Abstrakt: | There is a broad doctrinal consensus that the policyholder, the insured and
the third party beneficiary can be considered as the “weaker party” in respect to the
insurer. It is also generally accepted that these categories of private parties should be
protected not only under the provisions of substantive law but also by means of the private
international law.
The crafters of the Regulation (EC) No. 593/2008 of the European Parliament and
of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)
have adopted this position. As a consequence, the Regulation provides several potential
instruments for safeguard of the weaker party to the insurance contract. These include
not only the framework of specified conflict of law rules in relation to insurance contract
(article 7) but also public policy clause (article 21) and several other choice of law mechanisms
(articles 3(3), 3(4), 4(3) and 7(2) 2nd sentence).
These instruments may not always provide an effective vehicle for the weaker party
protection. In consequence, the doctrine of overriding mandatory rules may play a significant
role in the discussion on that aspect of modern private international law.
Contemporary doctrine attempts to distinguish two categories of the overriding
mandatory rules, namely lois de police “de direction” and lois de police “de protection”
(lois de police protectrices). The lois de police “de protection” do not primarily protect the
interests of the State, but rather those of the individuals. The lois de police protectrices
apply only when the rule of law applicable does not provide a desirable level of protection.
Furthermore, according to one of the position taken by the doctrine, scope of application
of these provisions is not based on territoriality. Approach favorable to the protective lois de police is characteristic for French jurisprudence
and judicature, while German scholars tend to restrict the notion of overriding
mandatory rules to the lois de police “de direction”. Analysis of the French Cour de Cassation
judgments provide practical examples of application of this doctrine and allow to
evaluate the concept of the mandatory rules based on the protective principle in relation
to insurance contract. According to this approach the rules crafted in order to protect the
policyholder or the insured can be perceived as the overriding mandatory rules of private
international law as long as they seek to preserve the essence of an insurance contract,
its essential functions or basic principles of insurance law. Notwithstanding the general
tendency to protect the weaker parties, the notion of overriding mandatory provision
should be interpreted strictly. Their intervention is desirable only if from the perspective
of lex fori the application of lex contractus would undermine the concept of insurance as
an effective risk transfer mechanism. |