reinsurance Contracts 118

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

25. The Law Applicable to the 'Direct Action' of the Victim Against the Insurer of the Person Liable 120

26. The Law Applicable to the Subrogation of the Insurer 121

27. The Relationship Between Articles 13 (Subrogation) and 6 (Individual Employment Contracts) 122

28. The Law Applicable to Insurance Warranties 123

29. Renvoi 124

30. Incapacity 125

31. Voluntary Assignment of Credits 125

32. Evaluation 126

(a) Strengths of the Rome Convention in Relation to Insurance and Reinsurance Contracts 126

(b) Weakness of the Rome Convention in Relation to Insurance and Reinsurance Contracts 127

33. Options for Reform 128

(a) The US Restatement (Second) Conflict of Laws 128

(b) A Special Rule for the Consumer Contracts of Insurance Services? 128

(c) Re-wording Article 5 129

9. The Choice of Law Rules in the Second and Third Non-Life Directives 131

1. Introduction 131

2. Scheme of the Set of Choice of Law Rules in the Second and Third Non-Life Directives 131

3. Scheme of the Choice of Law Rules in the Second Non Life Insurance Directive 132

4. Scheme of the Choice of Law Rules in the Third Non Life Insurance Directive 132

5. The Definition of 'Mass Risks' and 'Large Risks' 133

I. The Choice of Law Rules in the Second Non-Life Insurance Directive 135

6. The Scope of Application 135

(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

(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

7. The Problem of Characterisation in the Insurance Directives 137

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

9. The Law Applicable to Insurance Contracts Covering a Risk Situated in a Member State Where the Policyholder is not Habitually Resident 139

10. The Law Applicable to Insurance Contracts Covering Risks Situated in Different Member States 140

11. Where the Member States Indicated in Article 7(l)(b) and (c) Grant the Parties Greater Freedom to Choose the Governing Law of the Contract 141

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

13. The Law Applicable to Insurance Contracts Covering 'Large Risks' 142

14. The Law Applicable in the Absence of a Choice or a Valid Choice 143

15. Depecage 144

16. The Law Applicable to Insurance Contracts Covering Risks Situated in and Outside the Territories of the Member States of the European Community 145

17. The 'General Provisions of Private International Law': Article 7(3) 146

18. Does Article 5 of the Rome Convention Apply to the Insurance Contracts Referred to by the Second Non-Life Directive? 147

19. Mandatory Rules: Article 7(1)(g) 148

20. Mandatory Rules: Article 7(2)(1) 150

21. Mandatory Rules: Article 7(2)(2) 150

22. The Relationship Between Public Law Provisions and Choice of Law Rules in the Second Non-Life Directive 151

23. Some Remarks on the Conflict of Laws Issues Arising from Bad Faith Insurance 153

24. Evaluation 154

(a) An Excessively Restricted Choice of Law 154

(b) Limiting the Freedom of Services Within the Single Insurance Market 154

(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

(d) Lack of Choice of Law Rules on the Agency Relationship 155

(e) Lack of Co-ordination Between Public Law and Choice of Law Rules 156

(f) Excessive Freedom of Implementation of the Choice of Law Rules 156

II. The Choice of Law Rules in the Third Non-Life Insurance Directive 157

25. The Law Applicable to Insurance Contracts Covering 'Large Risks': Article 27 157

26. The Law Applicable to Insurance Contracts Covering 'Mass Risks': Article 28 158

27. The Relationship Between Mandatory Rules and 'General Good' 159

28. The Relationship Between Articles 28 and 7(l)(a), (b), (c), (d),(e) of the Second Non-Life Directive 159

29. From the Free Choice of Law Rule to the 'Aware Choice of Law' Principle: Article 31(1), (2), (3) 160

30. Evaluation 161

(a) Strengths of the Choice of Law Rules of the Third Non-Life Directive 161

(b) Weaknesses of the Choice of Law Rules of the Third Non-Life Directive 161

31. Options for Reform 163

(a) Providing an answer to the questions Arising from the Notion of 'General Good' 163

(b) Re-wording Article 1 (3) of the Rome Convention 164

10. Applicable Law under the Second and Third-Life Assurance Directives 165

1. Introduction 165

2. Scheme of the Set of Choice of Law Provisions in the Second and Third Life Assurance Directives 165

(a) The Choice of Law Provisions in the Second Life Assurance Directive 166

(b) The Choice of Law Rules in the Third Life Assurance Directive 166

I. The choice of law rules in the Second Life Assurance Directives 167

3. The Relevant Connecting Factors 167

(a) The Law of the Member State of the Habitual Residence of the Policy-Holder 167

(b) Nationality 168

4. Where the Member State of the Commitment Grants the Parties Greater Freedom to Choose the Governing Law of the Contract 170

5. 'The General Provisions of Private International Law': Article 4, paragraph 5 171

6. Depecage 171

7. Does Article 5 of the Rome Convention Apply to the Assurance Contracts Referred to by the Second Life Assurance Directive? 172

8. Public Policy 172

9. Mandatory rules: Article 4(4) 173

(a) Article 4(4)(1) 174

(b) Article 4(4) (2) 174

10. The Scope of Application of the Governing Law of the Contract 175

11. The Law Applicable to Group Life Insurance, Health and Disability Insurance Contracts 175

12. The Law Applicable to the Rights of the Third Party Beneficiary of a Life Assurance Contract 177

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

14. The Law Applicable to Loans Contained in Life Insurance Policies 179

15. The Relationship Between Business Rules and Choice of Law Provisions in the Second Life Assurance Directive 180

16. Evaluation 181

(a) Strengths of the Choice of Law Rules of the Second Assurance Directive 181

(b) Weaknesses of the Choice of Law Rules of the Second Life Assurance Directive 183

II. The Choice of Law Rules in the Third Life Assurance Directive 187

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

18. The Relationship between Articles 28 of the Third Life Assurance Directive and 4 of the Second Life Assurance Directive 188

19. From the Free Choice of Law Rule to the 'Aware Choice of Law' Principle: Article 31 188

20. Evaluation 189

(a) Strengths of the Choice of Law Rules of the Third Life Assurance Directive 189

(b) Weaknesses of the Choice of Law Rules of the Third Life Assurance Directive 189

21. Options for Reform 191

(a) Providing an Answer to the Questions Arising From the Notion of 'General Good' 191

(b) Re-wording Article 1(3) of the Rome Convention 191

11. The Implementation of the EC Choice of Laws Provisions for Insurance Contracts in the United Kingdom 193

1. Introductory Remarks 193

2. The Implementing Acts of the Rome Convention and Insurance Directives 193

3. The Format of the Provisions 194

4. The Choices Made 195

(a) The Extent of Party Autonomy 195

(b) Party Autonomy According to English law 195

(c) Party Autonomy by Way of Renvoi 195

(d) Where There is No Choice of Law by the Parties 196

(e) Choice of Law Within the United Kingdom 196

Part Ⅳ. The European Private International Law of Compulsory Insurance 199

12. The EC Choice of Law Rules for Compulsory Insurance Contracts: the General Rules 199

1. Introduction 199

2. The Substantive Law Background in Europe 200

3. Choice of Law Problems in Transnational Compulsory Insurance 201

(a) Different Types of Compulsory Insurance 201

(b) The Need for Specific Conflicts Rules on Compulsory Insurance 202

4. Choice of Law Rules 203

(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

(b) The Applicable Law 204

(c) Article 5 of the Rome Convention and the Law Applicable to Contracts of Compulsory Insurance 205

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

(a) Scheme of the Set of Choice of Law Rules for Compulsory Insurance in the Second Non-Life Directive 206

(b) Article 8(1) 206

(c) The Law Applicable to Compulsory Insurance Contracts Covering Risks Situated in Different Member States: Article 8(4) (a) 208

(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

(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

(f) Mandatory rules: Article 8(3) 210

(g) Mandatory rules: Article 8(4)(d) 211

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

7. Evaluation 213

(a) Complexity 213

(b) An Excessive Freedom of Implementation of the Choice of Law Rules 213

(c) Objections to This 214

(d) Forum Shopping 214

(e) The Objective of the Second Non-Life Directive 215

(f) Uncertainty 215

(g) Lack of Co-ordination Between the Jurisdiction Rules of the Brussels Regulation and the Choice of Law Rules for Compulsory Insurance 216

8. Options for Reform 216

(a) Repealing the Implementation Provisions of Article 8(4) (c) 216

(b) Re-wording Article 1(3) of the Rome Convention 217

13. The EC Choice of Law Rules for Motor Vehicle Insurance Contracts 219

1. Introduction 219

2. The Law Applicable to Motor Vehicle Insurance Contracts under the European Rules of Private International Law 221

(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

(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

(c) Article 7(1) (a) of the Second Non-Life Directive and the Law Applicable to Motor Vehicle Insurance Contracts 222

(d) Article 8(4) (c) of the Second Non-Life Insurance Directive and the Law Applicable to Motor Vehicle Insurance Contracts 223

(e) Private International Law Aspects of the Third Motor Vehicle Insurance Directive 224

(f) The Relationship Between Contract and Tort in the Field of Motor Vehicle Insurance 224

(g) The Law Applicable to Punitive Damages 225

(h) Examples of Mandatory Rules in the Field of Motor Vehicle Insurance 227

(i) The Law Applicable to the Claims for Damages under the Motor Insurers Bureau System 228

(j) Final remarks 229

Part Ⅴ. The European Private International Law Rules of Insurance and Reinsurance Contracts Concluded by Electronic Means 235

14. Electronic Commerce Law in Europe 235

1. Introduction 235

2. The Freedom to Provide Insurance Products and Services by Electronic Means in Europe 235

3. The 2000 Directive on Electronic Commerce 236

(a) The Aim of the Directive 236

(b) The Scope of Application 237

(c) Commercial Communication/Advertising and Promotions 237

(d) Contracts Concluded by Electronic Means 238

4. Draft Directive on the Distance Marketing of Financial Services 238

(a) The Aim of the Draft Directive 238

(b) Distance Contracts 238

(c) Other Definitions 239

(d) Information of the Consumer Before Conclusion of the Contract 239

5. Are the EC Directives and Proposals Related to Online Commerce Pro-consumer? 240

15. Insurance and Reinsurance Contracts Concluded by Electronic Means: Jurisdictional and Applicable Law Problems 241

1. Introduction 241

2. Jurisdictional Problems in Transnational Insurance and Reinsurance Contracts Concluded by Electronic Means 241

3. Jurisdiction under the Brussels and Lugano Conventions 243

(a) The Absence of Special Rules of Jurisdiction for Contracts Concluded by Electronic Means 243

(b) Jurisdiction in Matters Relating to Insurance and Reinsurance 243

4. Evaluation 247

(a) Article 13: an Unsuitable Provision for Jurisdictional Agreements Concluded in the Online Environment 247

5. Options for Reform 248

(a) Re-wording Article 13 248

(b) A Special Rule for Jurisdictional Agreements Contained in Contracts Concluded by Electronic Means 249

16. Choice of Law in Relation to Insurance and Reinsurance Contracts Concluded by Electronic Means 251

1. Introduction 251

2. The 1980 Rome Convention and the Law Applicable to Insurance Contracts Concluded by Electronic Means 252

(a) The Applicable Law 252

3. Article 5 of the Rome Convention and the Law Applicable to Insurance Contracts Concluded by Electronic Means 253

(a) Specific Invitation 254

(b) Previous Advertising 254

(c) Steps Necessary for the Conclusion of the Contract 255

(d) Order Received in the Country of the Consumer's Habitual Residence 255

4. The Law Applicable to the Form of Insurance and Reinsurance Contracts Concluded by Electronic Means 256

5. The 2000 Directive on Electronic Commerce and the Law Applicable to Insurance and Reinsurance Contracts 256

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

7. Article 7(l)(a), (b), (c) of the Second Non-Life Directive and the Law Applicable to Insurance Contracts Concluded by Electronic Means 257

8. The Second Life Directive and the Law Applicable to Insurance Contracts Concluded by Electronic Means 258

9. Final Remarks 258

17. General Conclusions 261

1. The Need for a Review of the Rules on Jurisdiction in Insurance Matters 261

2. The Unsatisfactory State of the Law Applicable to Insurance Contracts 262

Appendices 267

Bibliography 303