Insurance Law and International Business - Essay Example

Insurance Law and International Business al Affiliation) TABLE OF CONTENTS ……………………………………………………………………………..….3 Introduction……………………………………………………………………….…..…..4 Insurance Law………………………………………………………………………..……6 Principles and Concepts of Insurance…………………………………………….7 Nature of Insurance Contracts…………………………………………………….10 Features of Insurance Contracts………………………………………………..…10 International Business Transactions………………………………………………………14 Law of International Trade………………………………………………………………..17 Private Insurance Law…………………………………………………………….17 Legal and Commercial Principles in Project Financing Transactions……………………..18 Trade and Investment Law…………………………………………………………………19 Conclusion…………………………………………………………………………………..21 Bibliography…………………………………………………………………………………22 Abstract This paper analyzes the role of insurance laws in governing international business as well as the influence of dissimilarities concerning national contract laws with that of international insurance industry with the aim of giving liberty to deliver services and the freedom to implement these laws. The obligation is to perform an investigation so as to assist in probing whether dissimilarities in contract laws are a stumbling block to international business in insurance products. This is not concerned with the other dissimilarities which may affect international insurance business. However, this investigation identifies the implication of such other dissimilarities; in which some are genuine, financial and social while others pertain to areas of the law diverse with contract law, especially to commonsensical regulation besides taxation. These dissimilarities comprise of: knowing your customer, language, consideration for the real risk suggested for cover, culture, plus prospects of the native policyholder, the prerequisite to handle local claims, the procedure and occurrence of scams, tax law environment, labor law environment, the lawful, monitoring and managerial environment, and international compensation options. This paper draws its arguments on expert knowledge and know-how by referring to statistical data except where unambiguously stated. INTRODUCTION Insurance is a universally known model that pronounces the act of protecting against risk that may befall the insured. The individual in quest of an insurance policy is called the insured while the firm that receives the insurance premium from the individual to cover a risk is referred to as the insurer. The price is referred to as an insurance premium which can be used by the insured to cover many risks. Insurance reinforces a healthy and successful society, empowering businesses and people to safeguard themselves against risk1. It is is not only essential for a distinct customer or entrepreneur but also has implications for the general economy, reinstating businesses to better conditions after natural catastrophes such as hurricanes and floods. In addition, insurance products and services are also vital in international business. Insurance undertakings include insurance, reinsurance and coinsurance, in addition to undertakings unswervingly related to insurance. These undertakings of insurance are well-thought-out to include insurance contracts, implementing insurance contract requirements and going through the procedures for prevention and reducing the risks involved that might jeopardize the insured possessions and individuals2. Coinsurance undertakings are deliberated to be concluding and implementing insurance contracts in a pool of insurers who come together and agree to have a combined coverage and risk distribution. Reinsurance undertakings are reflected to conclude and implement reinsurance contract requirements on taking up insurance contracts from another company who have insured surplus risks which go beyond their amount of self-retention. This arrangement can only be done by insurance companies who are legally licensed to perform reinsurance activities. Activities openly associated with the insurance industry include: defining and valuation of risks and claims, brokerage and agency, sales brokerage as well as the sale of the remnants of the insured dented objects and executing other logical and methodological services pertaining to insurance undertakings. Resting on the above essentials of an authorized contract, there are additional principles that govern the insurance contract. These consist of: Uberrimae Fidei (Utmost good faith) Contribution Proximate cause Surrogating Insurable interest Indemnity Loss of Minimization These distinguishing features are legally pertinent to all categories of insurance contracts. They provide course of action in which insurance agreements are carried out. They are for that reason needed for a clear understanding of insurance contracts and supports accurate cessation of contracts, payment of claims, implementation of rules and unbiased award of judgments in case of difference of opinion3. Firms that sell Islamic insurance are continuously mandated to seek for reinsurance so as since it is the core of Islamic Insurance. This is due to the fact that the Islamic insurance firms’ capitals are unable to cover the costs of disastrous compensations which are insured since the damages might reach a huge number of people who would need to be compensated. Consequently, these firms had to have a monetary cover to empower them to recuperate the magnitudes of these costs. This cover is delivered by the Reinsurance Companies. Insurance law bridges the gap between potential risk and a healthy business environment so that any damage caused to the business is compensated for the smooth running of activities. According to Ahmed, et al.,: Credit should be provided to the Islamic Banks which had a distinctive and effective role in establishing, supporting, and caring for Islamic Insurance Companies and helping them to succeed. Many of these companies originated from Islamic Banks. In addition, Islamic Banks insure their properties and the properties of their customers in these companies. Furthermore, Islamic Insurance Companies deposit and invest their money in the Islamic Banks4. INSURANCE LAW Insurance is a treasured risk-financing instrument. A small number of businesses have the investments or funds required to undertake the risk on their own and recompense the total costs after a loss has occurred. Procuring insurance, nevertheless, is not controlling risk. A detailed and considerate risk management strategy is the obligation to inhibit harm. There are categorizations of insurance laws that revolve around insurance companies5. To begin with, after an insured party signs up for an insurance policy, the insurer is required to appoint insurance defense attorneys to stand in for the insured. For example a vehicle insurance company is mandated to employ lawyers on behalf of their client (a driver) who is sued for inflicting injuries to another driver. The other category is when an insurance company hires attorneys for ensuring that the firm complies with the stipulated insurance laws and regulations that differ by national interests. The other one is an applicable insurance law that assists the insured to follow up on insurance claims and ensure they are paid in time. Nation states employ various kinds of insurance but insurance law often deals with private insurance in which the common types include health insurance, life insurance, vehicle liability insurance, title insurance, homeowner’s insurance and malpractice insurance. Principles and Concepts of Insurance I. Utmost Good Faith (Uberrimae Fidei) The above primary principle of insurance is based on the notion that both the insurer and the insured must develop faithfulness towards each other. This is proved by the insurer giving all the necessary information that is clear and valid to the insured regarding the terms and conditions of a contract. All insurance contracts apply this principle and in depth it means that an insurance contract must have at least two parties, the insurer and the insured in utter good faith, trust and belief. The insured must disclose all the necessary information regarding the property to be insured. The liability of the insured can be legally revoked if any information critical to the subject matter is withheld, falsified, omitted or wrongly presented6. II. Insurable Interest This principle directs that the insured must possess insurable interest in the insurance policy. It is named as life insured when it comes to life insurance, but in marine insurance, the principle is in force during the time of policy taking and if a loss occurs. Its existence in fire and general insurance is during policy taking and occurrence of loss. An insured has an insurable interest if he is the owner of the insured property and its presence gains him some interest so that in case of damage to it, it equals to a loss. For instance: The possessor of a cab has insurable interest in the cab since he receives revenue from it. But then again, its sale will render his insurable interest null on the cab. Therefore it can be concluded that, possession plays a central role in assessing insurable interest. III. Indemnity This refers to security, safeguard and compensation offered when a loss, injury if damage occurs. This principle clarifies that an insurance contract is deemed to safeguard against financial losses which are unpredictable and might occur due to forthcoming uncertainties. The insurance contract does not help in making profits but to offer compensation in case of a financial loss or damage. The compensation is never paid if the specific loss or damage took place outside the stipulated period signed for by the contract terms. It is only in life insurance that the principle of indemnity does not apply since money cannot be valuated with life. IV. Subrogation Subrogation simply means replacing one creditor with a different one. This principle is a leeway and another effect of the indemnity principle. It also relates to all indemnity contracts. It states that immediately the insured property is compensated or replaced for the losses or damages, then the possession right of that property moves to the insurer. This only applies if in the event of a loss or damage, the property still has value. The benefits derived from the principle of subrogation by the insurer only goes to the level of the amount paid as compensation to the insured. For instance7, Mr. Nigel insures his car for $3 million. After six months the car is completely demolished by the carelessness of his neighbor Mr. Max. The insurance firm shall settle the claim of Mr. Nigel for $3 million. Concurrently, it can sue Mr. Max for $3.5 million, the market price of the car. If the case goes against Mr. Max, the company then collects $3.5 million from Mr. Max, and retains $3 million (already remunerated to Mr. Nigel)in addition to other expenses like court levies. The firm sues Mr. Max in the insured’s name by the law of tort. V. Contribution Principle of Contribution comes as a result of the indemnity principle. It relates to all the contracts of indemnity, especially if there is more than a single policy taken by the insured for the same risk. It states that a claim can be requested by the insured for compensation of an actual loss either from all insurance companies or any of his choice then that company is allowed to claim proportionate claim from the other brokers. For instance, Mr. Nigel insures his business worth $1 million with two insurers "Merger Ltd." for $900,000 and "Futuristic Ltd." for $600,000. Nigels actual property damaged is costs $600,000. Mr. Nigel is free to claim the full cost of damage of $600,000 either from “Merger Ltd” or “Futuristic Ltd” or rather split the cost of damage between the two companies. VI. Causa Proxima Principle of Causa Proxima is a Latin phrase meaning the Principle of Proximate or nearest Cause. It explains that when a loss is triggered by more than one reason, then the one to be regarded as the definite cause is that which has the closest probability to resolve the liability of the insurer. The principle positions that to realize if the insurer is accountable for the damage or not, the closest and not the distant must be considered8. VII. Loss minimization With reference to this principle, the insured must constantly put an effort to lessen the risk of a loss of his insured possessions, if circumstances such as fire outbreaks or explosions occur. The insured has a duty to take all imaginable measures and basic steps to regulate and lessen the losses in such a situation. The insured must not disregard and conduct himself recklessly during such occasions just for the reason that the asset is insured. Therefore it is a duty of the insured to safeguard his insured possessions and avoid additional losses. Nature of Insurance Contracts An insurance contract is an arrangement in which one party, referred to as the insurer, carries out, in return for a decided deliberation, referred to as the premium, to recompense the other party, referred to as the insured, a certain amount of money or its corresponding in kind, upon the occurrence of a stated event subsequent to a loss to the insured. The policy is a manuscript that shows the confirmation of the insurance contract9. Features of an Insurance Contract Even though contracts’ important concepts and elements have similarities, insurance contracts are unique since they are characterized by some elements not found in general contracts. They include: a) Aleatory An Aleatory contract is if one party is liable to receive significantly more in worth than what he gives up under the conditions of the agreement. Most insurance contracts are of this kind for the reason that, considering the number of possible outcomes, the insured or his beneficiaries may get considerably more in claim profits than what the insurance company was paid for the risk cover. Conversely, the insurer might also retain considerably more money than the insured when a clam is not asked for. b) Adhesion This is when one party comes up with an insurance contract and gives it to the other party without any consultation. The receiving party does not have an option to negotiate, study of remove some parts of the contract. Insurance contracts take this form since it is the insurance company that draws the contract, presents it to the insured in a take it or leave it basis. c) Utmost Good Faith It is obvious that all contracts should be consented to by utmost good faith. However, insurance contracts are heightened with this characteristic which should be adhered strictly by the parties. Owing to the structure of an insurance contract, each party is legally entitled to trust the exemplifications and affirmations of each other about no efforts to defraud, misinform, or camouflage information and is undeniably showing themselves in good faith. Each party has a responsibility to disclose all substantial information10 d) Executory This is one in which the agreements of the parties to the contract stay partly or wholly unfulfilled. Insurance contracts unavoidably fall in this exact description. As indicated in the insurance contract, the insurance company will only execute its duty after specific measures are taken (losses occur). e) Unilateral A contract can be bilateral or unilateral. Bilateral contracts have both parties exchanging assurances. But in a unilateral contract, one party’s assurance is substituted for a particular deed of the other party. This is the nature of insurance contracts; the insured pays the policy premium, and the insurer assures to compensate the insured for any losses that might come about. It should be highlighted that immediately the insured pays the policy premium, he has no other obligation but only the insurer is bound by the covenant and can be held accountable for breach of contract. f) Conditional A condition is an element in a contract which restricts the privileges provided by the contract. Even if a loss takes place, certain conditions have to be adhered to in advance before the contract can be validly applied. For instance, the insured or beneficiary must fulfill the condition of giving sufficient proof of loss, or show that he has an insurable interest in the individual being insured. There are two rudimentary kinds of conditions. These include both precedent and subsequent conditions. A condition precedent takes place when an occurrence has to take place or be executed before the approval of a contractual right. For example, an insured has to go through an illness before he is served with medical benefits. Furthermore, benefits can only be passed to the only after the insured is dead. On the other hand a subsequent condition is an occurrence that takes place to nullify a contractual right. For instance, a suicide clause: if an insured takes away his life between the effective date and two years of an insurance contract (typical suicide) in any circumstance, the life insurance contract is null and void. 11 g) Personal Contract Insurance contracts are typically personal covenants concerning the insurance firm and the insured person, and are not movable to a different individual without the permission of the insurer. For example, if a car owner sells his vehicle and no facility is given to the buyer to keep serving the car with the current car insurance policy, (in reality, would merely be the having of the new policy) then the cover stops serving its cause if it is transferred to the buyer. h) Warranties and Representations A warranty is a declaration that is deliberated and assured to be factual and, once professed, turn out to be a definite portion of the contract. Characteristically, a breach of warranty delivers adequate grounds for the agreement to be cancelled. Equally, a representation is a declaration that is alleged to be factual to the best of the other partys understanding. For one to invalidate a contract based on a falsification, a party must verify that the distorted information is certainly material to the contract. Consistent with the most state laws and in most situations, the answers that an individual provides on an insurance submission are deliberated to be a representations, not warranties. i) Misrepresentations and Concealments A misrepresentation is a written or oral false proclamation. Generally, for an insurance company to cancel a contract for the reason that the information was misrepresented, the information must be substantial to the conclusion to lengthen coverage. Concealment, is the hiding information that one obviously knows about. To cancel a contract with the reasons of concealment, the insurer characteristically must verify that the claimant willfully and purposefully concealed information that was substantial in nature. j) Fraud Fraud is the premeditation to coax, cheat, or trick an individual in a determination to gain some degree of value. Even though misrepresentations or concealments may be geared to commit fraud, in no way are all misrepresentations and concealments acts of fraud12. INTERNATIONAL BUSINESS TRANSACTION a) The economic consequence of liability insurance From an economic perspective, liability insurance only covers a small percentage of the premiums paid in the European insurance market, for instance. In actual fact, latest data confirms that approximately 11% of the premiums which are not related to life insurance are received through this branch of insurance; furthermore, it appears that, with mention of liability insurance, only 26 billion Euros of payments were collected as premiums in the European market in 2011 only. These statistics take account of Iceland, Norway, Switzerland, Turkey as well as Liechtenstein13. All the same the insignificant economic prominence of the sector with regard to collected premiums has no uncertainty that liability insurance acts as a much superior role for the insured individuals, i.e. for consumers, professionals and enterprises who insist on a liability insurance policy: indeed, once a liability insurance is in place, they can easily strategize on their forthcoming activities as well as their economic commitments and, therefore, grasp a better risk management. Additionally one has to pay attention to the social influence of liability insurances in a number of markets. It is a shared observation that liability coverage has a vital role to play in enabling transactions between the economic performers. Generally speaking, the importance of liability insurance is much bigger than it appears on the heart of the only premium revenue of European insurance firms got from this branch of insurance. b) The Intricacy of Liability Insurance in Private International Law Liability insurance is tremendously complex. This complication is the result of numerous varied factors: To begin with, liability insurance usually takes in over two parties which includes the insured, victims, policyholder and possibly accountable parties and beneficiaries. Secondly, several rules border both the contractual as well as extra-contractual liability. In addition, the contract in query and lastly there is a certain association with the local legislation on the subject of the liability risk protected. The complexity develops from two fixed subjects: the link of processes on liability insurance in addition to the arrangement of laws, and the portrayal of both the insurance contract law and general liability law14. All that is concerned with private international law, the Rome I Regulation has passed important rules about the law pertinent to non-life insurance undertakings, thereby mainly making a replication of the Second Directive on Non-Life Insurance. Such provisions restrict the likelihood of the host nation to enforce utilitarian rules for international contracts settled with foreign companies or to endorse rules on choice of law resulting into the presentation of a diverse legislation to the contract. Apart from the said synchronization of rules, the appropriate laws give rise to many difficulties and inconsistencies which will be more carefully explained. c) The intricacy of liability insurance in general liability law and insurance contract law The prior statement about direct claims clarifies that the liability of the insurer in liability insurance can be contingent on rules which form diverse parts of the legal system. A difference must be distinguished between rules with regard to national liability organizations and procedures of insurance contract law. Whereas dissimilarities between the past legal rules are not a section of the directive of the Expert Group, dissimilarities between national organizations of liability insurance contract law can be found within the directive. For instance, a rule instituting the liability of a doctor in relation to the patient is not contained in the view of insurance contract law, disagreeing with the doctor’s claim for compensation against the insurer. Similarly, a rule that recognizes the recoverable injuries for the tort victim cannot be part of the insurance contract law in addition to that of the Expert Group’s mandate. It monitors that while studying liability insurance, several relevant rules occur at the national level and cannot be regarded as insurance contract law in a constricted sense, as the latter is meant to standardize the connection between the individuals and companies involved in the insurance contract. LAW OF INTERNATIONAL TRADE Private International Law a) Mass risks Private International Law in connection with themes about insurance has for all intents and purposes been integrated in Europe by: Regulation (EC) No 44/2001 (Brussels I, Regulation (EC) No 593/2008 (Rome I) and Regulation (EC) No 864/2007 (Rome II)15. Generally, these Guidelines form the subsequent framework for cross-border establishment of insurance services: Brussels I permits policyholders to convey actions against an insurer in the domestic courts, thus exposing insurers to foreign jurisdiction. Conflicting jurisdiction sections are only binding in definite cases, such as in large risk insurance. Rome I proposes the use of the law of the nation in which the risk is located which in most circumstances of mass risk insurance the policyholder is usually resident. The lawmaker has implemented this system so as to safeguard the fragile party. The choice of law for this party is not at liberty; as an alternative it is restricted to a wide-ranging list of limited choices. Member States are, on the other hand, allowed to have the freedom to choose better law enforcements. Therefore, in mass risk insurance, an insurance firm servicing cross-border will be unprotected from the use of foreign law on the whole while this regulation means for the customer that he can depend on domestic law of his country. But, simultaneously, this can result into a condition inhibiting consumer insurance, for instance on divorce, a Chinese father might need to apply for a UK life insurance contract in order to provide a sterling pound sum to be paid on his demise to offer upkeep for his family residing in the UK. In this illustration, the Chinese father would only be able to acquire a contract from a United Kingdom insurer certified to perform such insurance dealings in China, he could not do so from China with a firm giving insurance administered by Chinese law. b) Large Risks Contrastingly, large risk insurance is governed by the law of the nation where the insurance firm is located. Furthermore, parties delight in the liberty to choose law. However, the parties agree that the choice of law is able to carry the costs of the claim of local compulsory law. LEGAL AND COMMERCIAL PRINCIPLES IN PROJECT FINANCING TRANSACTIONS Risk Management Insurance firms will undoubtedly use the above term only when referring to pure risks, but they can possibly limit it even further to insured risks only. Consequently, when underwriters mention “risk management”, they may perhaps be mentioning ways of decreasing or refining the insured loss potential of the risks that the insured are insuring against, or being requested to cover; as a distinct field of understanding and investigation, risk management may be thought out to be a branch of management seeking to pinpoint, enumerate and manage risks, whether pure or speculative, that intimidate an organization16. Tools of risk handling include: a) Risk avoidance: eradication of the unplanned loss of a definite kind by not revealing oneself to the danger. For example, deserting a geothermal power project in an attempt to eradicate the risk of geothermal accidents. b) Loss prevention: the reduction of the occurrence of recognized probable losses. For instance, activities endorsing industrial welfare. c) Loss reduction: the reduction of the ruthlessness of well-known probable losses. For example, programmed sprinkler system. d) Risk transfer: making a different party swallow the costs of one’s exposure to loss. For example acquisition of insurance as well as contractual terms shifting accountability for probable losses e) Risk financing: Regardless of how operational the loss control procedures a business takes, there will linger some risk of the organization being undesirably affected by imminent loss occurrences. A risk financing strategy is to reduce the effect of such losses on the organization. TRADE AND INVESTMENT LAW When it comes to trade and international law the commercial agent plays the protagonist role. The agent’s core task is composed of searching the market, enticing customers, endorsing the sale or buying of products and discussing the contractual terms which will be settled upon between the insurance firm and the seller. The agent might also be delegated with closing contracts for the insurance company. The commercial agent at all times acts self-reliantly and in the best interests of the insurer17. A commercial agency contract may be for a specified or unspecified period of time. The insurer must compensate the commercial agent. If the parties have specified that there will be no remuneration to the agent, this Chapter relates through correlation where suitable. An insurer who needs to be vigorous in a particular area may settle an agreement with a commercial agent so as to discover whether particular products will be effective in a certain region or with a definite group of customers. The agent does all the preliminary work, which allows the insurance firm to settle contracts more effortlessly, specifically without investing highly and administering high risks. The agent possibly will, as a freelance in-between, organize its undertakings as it thinks appropriate18. Even though the agent must observe sensible instructions given by the insurer, the latter is not able to affect the agent’s liberation. CONCLUSION The above analysis of insurance law has clearly shown how important it is in international markets which is the core business model for the import and export industry. Insurance law covers risks for most individuals and businesses so that there is a smooth flow of activities without fear but with courage. Insurance law bridges the gap between potential risk and a healthy business environment so that any damage caused to the business is compensated for the smooth running of activities19. It is a buffer that businesses have to use to realize their objectives in a timely fashion, by venturing into risky activities that will eventually result into profits. The assumption drawn from this investigation over these different laws is that the existence or nonexistence of direct third party entitlements may generate costs of dissimilar nature such as procedure costs, costs for drafting dispute resolve rules in a contract, costs of enquiry in which a claim is conveyed by an individual who supposedly underwent a loss from the bearing of a policyholder. Bibliography Airmic, (2011), Disclosure of Material Facts and Information in Business Insurance. Boivin, D. (2004). Insurance law. Toronto: Irwin Law. Buckley, A., & Buckley, A. (2006). Insurance law (2nd ed.). Dublin, Ireland: Thomson Round Hall. Bustros, G. (1974). Insurance law. Beirut: Bureau of Lebanese and Arab Documentation. Carr I., and Goldby M, (2013), International Trade Law Statutes and Conventions 2011-2013, Routledge. Carr I & Stone P, (2013), International trade law, Routledge. 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