Suchergebnisse

The Principles of European Insurance Contract Law, also referred tousing the acronym PEICL, were published in September 2009. They are the result of ten years of academic work undertaken by the"Restatement of European Insurance Contract Law" Project Group. In the time since its establishment in 1999, the project has been transformed from being a stand-alone project to a part of the CoPECL (Common Principles of European Insurance Contract Law) network, drafting a specific part of the Common Frame of Reference. Having continually worked under the guiding principle that "the law of insurance [in Europe] must be one," it now represents a serious option for providing Europe with a single legal framework for insurance contracts.Despite the European Council's proclamations that the Common Frame of Reference will remain a non-binding instrument, the implementation of one or more optional instruments in the future does not appear to beimprobable considering recent developments. The possibility of anoptional instrument has been expressed more than once by the European Commission in its Action Plan and Communication on European Contract Law. Other indications in favour of an optional instrument include the European Parliament's repeated references to the Common Frame of Reference as providing, at the very least, a model for a futureoptional instrument, as well as the EESC's earlier proposal of anoptional instrument as an alternative to standardising insurancecontract law. The preparation by the EESC of another (own-initiative) opinion on European contract law is underway, and its presentation is anticipated in 2010. Hence, the optional instrument is evidently the subject of serious political deliberation. Using Article 1:102, the Principles of European Insurance Contract Law represent a prototype for such an instrument.

The EC Commission is considering the enactment of an optional instrument of European Contract Law. From a common market perspective such instrument will only be successful if it covers areas of mandatory law (consumer protection and insurance). A fundamental question relates to the regulatory model that could be used to provide parties with an option to choose the instrument. Legal literature proposes a change of Art. 3 para. 1 of the Rome Convention to the effect that an optional instrument may be chosen as the lex causae of a contract. There are, however, several technical problems making this regulatory model burdensome. This is particularly true with an optional instrument covering areas of mandatory law (?non-optional elements?).
A second model would be to implement a rule on direct applicability similar to Art. 1 para. 1 lit. a) CISG. However, since a European optional instrument would cover all types of contracts, it would be very hard if not impossible to find a proper rule of direct applicability for all possible cases. Therefore, an optional instrument should simply be enacted as an EC regulation establishing substantive contract law that is directly applicable in all member states and providing parties with an option. The choice granted in the optional instrument would thus depend on the applicability of the law of an EC member state to the contract. An analysis shows that such a regulatory approach would produce the best results.