Lagval för förrsäkringsavtal : särskilt utrymmet för partsautonomi
The globalization and the realization of a European common insurance market have increased the importance of cross border insurance contracts. Despite that, a gathered set of rules regulating cross border insurance contracts does not exist. The sets of rules within Private International Law which arises today when determining the applicable law regarding cross border insurance contracts are the law of 1993 on applicable law to certain insurance contracts (the law of 1993) and the law of 1998 on applicable law to contractual obligations (Rome Convention). Since the Rome Convention is the only Community instrument which still is in the form of a treaty, work has been done in order to convert it into a regulation, called the Rome-I-regulation. Therefore, the future Rome I-regulation is of importance for the thesis as well since it most likely will replace the Rome Convention.
Swedish law is based on the principle of party autonomy, which means that the contracting parties have the right to freely agree on the content of the contract, including the choice of law. However, the thesis shows that some limitations to the parties’ freedom of choice does exist in the different sets of rules. The thesis also examines how the two sets of rules differ concerning the extent of the freedom of choice of law. Further, the thesis investigates the distinction between the rules regarding the choice of law within the same set of rules. In addition, the objective choice of law in accordance with the sets of rules is discussed.
Which of the sets of rules that is applicable on a certain insurance contract is often difficult to foresee, particularly for someone who is not familiar with the legal systems. It is even more complicated to determine which provision in a certain set of rules that is applicable on a contracting party. Article 3 in the Rome Convention permits party autonomy regarding the choice of law in a business to business relation.
When the contract involves a consumer, the party autonomy is reduced. Here, article 5 in the Rome Convention allow the parties to choose applicable law, but the choice shall not have the result of depriving the consumer of the protection afforded to him by the mandatory rules of the law of the consumer’s country. A problem that the provision brings is that most of the insurance consumer contracts fall outside its scope since they rarely meet the criteria which the provision sets out. Instead the consumer contracts normally fall under the provisions in article 3, especially developed for businessmen on an equal level.
The law of 1993 differ between small and large risks. A free choice of law is basicly only allowed when the insurance contract involves a large risk, which mainly includes risks insured by larger companies. When the insured risk is defined as a small risk, the choice of law is limited. Only under certain circumstances are the parties allowed to choose another law than the law in the country where the policy-holder has his habitual residence or central administration, or the law of the country where the risk is situated. Insurance contracts regarding small risks are usually signed by private persons or, to a certain extent, small- or medium sized companies.
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