4.
News
from the Working Parties
Working Party " Prevention and Insurance"
The Prevention and Insurance Working Party's discussion
in New York will consider in detail "Prevention and Insurance
in e-commerce and genetic engineering" - the framework for
this discussion, set out below, follows the content of the first
draft of the Working Party's final report on this topic.
Title of the investigation: Prevention and Insurance
in e-commerce and genetic engineering
1. History and development. Significance and
fields of application
2. Circunstances which may create the scenario or climate
for our investigation
3. Legal aspects
3.1. in general: the situation of
the legislation related to e-commerce, electronic signature and
genetic engineering in EU, USA and other countries ( scope of
application, intended finality ). Differentiation in accordance
with the legislation grade: preparation of a draft, draft, current
discussion in Parliament, law or bill approved. The different
protocols on computer security and on biosafety, for example the
Cartagena Protocol
3.2. Legal liability
3.2.1. persons responsible and for what types
of loss or damage
3.2.2. the burden of proof; acceptance by the courts of evidence
concerning the studied topics
3.2.3. Exonerations of liability
3.2.4. Liability limited in amount or unlimited
3.3. short description of the criminal law (code
or similar) related to computer and genetic engineering crimes
and misdemeanors. Please indicate a) when were the concerning
articles introduced b) types of crimes ( minor and serious crimes);
c) type of protected damages d) whether the damage compensation
is linked - or if it can be linked - with the criminal procedure
4. A summary of the articles of the computer
or genetic engineering legislation directly related to the insurance.
Previsions concerning the introduction of a compulsory insurance,
minimum limit requirements (e.g. service providers of certification,
genetic engineering/field trials); market availability of insurances.
5. Statistical figures of cases regarding data
destruction, modification, fake, interruption or transfer carried
out by employees or third persons in general without permission
or consent of the owner and at his expenses. The same for cases
related to genetic engineering (free release of substances, food
contaminacion by storage instalations and the like ). Indication
of types, number, economic amounts and whether an insurance (class)
existed to cover the damages or if it was introduced after the occurrence.
6 . Definitions
6.1 particular terms used within the policy context.
6.2. are all the terms translated into the own language (not English)
or are the English terms used and accepted by the courts?
6.3. Types of loss or damages covered
7. Prevention at the different stages of the
policy coverage
7.1. Risk assessment
Explanatory note: the purpose of this part
of the investigation is to identify and to assess the risks linked
with the computer technology/ e-commerce and the genetic engineering
in its current and potential applications, especially in medicine,
microbial genomics, DNA Forensics, agriculture, livestock breeding
and bioprocessing.
7.1.1. Examples of trade sectors, activities or
professions involving a greater hazardous risk in e- commerce
and signature and genetic engineering (for example: negative
or positive brand red lists ), under special consideration of
the healthcare sector including pharmaceuticals and diagnostics,
food sector and enviromental sector. Principles for the enviromental
risk assessment
7.1.2. Why are these sectors dangerous ? Special focus on medicine:
• impacts on biomedical
and biological research and on clinical medicine
• can the improved diagnosis
of deseases or an earlier detection of genetic predispositions
to deseases influence the compulsory risk declarations ?
7.1.3. Criteria to decide if a risk is more or less hazardous
( e.g. risk management, owner supervision, financial performance,
loss history, organisation of the entity, location, number of
years in business, age of organisation, security procedures,
frequency of internal/external audits, other specific details
which have to be taken into account) 7.1.4. which special underwriting
expertise is requested
7.1.5. Rating policy
7.1.6. Precontractual duties
7.1.7. Loss information required (past five years). Loss potential
7.1.7.1 Period considered
7.1.7.2. Nature of the losses
7.1.7.3. Corrective measures taken to prevent recurrence of
loss or losses
7.1.8. Risk management
7.2. The scope of cover within the insurance
period
7.2.1. The different approaches to the cover:
The insuring clauses.
7.2.2. The legal relationships to be considered between the
involved parties
7.2.3. the policy triggers . Special consideration of the retroactive
date (limited or unlimited).
7.2.4. The sum insured and the aggregate limits (per person,
per loss/claim,per year, per policy); reinstatements. Guarantee
limited in amount or not.
7.2.5.The deductible/retention
7.2.6. Territorial scope
7.2.7. Exclusions
7.2.7.1. Exclusion lists containing the special
exclusions related to e-commerce- electronic signature and
genetic engineering; the most frequent policies exclusions
used in the markets
7.2.7.2. Are the special exclusions "original" of
your countries or are they "imported" from other
countries (which ones ?)
7.2.7.3. Special treatment of indirect or consequential loss
(loss of interest, business interruption, fines, penalties,
punitive damages. lost (potential) income or profits not realized,
dividends, fees, commissions etc.)
7.2.7.4. Losses excluded but included by other insurance policies
7.2.8. Extensions of the coverage ( for
example: libel and slander, intellectual property, dishonesty
of employees, loss of documents,vendors liability ...)
7.3. The loss or damage
7.3.1. Reasonable precautions to prevent or to
dwindle the damage
7.3.2. Cooperation with the insurer in persuit
of any recovery of rights
7.3.3. Notification of loss; proof of loss; influence
of legal proceedings
7.3.4. Damage assessment; main criteria; utilisation
of loss adjusters und expertise degree
7.3.5. Particular specifications related to the
claims handling
7.3.6. Law und forum applicable; forum shopping
possible ?
7.3.7. The Starlink case: losses as side effects
of precautionary dicisions .Transgenic soja destruction in Brazil.
Similar cases.
8. Specialities
8.1. Electronic and computer crime cover
8.1.1. Cover against offside or inside manipulation
of an insured´ computer system
8.1.2. Cover for general or for specific defined
events and /or named perils
8.1.3. Scope of cover (fraudent imput, service
bureau, electronic computer instructions, malicious damage to
electronic data media, computer virus, electronic communications,
electronic transmision, electronic securities,
8.1.4. Computer virus
8.1.5. Risk assessment : package of preventive
measures (seggregation of duties, permanent virus checks implementation,
virus protection software regurlay renewed or upgraded, intervals
of data back ups, firewalls, frequency of the changing of passwords,
installations of programs detecting unauthorized changes etc.)
Working Party On Accumulation Of Claims And Subrogation
November 9, 2001, In Rosario, Province
Of Santa Fe, During The Vii Iber Latin American Insurance Law Conference
As informed by e-mail to all AIDA sections and regular participants
of the Working Party sessions, the Working Party on "Accumulation
of Claims and Subrogation" held its meeting on November 9, 2001,
in the city of Rosario, Province of Santa Fe, Argentine Republic,
presided by Dr. Claudio Horst Speyer, Party Chairman, and Dr. Enrique
José Quintanta, the Party Secretary, acting as Secretary.
Considering that the meeting was simultaneous to the VII Ibero Latin
Insurance Law Conference, assisted by the Members of AIDA Board, the
numerous presence of participants from Argentina as well as other
CILA member countries, and the fact that most of them were Spanish-speaking
allowed the presence of over 50 persons, interested in discussing
and considering the agenda previously informed:
1. Inter-action of Individual Insurance and Social Security in the
case of Accumulation of Claims and Subrogation, and
2. The Exercise of Legal Subrogation conferred to workers compensation
insurers in Argentina, in the case of in itinere accidents against
the tortfeasor and its insurer.
Once the session was opened, the Party Chairman thanked the numerous
audience for its participation and expressed his satisfaction about
its increase, compared to the VI Ibero Latin American Conference held
in Cartagena de Indias, Colombia, in May 2000.
The Chairman reminded that the subject matter of the Working Party
is not exhausted; indeed, its relevance is increasing due to the inter
relationship between individual insurance and social security, phenomenon
that is common to all Latin American Countries due to the reforms
introduced in the legislation on this area during the 90's.
He also recalled that during the IV AIDA World Conference, in Lausanne,
Switzerland, one of the general themes considered was "Accumulation
of Claims, resources and subrogation in private and public insurance",
discussed by two general rapporteurs, Professor Reiner Schmidt, advised
by Dieter W. Luer from Germany, for western countries, and Professor
G. Eorsi, from Hungary, for Socialist countries. He also reminded
that the second general theme in this Conference "Insurance and
acts of violence against the community", in spite of having passed
3 decades since its first discussion, still shows its actuality before
the tragic events occurred in the United States on September 11.
Participants were briefly informed about the results of the two last
meetings held during the VI Iber Latin American Conference in Cartagena
de Indias (Colombia) and Rome (Italy) in May 2001, and thanked AIDA
General Secretariat for the publication of the summary of these meetings
in the Newspaper.
Upon discussing the first item on the agenda, participants agreed
on the need that new individual insurance cover and the Social Security
benefits, especially in the case of health insurance cover and workers
compensation, should be further studied in order to establish case
law on whether these issues can be considered as accumulation of claims
and whether there is any possibility of exercising a subrogatory action.
A warning was made that at present, at least in Latin America, there
is a new scenery where private insurers are the providers of Social
Security services. Special attention should be given to the situation
in the Federate Republic of Brazil where the possibility of replacing
the coverage of workers compensation by the public sector for private
companies is being discussed. This change in the law and legal schemes
will entail the re-discussion of social insurance and health cover
in the case of compensatory services, having agreed on the need to
deepen studies.
The second item, the exercise of the subrogatory action conferred
to Workers Compensation Insurers in the case of in itinere accidents
against the tortfeasor and its insurer, though it apparently is a
local issue, was followed with deep interest by the observers of neighbour
countries. The Workers Compensation Act of Argentina has imported
the implementation of this cover form through the Social Security
sub-system, in charge of private insurers. The act foresees the possibility
of subrogating against the tortfeasor in the case of an accident (i.e.,
travelling to or from the place of work) so that if the accident the
worker suffers is produced by a motor vehicle, the Workers Compensation
insurer subrogates with reference to the amounts paid and can sue
the tortfeasor and the insurer of the vehicle, and the worker accumulates
both compensations. There are major issues to be analyzed with reference
to the Court with jurisdiction to exercise this action and other issues
related to the action prescription. Dr. Moreno, Isasa, Schwarzwerg,
Farnos, Huber, Jové, etc. offered interventions of great interest
on this second aspect.
Unfortunately, the two-hour meeting, which had to end in order to
assist to the Conference closing ceremony, could not allow the intervention
of all the assistants requesting the floor.
Considering the interest showed in the subjects discussed, once the
Conference was over the authorities of the Working Party drafted the
agenda for the next meeting of the Working Party to be held during
the National Seminar on Insurance Law in La Plata, Province of Buenos
Aires, Argentina, on September 11, 2002, including the following items:
"1. Social Security and Individual Insurance benefits susceptible
of accumulating. 2. Need to reform legislation in order to enable
subrogation by the insurer against the tortfeasor in specific insurance
covers. 3. Difference in the subrogatory action between individual
insurers and workers compensation insurers, and pre-paid medicine
companies or others".
The conclusions to be reached at this meeting shall
be presented in the World Insurance Law Conference in New York,
in the month of October, 2002, when the Working Party will meet
again and the workers compensation insurance risks will be included
in the May 2003 Meeting in Rio de Janeiro, Brazil, during the VII
Ibero Latin American Insurance Law Conference.
Claudio Horst Speyer
Next Meeting
The next meeting will be during the World Congress on Thursday Oct.
24, 2002, at 9.30 am.
Languages: Spanish and English - Consecutive Translation.
Agenda to be discussed
1. Services by Social Security and individual insurance
companies susceptible of constituting accumulation.
2. Need for legislation reforms to enable that certain
personal insurance policies may foresee the insured party's subrogation
against the party responsible for the damage.
3. Differences in the subrogation action between individual
insurance companies and pre-paid medicine companies or others.
Prof.Dr. Claudio J.Horst Speyer
Chairman
claudiospeyer@speyer-mariani.com
Dr. Enrique J. Quintana
Secretary
Liability and Insurance for Products, Pollution and New Technologies
Working Party
The next meeting will take place during the World Congress,
on Thursday 24 October 2002 at 10.30 am
Chair: Robert Hogarth (RJH@RPC.co.uk)
The morning session (10.30-12.30) will consist of
a presentation of the Working Parties latest study on E-Trade Risks.
In addition to the chairman, Robert Hogarth, other expected contributors
will come from AIG, Willis and Reynolds Porter Chamberlain. The
topics which will be covered include:
1 What new risks are prevented by E-Trade,
particularly for non-specialist organisations.
2 Consideration of the differences in exposure between specialist
e-companies and other companies.
3 The availability of covers in the market both for specialist
e-companies and under general liability policies.
4 Open discussion of some examples of situations likely to
give rise to problems.
It is intended that the afternoon session (13.30-15.30)
will be a general business meeting and will consider:
1 Preliminary consideration of a new study
on Genetically Modified Organisms.
2 Discussion of a purposed questionnaire on categories of
Recoverable Loss for "Environmental Damage".
3 Consideration of time and location for the next meeting
of the Working Party.
4 Recruitment of new members.
Please contact the Chairman, Robert Hogarth of Reynolds
Porter Chamberlain London, (RJH@RPC.co.uk)
if you have any queries.
Reinsurance Working Party
The Reinsurance Working Party will meet during the
World Congress in New York on Tuesday 22 October 2002, from 9.00
am. The meeting will take the form of a mock arbitration based on
facts relating to WTC. We will have both a US and a non-US panel
of arbitrators. Vince Vitkowsky of Edwards & Angell and Kathy
Posner of Condon & Forsyth will act as the US counsel, and Michael
Mendelowitz of Barlow Lyde & Gilbert and Reinhard Dallmayr of
Bach, Dallmayr will act as the non-US counsel. If you would like
to attend the meeting, please notify Colin Croly - ccroly@blg.co.uk
- as soon as possible so that numbers can be confirmed. Edwards
& Angell and, Condon & Forsyth have also kindly agreed to
sponsor lunch.
This program will offer a chance to look at the reinsurance
issues arising out the WTC scenario, and an opportunity to see in
practice how US and non-US tribunals decisions vary.
The last meeting of the Reinsurance Working Party
was held in London, to coincide with the BILA Colloquium,` on 15
May 2002. The minutes are set out below.
Minutes of the Reinsurance Working Party
held on Wednesday 15th May 2002
At the offices of Barlow Lyde & Gilbert
London
Attending:
Colin Croly (chairman); Barbara Angell; John Arpel;
John Butler; Reinhard Dallmayr; Fabio Galli di Matteo; Michael Gill;
Alistair Gunn; Tim Hardy; Anthony Kay; Rose-Marie Lundstrom; Marlene
McConway; Sergio de Mello; Michael Mendelowitz; Rob Merkin; Lars
Moelgaard; Luis Felipe Pellon; Justino Avendano Renedo; Guillermo
Lascano Quintana; Mikael Rosenmejer; Peggy Sharon; Vince Vitkowsky
Apologies:
Apologies were received from Christian Bouckaert,
Gerardo Trigueros Gaisman, Michelle George, Tim Griffiths, Mikael
Hagopian, Kathy Posner, Ioannis Rokas, Domingo Lopez Saavedra, and
Antti Salenius.
Introduction
The Chairman welcomed those attending the meeting.
1 Report on progress of questionnaires
(a) Questionnaire 4 - Event. Michael Mendelowitz reported
that there were now enough responses for a report to be produced.
It was hoped that a draft would be circulated by early July with
a view to publication for the New York Congress.
(b) Questionnaire 5 - Custom and Practice. Colin Croly
reported that Kathy Posner has received enough responses to prepare
a report; her draft report was tabled at the meeting. Members were
invited to read the report and send any comments to Kathy. The report
would be published in time for the New York Congress.
(c) Questionnaire 6 - Cut Through and Transfer Reconstruction.
Michael Gill reported that there had been 10 responses and these
were enough to produce a report for New York. No response had been
received from the US, but it was hoped that a response would be
prepared shortly and that a report would be published in time for
the New York Congress.
(d) Questionnaire 7 - Intermediaries. Rob Merkin reported
that there had been enough responses to produce a report shortly
after the New York meeting.
2 Publication of future reports
In the past Informa had published the Working Party's
reports, but these had been rather expensive. Colin Croly reported
that a quotation of £1179 for 150 copies had been obtained
by the printers of AIDA Mail, for published material in the same
format. It would be possible to sell the reports for £15 to
£20, but the onus would be on AIDA to sell the reports. A
number of members of the Working Party expressed a willingness to
sell or give away reports in their own countries, and the reports
could be publicised in AIDA Mail and in other ways, eg on the AIDA
Website.
The possibility of translating future reports into
other AIDA languages, particularly Spanish, would be investigated
by Colin Croly.
It was agreed that £20 would be an appropriate
figure to charge for reports.
3 New questionnaires
It was agreed that limitation periods would be a good
topic, as the law was hard to ascertain in many jurisdictions. Peggy
Sharon agreed to act as reporter for this topic.
It was provisionally agreed that the following topic
would be set-off, and it was also agreed that utmost good faith
would be a worthwhile topic. The role of financial reinsurance and
alternative risk transfer could be incorporated into a revised version
of the first report, What is Reinsurance?
Rob Merkin agreed to come up with some further suggestions,
to be presented to the New York meeting.
4 Limitation Periods
Rob Merkin gave a general presentation on the operation
of limitation periods in English law. Reinhard Dallmayr gave a presentation
on the position in Germany and Michael Gill gave a presentation
on the position in Australia.
5 Whither Alternative Risk Transfer?
John Arpel gave a general presentation explaining
the meaning and operation of Alternative Risk Transfer. Colin Croly
gave a presentation on the differences between the insurance and
capital markets in the application of legal rules.
6 New York World Congress
There will be a Reinsurance Working Party meeting
on Tuesday 22 October at 9.00. Topics for the next meeting will
include an update on the World Trade Center litigation in New York
and the legal consequences for reinsurance and retrocession, including
events/aggregations issues and follow the settlements. This is,
if possible, to be done by means of a mock arbitration involving
US and non-US panels.
7 Any other business
There were no items of other business.
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