Private International Law of Reinsurance and Insurance
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9
LEGAL REGIMES DETERMINING CHOICE OF LAW
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B. IDENTIFYING THE APPLICABLE REGIME
1. Overview
9.9 The various regimes draw a fundamental distinction between contracts of insurance and contracts of reinsurance. Provided the contract of reinsurance was concluded on or after 1 April 1991, the Rome Convention will apply. Contracts of reinsurance concluded before that date will be governed by the common law. 9.10 So far as contracts of insurance are concerned, the Rome Convention will only apply to contracts of insurance covering risks situated outside the territories of the Member States of the European Union. Again, where such contracts were concluded before 1 April 1991, the common law will apply. 9.11 As regards contracts of insurance covering risks situated in the territories of the Member States of the European Union, the Insurance Directives will apply. These distinguish between contracts of “general insurance” (or “non-life insurance”) and contracts of “long-term insurance” (or “life insurance”). The Directives will apply to non-life insurance entered into after 1 July 19907 and life insurance entered into after 20 May 1993.8 Contracts concluded before those dates will be governed by the common law. 9.12 A flow diagram, identifying which regime applies when, is shown in Appendix 2.1. In the following sections, the Rome Convention will first be considered, and then the Insurance Directives.2. Scope of the Rome Convention
9.13 The Rome Convention applies to “contractual obligations” in any situation involving a choice between the laws of different countries. The basic question of what is a contract has already been considered in the context of Article 5(1) of the Brussels Regulation (whichPage 209
“The rules of this Convention do not apply to contracts of insurance which cover risks situated in the territories of the member states of the European Economic Community. In order to determine whether a risk is situated in those territories the court shall apply its internal law.”