The Insurance Disputes Law Review: Editor's Preface
This is now the third edition of The Insurance Disputes Law Review. I am delighted to be the editor of this excellent and succinct overview of recent developments in insurance disputes across 16 important insurance jurisdictions.
The first two editions were very well received. They demonstrated both the need and the very active interest, evident across the globe, in the legal frameworks for insurance and, in particular, in the insight that the developing disputes arena provides into this fascinating area.
Insurance is a vital part of the world's economy and critical to risk management in both the commercial and the private worlds. The law that has developed to govern the rights and obligations of those using this essential product can often be complex and challenging, with the legal system of each jurisdiction seeking to strike the right balance between the interests of insurer and insured and also the regulator who seeks to police the market. Perhaps more than any other area of law, insurance law can represent a fusion of traditional concepts (that are almost unique to this area of law) together with constant entrepreneurial development, as insurers strive to create new products to adapt to our changing world. This makes for a fast-developing area, with many traps for the unwary. Further, as this indispensable book shows, even where the concepts are similar in most jurisdictions, they can be implemented and interpreted with very important differences in different jurisdictions.
To be as user-friendly as possible, each chapter follows the same format – first providing an overview of the key framework for dealing with disputes – and then giving an update of recent developments in disputes.
As editor, I have been impressed by the erudition of each author and the enthusiasm shown for this fascinating area. It has also been particularly interesting to note the trends that are developing in each jurisdiction. An evolving theme in almost every jurisdiction is the increase in protections for policyholders. Much of the special nature of insurance law has developed from an imbalance in knowledge between the policyholder (who had historically been blessed with much greater knowledge of the risk to be insured) and the insurer (who knew less and therefore had to rely on the duties of disclosure of the policyholder). With the increasing use of artificial intelligence to assess data and more detailed scope for analysis across risk portfolios, the balance of knowledge has shifted; it will often now be the insurer who is better placed to assess the risk. This shift has manifested itself in tighter rules requiring insurers to be specific in the questions to be answered by policyholders when they place insurance, and in remedies more targeted at the insurer if full information is not provided. Coupled with these trends, however, is the increasing desire by some jurisdictions to set limits on the questions that can be asked so that, for example in relation to healthcare insurance, policyholders are not denied insurance for historical matters. In the light of the ongoing scourge of covid-19, and its latent effects on those who contracted it (which have yet to be fully understood), this issue continues to be at the forefront of debate.
We can expect that this tussle between the commercial imperative for insurers to price risk realistically and the need to balance consumer protection, government policy and privacy will increasingly be at the heart of insurance disputes.
The effect of covid-19 on economies, and particularly on business interruption insurance, has been a significant theme in the past months. The consequences for credit insurance will no doubt follow through as well. In my home jurisdiction of England and Wales, the courts have faced this challenge to seek to provide urgent guidance on whether such policies respond to a pandemic. The courts in other jurisdictions are also seeking to provide guidance.
It is also fascinating to see how global concerns around climate change and cyber risk are working their way through the legal systems, with jurisdictions, particularly the United States, leading the way in assessing how existing insurance products might respond to these risks.
No matter how carefully formulated, no legal system functions without effective mechanisms to hear and resolve disputes. Each chapter, therefore, also usefully considers the mechanisms for dispute resolution in each jurisdiction. Courts appear to remain the principal mechanism, but arbitration and less formal mechanisms (such as the Financial Ombudsman in the United Kingdom) can be a significant force for efficiency and change when functioning properly. The increasing development of class action mechanisms, particularly among consumer bodies (e.g., in France and Germany) is likely to be an important factor.
I would like to express my gratitude to all the contributing practitioners represented in The Insurance Disputes Law Review. Their biographies are to be found in the first appendix and highlight the wealth of experience and learning that the contributors bring to this volume. I must also thank Russell Butland, who is a senior associate with my firm and a highly talented lawyer (and now a judge). He has done much of the hard work in this project, together with Shahab Uddin and Charlotte Page, who have helped enormously in the research.
Finally, I would also like to thank the whole team at Law Business Research, who have excelled at bringing the project to fruition and in adding a professional look and more coherent finish to the contributions.
Allen & Overy LLP