Insurance Contracts CP - Law Reform Commission

harmonisation of insurance contract law rules on a staged basis. 47 The first stage of this process, it was
suggested, would address:
(a) pre-contractual duties, mainly information;
(b) formation of the contract;
(c) insurance policy, nature, effects and formal requirements;
(d) duration of the contract, renewal and termination;
(e) insurance intermediaries;
(f) aggravation of risk;
(g) insurance premium;
(h) insurance on account of third party.
1.42 The conclusions and recommendations reached by the EESC included a reference to
unanimity of views by all interested parties and a need for gradual harmonisation, to take account of the
Commission‘s 1979-80 proposed Directive. 48
(4) The Restatement of European Insurance Contract Law – The Project Group
1.43 The task of formulating the rules that will seek to harmonise European insurance contract law
has fallen to the Project Group entitled Restatement of European Insurance Contract Law. This group of
academics, each with considerable expertise in insurance contract law, has been active since 1999 and,
in 2005, the Project Group was included in the European Commission sponsored Network of Excellence
on European Contract Law (CoPECL). As two of the leading lights in the Project Group have
acknowledged, 49 the Project Group has followed the EESC suggestion that harmonisation of the General
Part of Insurance Contract Law is to be a starting point, the focus being on mandatory rules for use in
mass-risk insurances. However, 50 the Principles of European Insurance Contract Law (PEICL) 51 that
have emerged are envisaged as a semi-mandatory code that may serve the parties to an insurance
contract as an optional instrument, a 28 th regime of insurance contract law in Europe. The Project Group
however see the PEICL as mandatory in the sense that, once selected, the PEICL provides all the
relevant contractual rules: the parties are not to be free to cherry-pick individual rules. The Project Group
explain some of the advantages of an optional instrument thus:
―An optional instrument would allow parties to conclude their contract on the basis of European
law instead of national law. This option would offer advantages particularly to ―multiple
players‖, such as entrepreneurs doing business in the European internal market, who would
not have to be concerned with the impact of diverging national contract law regimes on their
transactions. The costs of legal research and adaptation of the contract to each national
system of contract law would disappear. Moreover, an optional instrument would allow for
efficient cross-border use of the Internet in order to sell standard policies. For euro-mobile
policyholders an optional instrument would provide a stable contractual framework that is not
subject to the changing national law of their domiciles.‖ 52
1.44 The Commission has found the work of the Project Group to be of considerable assistance in
elaborating proposals in this Consultation Paper on how Irish law should be reformed. Some of the
provisional recommendations are based on the PEICL but the Commission is conscious of the need to
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50
51
52
CESC 1626/2004, para. 6.3.1.
CESC 1626/2004, para 7.5.
Clarke & Heiss, ―Towards a European Contract Law? Recent Developments in Brussels‖ [2006] JBL 600 at
602.
Ibid.
Sellier, 2009.
Ibid, para 135.
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