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News from the National Chapters
AUSTRALIA AND NEW ZEALAND
2007 AILA and NZILA Annual Conference
The Second Joint National Conference of the Australian and New Zealand Insurance Law Associations took place in Christchurch, New Zealand between 19-21 September 2007.
The programme featured many of today’s hot insurance topics presented by leading experts from Australia, New Zealand and the United Kingdom. From Law Reform to Climate Change and Litigation Funding via Advocates’ Immunity, Reinsurance and Emerging Areas of Risk, the programme highlighted all the key topics for those with an interest in insurance law in Australia and New Zealand.
AILA News
AILA has joined with the NZILA to publish a monthly newsletter. Please see the links below to the June and August 2007 editions. Highlighted articles include:
• TPA amendments ‘no insurer panacea’
• Avoid common mistakes in mediation
• Tort Reform “has gone too far”
• Evidence Act heralds privilege changes?
AILA News June 2007
AILA News August 2007
AUSTRIA
1.1 Improving Europe’s Retail Insurance Market
This summer the Austrian Insurance Association (VVO) presented to the European Commission an action plan to improve the Single Market for Retail Insurance.
About 1.5% of the EU citizens live and work in a different Member State than their country of origin. Two thirds of the working population are prepared to move to another EU country to find occupation. An increasing number of cross-border cases will challenge the current conflict of laws rules for insurance contracts. These proved to be one of the most complicated parts of international private law, hindering efficient daily insurance business.
Insurance contracts covering risks situated within the EU and covered by a EU insurer are regulated by the conflict of laws rules laid down in the EU insurance directives. These directives have been transposed in a diverging manner in 30 different transposition acts in 27 Member States aswell as in the EEA countries Iceland, Liechtenstein and Norway.
On top of that all other insurance contracts are regulated by another instrument, the Rome Convention of 1980.
The integration of the conflict of laws rules of the EU insurance directives as a lex specialis into the regulation on the law applicable to contractual obligations (Rome I) would be a solution to create a uniform regime covering all insurance contracts.
Realizing the European Insurance Contract
Early this year the Commission stated that the European retail internal market should function in the medium term more like a national retail market. An optional legal EU-wide (28th) regime is key to meet this objective. The harmonization of national contract laws doesn’t seem to be a feasible alternative. A 28th regime to be agreed upon by the parties to a contract is a complete set of rules, providing a uniform framework for a variety of pan-European insurance contracts without the need to identify, explore and apply national contract law regulations.
This idea has to be clearly distinguished from the notion of a 28th product simply based on standard terms and conditions. Lacking an appropriate legal grounding this option is considered to be far less marketable. A 28th product would require the abrogation of conflicting provisions in all national jurisdictions.
The Principles of European Insurance Contract Law (PEICL) - to be published at the end of 2007 - could form the basis of a 28th regime. During a workshop on European Contract Law in June 2007 the European Parliament has already expressed itself in favor of such a project.
VVO asked the Commission to prepare a proposal for a 28th regime on the basis of the Principles of European Insurance Contract Law and consultation with insurance law practicioners.
2 ENSURING CHOICE OF PRODUCTS AND PROVIDERS
Unlike any other sector of the economy cooperation is vital to sound competition within the insurance industry. This has been underlined by the Committee of European Insurance and Occupational Pension Supervisors (CEIOPS) early this year.
Since 1992 several forms of cooperation between insurers benefit from block exemption granted by Commission Regulations. A recent report by the Directorate-General for Competition on the inquiry into the European business insurance sector doubts the widely approved Block Exemption Regulation, extending thus implicitly the findings of an inquiry into business insurance to retail insurance.
One could argue that horizontal cooperation between insurers may continue outside the safe harbour of the BER with single audits in line with Council Regulation No 1/2003. Divergent interpretations of antitrust regulation by national authorities will put the Single Market for Retail Insurance at stake. This assumption is supported by findings of the European Competition Network, published in a report on the reform of Member States national competition laws after EC Regulation No. 1/2003 in May 2007.
Cooperation may also cease for reasons of prudence or as a strategy to shift market players’ powers. Consequently small and medium sized insurers, mostly serving local needs of consumers, are cut from market infrastructure. New entrants are discouraged by an increased burden of market entry. Larger insurers may be concerned via their smaller subsidiaries in other markets. This partial market foreclosure decreases the number of products and providers.
Consequently VVO urged the European Commission to renew the block exemption regulation No. 358/2003 after its expiration on 31 March 2010 in order to ensure a choice of products and providers.
Dieter Pscheidl,
Austrian Insurance Association
HUNGARY
The Hungarian Chapter reorganised its working parties and chairmen of the working parties contacted the corresponding AIDA Working Parties. Parallel they have renewed the registration of the Chapter. About 100 colleagues are now registered in the Chapter.
In the I-III decades of 2007 the Chapter focused its activity on the preparatory works of the new Civil Code, making continuous comments to the draft and the Working Groups of the Hungarian Chapter held WP meetings on different topics. They discussed the development of the gen-technik and its influence on insurance, one WP meeting dealt with the nexus of the reform of the Hungarian social security system with the private business insurance and two meetings with the new civil law and common law problems of the insurance intermediary regulation.
The Hungarian Chapter will organise its next colloquium, the X. AIDA Budapest Insurance Colloquium on the 27/28 November, 2008. The theme of the Colloquium is: “Restrictions of the civil law liability.” By choosing this topic the organisers are aiming – with special regard to the proceeding reform of the Hungarian Civil Code – to show tendencies to aggravate civil law liability as well as to restrict it, also regarding possibilities and limits of liability insurance. The Hungarian Chapter invite all AIDA Chapters and request speakers from different fields of law.
Dr Károly Bárd,
President of the Hungarian Chapter
SWEDEN
At present the Swedish Chapter has 271 individual members.
September 20, 2005
Professor Svante O. Johansson (also Sweden’s Average Adjuster [Sw: Dispaschör] gave a presentation on “Direct Action under the new Swedish Insurance Contract Act in connection with Liability Insurance; a Comparison with the corresponding rules in the other Nordic countries.”
The meeting, including a light meal, was attended by 40 members (and guests).
On 1 February, 2006, the Swedish Chapter arranged its traditional “Academic Insurance Day” chaired by professor Bill W. Dufwa, Stockholm University. The event was, as usual, well attended. More than 80 academics, company lawyers, private practising lawyers etc came to listen to the distinguished speakers and to enjoy a lunch together.
Professor Dufwa gave a speech on “The EC Directive on Legal Protection and Swedish Law.”
Jessy van der Sluijs, presented her thesis on “Direct Action under the new Swedish Insurance Contract Act” and Arnaud Lauer gave a presentation on “Human Rights and Insurance.” Both were at the time Doctoral Candidates at Stockholm University and tutored by professor Dufwa.
Professor Hugo Tiberg, Stockholm University, gave a speech on “A new situation for Swedish Marine Insurance.” (The new situation refers to the fact that a new Insurance Contract Act came into force on 1 January, 2006, after one of Sweden’s most extensive legislative projects ever, that lasted 30 years).
Professor Ulf Bernitz, Stockholm University, summarized “The latest development in the area of EC Law.”
Professor Bjarte Askeland, Norway, gave a presentation on “A Common European Tort Law in relation to the Nordic Legal Tradition.”
Under the title “The Duty of Loyalty in Insurance” Juri Munukka presented part of his thesis and Carolina Saf gave a presentation on “Choice of Law. The European Legal Development.” Both were at the time Doctoral Candidates at Stockholm University.
On April 24, 2006, 25 AIDA members and guests listened to Assistant Undersecretary Johan Lundström, the Finance Ministry, and Deputy Managing Director Anders Beskow, the Swedish Association of Insurers, who gave a presentation titled “News from the Legislator’s Factory” on recently implemented EC Directives in the Financial field, in particular concerning insurance, as well as on legislative projects “in the pipeline.”
AIDA’s Spring Meeting was held on May 30, 2006, at the Restaurant Aquaria at Djurgården on the seafront. 50 AIDA members and guests had dinner and listened to professor Jan Hjärpe, Lund University, who gave a speech on the topic “Is Insurance Gambling? The problematic part of Islamic Law.”
On February 2, 2007, the latest in the row of AIDA’s Academic Days took place. This time 70 members and guests had lunch and attended the following programme.
Ronnie Wallén, Project Manager, Aon, gave a presentation titled “Insurance in connection with Mergers & Acquisitions.”
Sandra Friberg, Doctoral Candidate, Uppsala University, presented her thesis “Compensation in cases of violations/offences.”
Nina Ewalds, Doctoral Candidate, Stockholm University, gave a presentation on “Taxation of Pension Insurances when moving between countries.”
Professor Are Stenvik, Oslo University, gave a speech on “The Internationalization of the Law on Compensation.”
Professor Thomas Wilhelmsson, Helsinki University, gave a presentation on “The European Harmonization Projects and National Law.”
Associate Professor, Torbjörn Ingvarsson, Uppsala University, presented his view on “Interpretation of Insurance Contracts.”
On May 3, 2007, Matts Nordell, General Counsel, the Swedish Traffic Insurance Association, and Helen Mood, Head of the International Claims Department, Folksam, gave an overview of the 4th and 5th EC Motor Third Party Liability Directives and contributed their vast experiences.
Around 30 members and guests participated in the meeting and enjoyed the following meal.
Rose-Marie Lundström,
Chairman of Swedish Chapter of AIDA
UK
The Annual General Meeting of the British Insurance Law Association (BILA) took place on 14 September 2007 at the Old Library, Lloyd’s. Speakers included: Dr Christopher Hodges of the University of Oxford, Charles Phipps of Four New Square Chambers, Simon Cooper of Barlow Lyde & Gilbert LLP, David Roberts of Cunningham Lindsey, Julian Burling of Lloyd's, David Steinberg of Clifford Chance LLP and Vivien Tyrrell of Kendall Freeman.
BILA is intending to respond to the recently published Consultation Paper on Insurance Contract Law by the Law Commissions. The BILA Committee has set up a working party consisting of Alison Green, Stephen Lewis, Marcus Mander and Emily Bourne, who will consider the Paper and draw up BILA's written response.
Further details of all events, lecture scripts and other materials may also be obtained from the BILA website (www.bila.org.uk).
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