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INSURANCE IN PRIVTE INTERNTIONAL LAW
  • FRANCESC SEATZU 著
  • 出版社: OXFORD-PORTLAND OREGON
  • ISBN:1841133353
  • 出版时间:2003
  • 标注页数:313页
  • 文件大小:12MB
  • 文件页数:341页
  • 主题词:

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图书目录

Part Ⅰ. The Substantive Law Background in Europe and its Significance for Private International Law3

1. The substantive law in Europe3

1. Introduction3

2. The EU Insurance Market3

3. The Treaty of Rome4

(a) Establishment5

(b) The Freedom of Services6

(c) Establishment v Services7

(d) Harmonisation7

4. The 1993 Unfair Contract Terms Directive8

5. Reinsurance9

6. The First Non-Life Insurance Directive9

(a) Scope9

(b) Authorisation Requirements10

(c) The Definition of Establishment10

7. The First Life Insurance Directive10

(a) Scope10

(b) Authorisation Requirements11

(c) The Simultaneous Operation of Life and Non-life Insurance11

8. The Co-insurance Directive11

(a) Scope11

(b) The Co-insurance Directive and the Insurance Cases12

9. The Second Non-Life Insurance Directive12

(a) Scope12

(b) Large Risks and Mass Risks12

(c) Member State where the Risk is Situated13

(d) Supervisory Systems13

10. The Second Life Insurance Directive14

(a) Scope14

(b) Policyholders14

11. Insurance Companies from Third Countries15

12. The Third 'Generation' Insurance Directives15

13. The Third Non Life Insurance Directive16

(a) Scope16

(b) The Single Authorisation System16

(c) The extension of Home Member State Control16

14. The Third Life Insurance Directive17

(a) Scope17

(b) The Single Authorisation System17

(c) The Extension of Home Member State Control17

15. The 'General Good' in the Third Insurance Directives18

16. The European Substantive Law for Insurance Intermediaries18

17. Are the EC Directives Pro-insureds?19

2. The Significance of the Substantive Law Background for Private International Law21

1. Identifying the Problems21

(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 Problems23

(d) Conclusion25

3. General Remarks on Insurance Conflict of Laws27

1. The Major Importance of Choice of Law Questions in Insurance Law27

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 Insureds28

(b) Ensuring Compatibility with the Substantive Law of Insurance29

(c) Preventing Insurers from Achieving Unreasonable Competitive Advantages30

(d) Empowering Insurers to Form Risk Pools Comprising Inhabitants of Different Member States of the European Union31

(e) Allowing Parties to Predict the Law Applicable to their Legal Relationship31

(f) Protecting the Interest of the Parties in Continuity of Cover32

3. Policy Issues: the Connecting Factors33

(a) Introductory remarks33

(b) An Exposition of Certain Connecting Factors of Relevance in Insurance and Reinsurance Contexts34

4. Specific Features of Conflicts Rules in International Insurance Law34

4. Admission of Insurance and Reinsurance Services and Products to the EU Market—Conflict of Laws Issues37

1. Introduction37

2. Admission of Insurance and Reinsurance Services and Products37

3. Communication38

4. Other Issues39

5. Liability40

6. The Impact of New Technologies on the Admission of Insurance and Reinsurance Products to the EC Insurance Market41

(a) Disintermediation42

(b) Delocalisation of Insurance and Reinsurance Markets43

7. Final Remarks43

Part Ⅱ. Jurisdictional Recognition and Enforcement of Judgments Problems and Possible Solutions45

Section I. Jurisdictional Problems and Possible Solutions: Preliminary Observations45

5. The special rules of the Brussels Regulation and Lugano Convention for insurance and reinsurance disputes49

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

(a) The Availability of a Defendant Domiciled in Europe50

(b) Multi-defendant Cases50

2. Jurisdiction under the Brussels and Lugano Conventions51

(a) The Set of Special Rules for Insurance Matters51

(b) Jurisdiction in Matters Relating to Insurance52

(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 Property59

(f) Third Party Proceedings against Insurers60

(g) Action by Insurers61

3. The Objectives of the Special Rules for Jurisdiction Agreements in Insurance and Reinsurance Matters62

(a) The Requirements for Jurisdiction Agreements63

Section II. Cross-border Co-operation Regarding Litigation in Insurance and Reinsurance Matters: Preliminary Observations67

6. Recognition and Enforcement of Judgments in Insurance and Reinsurance Matters71

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

(a) The Brussels Regulation71

(b) The Lugano Convention71

2. The Scope of the Brussels Regulation72

(a) A Judgment Given in a Member State72

(b) The Type of Jurisdiction Provision is Irrelevant72

(c) The Judgment is Given in Respect of a Civil and Commercial Issue72

3. Recognition of the Foreign Judgment73

(a) An Indispensable First Stage73

(b) The Rebuttable Presumption in Favour of Recognition73

4. How Problems Arise in Insurance and Reinsurance Cases75

(a) Recognition and Enforcement by EU National Courts of Judgments Rendered by other EU National Courts75

(b) Recognition and Enforcement by EU National Courts of Judgments Rendered by Courts of a Non-Member State Against the UK Defendant76

7. Forum shopping79

1. Introduction79

2. Reasons to Forum Shop79

3. Forum Shopping Within the European Community in Insurance Cases80

(a) What Advantages Will a Claimant Obtain?80

(b) The Opportunity to Forum Shop83

(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 Directives91

8. The 1980 Rome Convention and the Law Applicable to Insurance and Reinsurance Contracts91

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

2. The Definition of 'Risk' in the Rome Convention92

3. Law Applicable to the Insutance Policy93

4. The Express Choice of the Law Applicable to Insurance and Reinsurance Contracts94

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 Mercatoria97

(b) The Applicability of Lex Mercatoria98

6. Depecage of Insurance and Reinsurance Contracts98

7. The Law Applicable to Insurance and Reinsurance Contracts in the Absence of an Express Choice100

8. The Law Applicable to Insurance and Reinsurance Contracts in the Absence of Choice101

9. The Characteristic Performance of Insurance and Reinsurance Contracts102

10. The Rome Convention and the Law Applicable to Co-insurance Contracts105

11. The Law Applicable to Insurance Contracts Concluded by Consumers106

12. The Law Applicable to Multiple Risks Policies108

13. Evasion of Law109

14. The Application of Mandatory Rules to Insurance and Reinsurance Contracts110

15. Public Policy Questions112

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 Contracts114

18. Article 8 of the Rome Convention: the Formation of the Insurance Contract114

19. Article 8 of the Rome Convention: the Validity of the Insurance Contract115

20. The Law of the Place of Performance (lex loci solutionis) and Insurance and Reinsurance Contracts116

21. The Law Applicable to the Interpretation of Insurance and Reinsurance Contracts117

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 Contracts118

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 Systems120

25. The Law Applicable to the 'Direct Action' of the Victim Against the Insurer of the Person Liable120

26. The Law Applicable to the Subrogation of the Insurer121

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

28. The Law Applicable to Insurance Warranties123

29. Renvoi124

30. Incapacity125

31. Voluntary Assignment of Credits125

32. Evaluation126

(a) Strengths of the Rome Convention in Relation to Insurance and Reinsurance Contracts126

(b) Weakness of the Rome Convention in Relation to Insurance and Reinsurance Contracts127

33. Options for Reform128

(a) The US Restatement (Second) Conflict of Laws128

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

(c) Re-wording Article 5129

9. The Choice of Law Rules in the Second and Third Non-Life Directives131

1. Introduction131

2. Scheme of the Set of Choice of Law Rules in the Second and Third Non-Life Directives131

3. Scheme of the Choice of Law Rules in the Second Non Life Insurance Directive132

4. Scheme of the Choice of Law Rules in the Third Non Life Insurance Directive132

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

I. The Choice of Law Rules in the Second Non-Life Insurance Directive135

6. The Scope of Application135

(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 Directives137

8. The Law Applicable to Insurance Contracts Covering Risks Situated in the Member State Where the Policyholder has his Habitual Residence or its Central Administration138

9. The Law Applicable to Insurance Contracts Covering a Risk Situated in a Member State Where the Policyholder is not Habitually Resident139

10. The Law Applicable to Insurance Contracts Covering Risks Situated in Different Member States140

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 Contract141

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 Situated142

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

14. The Law Applicable in the Absence of a Choice or a Valid Choice143

15. Depecage144

16. The Law Applicable to Insurance Contracts Covering Risks Situated in and Outside the Territories of the Member States of the European Community145

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 Directive151

23. Some Remarks on the Conflict of Laws Issues Arising from Bad Faith Insurance153

24. Evaluation154

(a) An Excessively Restricted Choice of Law154

(b) Limiting the Freedom of Services Within the Single Insurance Market154

(c) Lack of Co-ordination Between the Jurisdiction rules of the Brussels Convention and the Choice of Law Rules of the Second Non-Life Directive155

(d) Lack of Choice of Law Rules on the Agency Relationship155

(e) Lack of Co-ordination Between Public Law and Choice of Law Rules156

(f) Excessive Freedom of Implementation of the Choice of Law Rules156

II. The Choice of Law Rules in the Third Non-Life Insurance Directive157

25. The Law Applicable to Insurance Contracts Covering 'Large Risks': Article 27157

26. The Law Applicable to Insurance Contracts Covering 'Mass Risks': Article 28158

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 Directive159

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

30. Evaluation161

(a) Strengths of the Choice of Law Rules of the Third Non-Life Directive161

(b) Weaknesses of the Choice of Law Rules of the Third Non-Life Directive161

31. Options for Reform163

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

(b) Re-wording Article 1 (3) of the Rome Convention164

10. Applicable Law under the Second and Third-Life Assurance Directives165

1. Introduction165

2. Scheme of the Set of Choice of Law Provisions in the Second and Third Life Assurance Directives165

(a) The Choice of Law Provisions in the Second Life Assurance Directive166

(b) The Choice of Law Rules in the Third Life Assurance Directive166

I. The choice of law rules in the Second Life Assurance Directives167

3. The Relevant Connecting Factors167

(a) The Law of the Member State of the Habitual Residence of the Policy-Holder167

(b) Nationality168

4. Where the Member State of the Commitment Grants the Parties Greater Freedom to Choose the Governing Law of the Contract170

5. 'The General Provisions of Private International Law': Article 4, paragraph 5171

6. Depecage171

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

8. Public Policy172

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 Contract175

11. The Law Applicable to Group Life Insurance, Health and Disability Insurance Contracts175

12. The Law Applicable to the Rights of the Third Party Beneficiary of a Life Assurance Contract177

13. Some Remarks on the Conflict of Laws Issues Arising from the Specific Clauses Indicating the Third Party Beneficiary in a Life Assurance Contract178

14. The Law Applicable to Loans Contained in Life Insurance Policies179

15. The Relationship Between Business Rules and Choice of Law Provisions in the Second Life Assurance Directive180

16. Evaluation181

(a) Strengths of the Choice of Law Rules of the Second Assurance Directive181

(b) Weaknesses of the Choice of Law Rules of the Second Life Assurance Directive183

II. The Choice of Law Rules in the Third Life Assurance Directive187

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 28187

18. The Relationship between Articles 28 of the Third Life Assurance Directive and 4 of the Second Life Assurance Directive188

19. From the Free Choice of Law Rule to the 'Aware Choice of Law' Principle: Article 31188

20. Evaluation189

(a) Strengths of the Choice of Law Rules of the Third Life Assurance Directive189

(b) Weaknesses of the Choice of Law Rules of the Third Life Assurance Directive189

21. Options for Reform191

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

(b) Re-wording Article 1(3) of the Rome Convention191

11. The Implementation of the EC Choice of Laws Provisions for Insurance Contracts in the United Kingdom193

1. Introductory Remarks193

2. The Implementing Acts of the Rome Convention and Insurance Directives193

3. The Format of the Provisions194

4. The Choices Made195

(a) The Extent of Party Autonomy195

(b) Party Autonomy According to English law195

(c) Party Autonomy by Way of Renvoi195

(d) Where There is No Choice of Law by the Parties196

(e) Choice of Law Within the United Kingdom196

Part Ⅳ. The European Private International Law of Compulsory Insurance199

12. The EC Choice of Law Rules for Compulsory Insurance Contracts: the General Rules199

1. Introduction199

2. The Substantive Law Background in Europe200

3. Choice of Law Problems in Transnational Compulsory Insurance201

(a) Different Types of Compulsory Insurance201

(b) The Need for Specific Conflicts Rules on Compulsory Insurance202

4. Choice of Law Rules203

(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 Community203

(b) The Applicable Law204

(c) Article 5 of the Rome Convention and the Law Applicable to Contracts of Compulsory Insurance205

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 Rules205

(a) Scheme of the Set of Choice of Law Rules for Compulsory Insurance in the Second Non-Life Directive206

(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. Evaluation213

(a) Complexity213

(b) An Excessive Freedom of Implementation of the Choice of Law Rules213

(c) Objections to This214

(d) Forum Shopping214

(e) The Objective of the Second Non-Life Directive215

(f) Uncertainty215

(g) Lack of Co-ordination Between the Jurisdiction Rules of the Brussels Regulation and the Choice of Law Rules for Compulsory Insurance216

8. Options for Reform216

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

(b) Re-wording Article 1(3) of the Rome Convention217

13. The EC Choice of Law Rules for Motor Vehicle Insurance Contracts219

1. Introduction219

2. The Law Applicable to Motor Vehicle Insurance Contracts under the European Rules of Private International Law221

(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 Community221

(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 Community221

(c) Article 7(1) (a) of the Second Non-Life Directive and the Law Applicable to Motor Vehicle Insurance Contracts222

(d) Article 8(4) (c) of the Second Non-Life Insurance Directive and the Law Applicable to Motor Vehicle Insurance Contracts223

(e) Private International Law Aspects of the Third Motor Vehicle Insurance Directive224

(f) The Relationship Between Contract and Tort in the Field of Motor Vehicle Insurance224

(g) The Law Applicable to Punitive Damages225

(h) Examples of Mandatory Rules in the Field of Motor Vehicle Insurance227

(i) The Law Applicable to the Claims for Damages under the Motor Insurers Bureau System228

(j) Final remarks229

Part Ⅴ. The European Private International Law Rules of Insurance and Reinsurance Contracts Concluded by Electronic Means235

14. Electronic Commerce Law in Europe235

1. Introduction235

2. The Freedom to Provide Insurance Products and Services by Electronic Means in Europe235

3. The 2000 Directive on Electronic Commerce236

(a) The Aim of the Directive236

(b) The Scope of Application237

(c) Commercial Communication/Advertising and Promotions237

(d) Contracts Concluded by Electronic Means238

4. Draft Directive on the Distance Marketing of Financial Services238

(a) The Aim of the Draft Directive238

(b) Distance Contracts238

(c) Other Definitions239

(d) Information of the Consumer Before Conclusion of the Contract239

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 Problems241

1. Introduction241

2. Jurisdictional Problems in Transnational Insurance and Reinsurance Contracts Concluded by Electronic Means241

3. Jurisdiction under the Brussels and Lugano Conventions243

(a) The Absence of Special Rules of Jurisdiction for Contracts Concluded by Electronic Means243

(b) Jurisdiction in Matters Relating to Insurance and Reinsurance243

4. Evaluation247

(a) Article 13: an Unsuitable Provision for Jurisdictional Agreements Concluded in the Online Environment247

5. Options for Reform248

(a) Re-wording Article 13248

(b) A Special Rule for Jurisdictional Agreements Contained in Contracts Concluded by Electronic Means249

16. Choice of Law in Relation to Insurance and Reinsurance Contracts Concluded by Electronic Means251

1. Introduction251

2. The 1980 Rome Convention and the Law Applicable to Insurance Contracts Concluded by Electronic Means252

(a) The Applicable Law252

3. Article 5 of the Rome Convention and the Law Applicable to Insurance Contracts Concluded by Electronic Means253

(a) Specific Invitation254

(b) Previous Advertising254

(c) Steps Necessary for the Conclusion of the Contract255

(d) Order Received in the Country of the Consumer's Habitual Residence255

4. The Law Applicable to the Form of Insurance and Reinsurance Contracts Concluded by Electronic Means256

5. The 2000 Directive on Electronic Commerce and the Law Applicable to Insurance and Reinsurance Contracts256

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 Community257

7. Article 7(l)(a), (b), (c) of the Second Non-Life Directive and the Law Applicable to Insurance Contracts Concluded by Electronic Means257

8. The Second Life Directive and the Law Applicable to Insurance Contracts Concluded by Electronic Means258

9. Final Remarks258

17. General Conclusions261

1. The Need for a Review of the Rules on Jurisdiction in Insurance Matters261

2. The Unsatisfactory State of the Law Applicable to Insurance Contracts262

Appendices267

Bibliography303

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