An assigned marine insurance policy was subject to a claim. The issue was the ability of an assignee to claim as a claim in contract where the proper law was that under which the contract was made, or a claim of an intangible right to claim against insurers, a proprietary right resolved by the lex situs of the attached debt, namely France. A three stage process was identified, involving the characterisation of the issue in question, the selection of the rule of conflict of laws which lays down a connecting factor for that issue and the identification of the system of law which is tied by that connecting factor to that issue, the overall aim being to identify the most appropriate law to govern the particular issue. This process of characterisation ‘falls to be undertaken in a broad internationalist spirit in accordance with the principles of conflicts of laws of the forum, here England.’ This claim fitted more readily a contractual model.
Mance LJ spoke of the principles governing the identification of the appropriate law, saying: ‘The overall aim is to identify the most appropriate law to govern a particular issue. The classes or categories of issue which the law recognises [when characterising the relevant issue] are man-made, not natural. They have no inherent value, beyond their purpose in assisting to select the most appropriate law. A mechanistic application, without regard to the consequences, would conflict with the purpose for which they were conceived.’
. . And: ‘There is a rule of practice that the assignor should be joined, but that rule will not be insisted upon where there is no need, in particular if there is no risk of a separate claim by the assignor.’
Judges:
Aldous LJ, Mance LJ, Charles J
Citations:
Times 21-Feb-2001, Gazette 01-Mar-2001, [2001] EWCA Civ 68, [2001] CLC 84, [2001] 3 All ER 257, [2001] Lloyds Rep IR 460, [2001] 1 LLR 597, [2001] 1 Lloyd’s Rep 597, [2001] 1 All ER (Comm) 961, [2001] 2 WLR 1344, [2001] 1 QB 825
Links:
Statutes:
Convention on the Law Applicable to Contractual Obligations (1980) 12, Contracts (Applicable Law) Act 1990
Jurisdiction:
England and Wales
Citing:
Appeal from – Raiffeisen Zentralbank Osterreich Ag v Five Star General Trading Llc and Others QBD 21-Jun-2000
A marine insurance policy governed by English law but made with French insurers was assigned, but notice of the assignment was not made according to French law through a bailiff. Nevertheless recovery under the policy was ordered. Under the Rome . .
Cited – Macmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) CA 2-Nov-1995
The question of ownership of a company is to be decided according to law of country where the company is incorporated. Conflict of laws rules are to be used to look to the issue in the case not the cause of action.
Staughton LJ said: ‘In any . .
Cited by:
Cited – Knight v Axa Assurances QBD 24-Jul-2009
The claimant was injured in a car accident in France. The defendant insurer said that the quantification of damages was to be according to French law and the calculation of interest also. The claimant said that English law applied.
Held: The . .
Cited – Buhr v Barclays Bank plc CA 26-Jan-2001
The bank took a second charge over property, but failed to get it registered. The chargors fell into debt and bankruptcy, and the property was sold. The proceeds were used to discharge the first charge, and then repay unsecured creditors. The bank . .
Cited – Iran v Berend QBD 1-Feb-2007
The Republic of Iran sought the return of a fragment of ancient Achaemenid relief in the possession of the defendant, saying that it was part of an ancient monument. The defendant said that she had bought it properly at an auction in Paris. The . .
Cited – Gorjat v Gorjat ChD 29-Jun-2010
The claimant, daughters of the deceased by his first marriage challenged a transfer of a significant sum by their father before his death, saying that he lacked mental capacity. . .
Cited – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
Lists of cited by and citing cases may be incomplete.
Insurance, Jurisdiction
Updated: 19 May 2022; Ref: scu.85641
