1、 外文翻译 原文 Review of Principles of European Insurance Law Material Source: ERA Forum (2008) 9:S167S175 Author: Peter Hen Cliff 1. Introduction In discussing the first draft of the PEICL (dated 17 December 2007) I will be commenting from the perspective of an Ombudsman from the United Kingdom. This mea
2、ns that my initial viewpoint is primarily derived from considering PEICL as an alternative to English or Scottish law in policies that are offered to consumers and to small and medium sized enterprises (SME) marketplaces. However, I also hope to comment on some other features and aspects based on my
3、 experience of commercial insurance and other EU jurisdictions. The draft gives rise to a great many questions and comments and it is tempting to merely work through the various articles of the PEICL and to raise concerns or make further suggestions. However, given the limited time and the need for
4、contributions to be made from a great many perspectives, I have endeavored to concentrate on certain of the more significant issues that the draft has raised in my mind. I have tried to group these under three headings: (1) What is not covered in PEICL that might have been. (2) Concerns and question
5、s about how PEICL could work in practice. (3) Issues that might affect the adoption of PEICL in (a) the commercial/SME market and (b) the consumer market by consumers, insurers and intermediaries 2. What is not covered in the PEICL? I would like to raise a few issues that might have been addressed i
6、n the course of developing the content and considering the effect of the PEICL. It remains possible that some of these issues might usefully be addressed in the next draft: 2.1 Fitness for purpose/Legitimate expectation/Implied terms What is missing from the present law in the UK in relation to insu
7、rance and from the PEICL is any real concept that there are essential elements to insurance contracts that consumers or SME can rely upon or safely assume will be in the contract when buying a certain type of policy. I have linked together some different legal concepts in my heading as they are all
8、capable of providing some reassurance or support for consumers and to unsophisticated SME purchasers. In the commercial marketplace, including those SME who have access to advice from insurance brokers, the buyer can be expected to understand, either in detail or in broad terms the extent of the cov
9、er that they are gaining from the policy. However, where the insurance is being sold to consumers and small businesses, without the benefit of any advice, we need to consider whether it is appropriate for the law to impose a basic standard on the provider or seller as to the content of the insurance
10、 product that they are offering. Fitness for purpose, implied terms or warranties the terminology may change can be difficult concepts to apply in insurance, however, consumers may well have an expectation as to what may be covered by motor insurance or travel insurance or buildings insurance. We kn
11、ow that consumers will seldom read the policy documents and that the sales process may not facilitate or permit this. Article 2:201 of the PEICL suggests that they may not even see all of the policy terms prior to the insurance cover commencing. Therefore how are they to understand what they are bei
12、ng offered or to make a choice between products with similar names being offered by insurers or intermediaries throughout the EU? In our work we will intervene in such issues. A travel policy which features a picture of a skier on the front cover as well as beaches and cafes etc, but has an exclusio
13、n for winter sports is likely to be found to have been misrepresented and therefore mish-sold in our view. Exclusion may not be given effect if it is plainly contrary to the reasonable expectation of any party who was induced to enter into the policy by misleading marketing documentation. But what a
14、bout other examples？ If we take travel insurance as an example; can a consumer rely in law on it having any particular characteristic or effect? Can insurers exclude all liability for medical expenses incurred overseas, all loss of possessions for which a carrier has not admitted liability, all liab
15、ility if the policyholder consumes alcohol whilst traveling? I am aware of an attempt by a major credit card company to offer European wide travel insurance to its cardholders on a basis that was intended to escape regulation in the EU. They purported to make available to their customers the benefit
16、 of the travel cover that the credit card company itself held with an insurer based outside the EU. The consumer was granted the right to make a claim, on behalf of the credit card company, against the insurer for the consumers own losses. However, only the credit card company could take legal proce
17、edings. The overall effect of the policy was to purport to offer the insurance cover, but in fact the payment of any claim was within the discretion of the credit card company. Would this be acceptable under the PEICL? My experience of the Unfair Terms in Consumer Contracts Regulations has been that
18、 there is considerable nervousness in the insurance sector and also amongst lawyers and regulators about the idea that the law may have something to say about the extent of cover that should be offered under an insurance policy. However, without this safeguard the increase in choice that the PEICL m
19、ight assist in offering to consumers and SME could be fraught with hidden dangers. 2.2 Proportionality, reasonableness, good faith These terms may be implied in civil law countries into all contracts. They would not necessarily be implied in the United Kingdom. I am not yet clear if they are an effe
20、ctive feature of the Common Frame of Reference and would therefore be incorporated into the PEICL. My initial reading suggests that “good faith and fair dealing” would be. It would seem to be helpful if the PEICL could set out some underlying principles that might be expected to apply in the design,
21、 marketing and operation of insurance policies. Article 1:207 deals with non-discrimination and it is possible to see that other similar principles could be incorporated. This would be helpful in enabling the PEICL to be developed and to be applied to new insurance products and appropriate circumsta
22、nces. To give one example from our work: A term in a travel policy that requires the policyholder to notify the insurer before having medical treatment at the insurers expense sounds reasonable. However, applying this when the policyholder is unconscious due to a medical emergency seems wrong. It wo
23、uld be helpful if the legal principle that justifies these different conclusions could be expressed in the PEICL. 2.3 How and when is agreement reached on the policy terms? Article 2:201 relates to the provision of pre-contractual documents. The list of information that must be provided has been spe
24、cified, but it is not clear that the significant features of the policy cover needs to be included. We know the Unfair Terms in Consumer Contract Regulations state that the subject matter of the contract is not be subject to the rules on fairness provided its terms are plain and intelligible. Most i
25、nsurers continue to regard that exception as meaning that the actual terms of cover, including the exclusions and limitations, are not to be judged by any particular standard of fairness. Sub paragraphs 2 and 3 of Article 2:201 suggests that even the provisions set out in Article 2:201 need not be p
26、rovided in advance of the conclusion of the contract. If this is the case, how is the insured to agree to the contract terms? The PEICL states that contracts may be concluded in writing or orally. This is a mixed blessing for consumers and SME, who may well seek to rely on advice or guidance offered
27、 to them during the course of the sales process when this has created an expectation in their mind. They may however be horrified to discover that the limited documentation they did see could be modified by the insurer during the course of the sales process if they were notified verbally by the insu
28、rer or intermediary of some supplementary terms. I would suggest that the PEICL must include some more detailed provisions relating to the means by which the extent of cover and the key terms of the insurance policies are agreed and how both parties are placed in a position to understand and to acce
29、pt or reject the obligations that they are entering into. 2.4 Multi benefit policies The annex to Article 1:103 seeks to break down forms of insurance cover into certain categories. These are then dealt with differently in the PEICL. However, it is a feature of policies in both the consumer and comm
30、ercial marketplace that heads of cover will be combined in a single policy. The different benefits or heads of cover are then offered under a single contract. Under English law at present insurers have the right to avoid the whole of the policy and all heads of cover in the event of a breach relatin
31、g to one area of cover, for example non-disclosure by the policyholder of a provision relating to one benefit, however minor. A single cheap and simple policy such as travel insurance may contain elements of the cover referred to in paragraphs 1, 2, 7, 9, 17, 18 and 19 of the Article. As marketing b
32、y insurance companies evolves, it is possible to see a simple household product for which will offer buildings, contents, legal expenses, and roadside assistance in the same policy. The PEICL needs to accommodate such. These provisions are revolutionary in terms of the laws of England and Scotland.
33、This remains probably the most contentious part of insurance law reform in the UK. The notion that the broker is acting on behalf of the insurer is simply not accepted and, it has been argued, will be fatal to the commercial broking sector in the London market. In short, if the principle underlying
34、Chapter 3 is to be pursued then a considerable amount of work will need to be done to explain its contractual implications for the three parties affected by it. If the role or responsibility of the agent is not addressed in the PEICL then this will introduce considerable uncertainty about the other
35、provisions of the PEICL and how they operate. I note that the CFR deals with commercial agents in some detail and follows the line of existing EU legislation in this field. If insurance intermediaries are not to be regarded in law as commercial agents then we may need to clarify with equivalent deta
36、il the basis upon which the identity of their principal is to be decided and the relative responsibilities of the parties. It is important for us all to remember, in this context, that the position of the banking sector in the consumer insurance marketplace needs to be addressed. The banks have in s
37、ome areas almost total control over the creation, terms, pricing and marketing of the insurance products. They merely “sub-contract” the underwriting to the lowest bidder. Nevertheless, the law in England has preserved the historic notion that they act as the agent of the either one side or the othe
38、r and normally of the consumer. That notion plainly conflicts with the economic reality and it is questionable whether PEICL could be implemented without addressing such fundamental concerns. 2.5 Other areas Other areas, in which I think the PEICL might usefully be supplemented, would include: (1) T
39、he consequences of failures by the parties to satisfy their obligations under the PEICL should be expressly stated. This has been done in most cases in the existing draft. However, in a number of circumstances it does not deal expressly with this, for example Articles 1:203, 1:204, 1:206, 2:102(4),
40、2:201 and elsewhere. Given the absence of recourse to national law the consequences may have to be clear in all instances. (2) The consequences of whatever may be finally included in respect of the legal status of brokers and intermediaries will need to be fully explored. I will return to this below
41、. It is difficult to approach the PEICL with anything other than admiration for those who have taken on the monumental and thankless task of attempting to understand and distil the variety of legal issues and legal provisions existing in European insurance law. My own past experience in leading and
42、managing legal and commercial departments in a number of multi-national groups operating across Europe has led me to the conclusion that there is considerably greater similarity in the underlying principles of contract law in European states than the traditional split between common law and civil la
43、w might suggest. Provisions as various as “good faith” and “latent defects” have some resonance and effect in nearly all of the jurisdictions in which I have had experience. I am therefore optimistic that the work of the Restatement of European Insurance Contract Law Group will not only provoke deba
44、te but would also provide a platform from which European insurance law will develop. My comments about the first draft have inevitably focused on what concerns me or what I believe might hinder its utility. However, I hope that the work will continue and I firmly believe that greater knowledge of, a
45、nd belief in the possibility of, an EU-wide framework of insurance contract law that could be given effect will serve to motivate insurers, national legislators and regulators to ensure that their own contract terms and law are within the acceptable mainstream of educated legal opinion. Sadly, at pr
46、esent I suspect that English insurance law will not find itself in that position. 译文 回顾欧洲保险法的原则 资料来源 : 时代论坛 S167-S175(2008)9 作者： Peter Hen Cliff 1. 介绍 我将 从 一位调查官受命的视角 来讨论， 在讨论的第一轮 欧洲保险法 (2007年 12 月 17 日 )时 意味着我最初的观点是 ,主要是来自考虑作为一种替代 欧洲保险法 的法律 ， 英格兰或苏格兰被提供的政策法律对消费者与中小企 业 (SME)市场 。然而 ,我也希望评论一些其他特色和方面 的
47、东西， 基于我的经验 ，对 商业保险以及其他欧盟起到很大作用。 草案引发了许多问题和意见而且还会诱惑人们通过各种各 样的工作的章程PEICL 和提高关系或作进一步的建议。但是 ,考虑到有限的时间和需要的贡献 ，会有 许多观点 ,我已经尽可能地专注于一定的更重要的问题 提出 草案 ,在我的心底 ， 我试图将这些 分 成三个主题 : (1)哪些项目 在 PEICL 里未作规定 。 (2)问题的担忧以及可在工作中实践。 (3)问题会影响所采用的 PEICL 在商业和中小企业的市场和深受消费者 青睐 的消费电子市场、保险和中介 。 2. 欧洲保险法里没有涉及到的 项目 我想增加一些问题 ,可能是发展建
48、设中提出的内容和考 虑 PEICL 的效果 ，仍有可能 会有 一些问题 ， 有可能 在接下来的 草稿 中 解决 : 2.1 达到目的 /摘要合理期待 /隐含的条件 所缺少的英国本法有关保险和真的 PEICL 概念 ,有重要的元素 ,消费者对保险合同或中小企业可以信赖和安全地将承担合同购买某一类型的政策。我有联系在一起的一些不同的法律概念 ,这些都是我的头球星期三提供多方位的或支持消费者与淳朴的中小企业的认购者。在商业化市场中 ， 小企业包括那些拥有保险经纪公司的建议 ,买方预计可理解 ,无论是在细节或从广义上讲罩的范围从这项政策中它们正在增长。然而 ,保险是被卖给消费者和小企业 ,没有受益任何
49、意见 ,我们需要考虑是否适宜法律应该把自己的 意志强加给供应商或基本台阶标准卖方根据的内容 ,他们所提供的保险产品。达到目的 ,暗示条款或保证 -术语可能会改变 -是困难的概念应用于保险 ,然而 ,消费者可能期望 ,也可能享有汽车保险或旅游保险或建筑保险。我们知道消费者很少会读政策文件 ,在销售过程中或许可不得促进。第三 2:201 PEICL 的 ,这表明 开始 他们 在 投保前 可能甚至都没有看到所有的保单的条款。因此他们是如何理解他们正在被提供或要做出选择 ,产品和相似的名字被提供于保险公司或中介机构在整个欧盟吗 ?在我们的工作中我们将介入这类问题。旅游政策这档节目的特点就是一幅滑 雪者 在 前封面上以及海滩和咖啡厅等 ,但是拥有一个排除为冬季运动可能已经发现 ,因此在mist-sold 歪曲了我们的视线。一个排除可能并不是明明 效果是理性预期 ， 相反的 是 一方纠纷进入政策误导营销文件。但其他的例子 呢 ?如果我们 以 旅行保险为例 ,可以依靠在消费者在法律上有什么特别的特征效果 ?能排除不承担任何责任保险公司海外医疗费用的全部损失财产 ,承运人不 承担 责任 ,承担任何责任保单持有人消耗酒精 ， 同时如果旅行 呢？我 知道试图 用 较大的信用卡公司 ,提供欧洲宽旅游保险其累计为基础 ,目的是逃离欧盟
