https://doi.org/10.31261/PPPM.2014.15.02
There is a broad doctrinal consensus that the policyholder, the insured and the third party beneficiary can be considered as the “weaker party” in respect to the insurer. It is also generally accepted that these categories of private parties should be protected not only under the provisions of substantive law but also by means of the private international law. The crafters of the Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) have adopted this position. As a consequence, the Regulation provides several potential instruments for safeguard of the weaker party to the insurance contract. These include not only the framework of specified conflict of law rules in relation to insurance contract (article 7) but also public policy clause (article 21) and several other choice of law mechanisms (articles 3(3), 3(4), 4(3) and 7(2) 2nd sentence). These instruments may not always provide an effective vehicle for the weaker party protection. In consequence, the doctrine of overriding mandatory rules may play a significant role in the discussion on that aspect of modern private international law. Contemporary doctrine attempts to distinguish two categories of the overriding mandatory rules, namely lois de police “de direction” and lois de police “de protection” (lois de police protectrices). The lois de police “de protection” do not primarily protect the interests of the State, but rather those of the individuals. The lois de police protectrices apply only when the rule of law applicable does not provide a desirable level of protection. Furthermore, according to one of the position taken by the doctrine, scope of application of these provisions is not based on territoriality. Approach favorable to the protective lois de police is characteristic for French jurisprudence and judicature, while German scholars tend to restrict the notion of overriding mandatory rules to the lois de police “de direction”. Analysis of the French Cour de Cassation judgments provide practical examples of application of this doctrine and allow to evaluate the concept of the mandatory rules based on the protective principle in relation to insurance contract. According to this approach the rules crafted in order to protect the policyholder or the insured can be perceived as the overriding mandatory rules of private international law as long as they seek to preserve the essence of an insurance contract, its essential functions or basic principles of insurance law. Notwithstanding the general tendency to protect the weaker parties, the notion of overriding mandatory provision should be interpreted strictly. Their intervention is desirable only if from the perspective of lex fori the application of lex contractus would undermine the concept of insurance as an effective risk transfer mechanism.
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Vol. 15 (2014)
Published: 2014-12-31
10.31261/PPGOS
This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.
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