Policyholder Litigation Challenging the Claims-Handling Conduct of Resolute Management

Over the past decade, Berkshire Hathaway has engaged in numerous “retroactive reinsurance” transactions whereby it takes on another insurer's long-tail environmental and asbestos coverage obligations in exchange for payment of a large sum of cash by the insurer. The cash that Berkshire receives from the insurer typically is the amount of cash that the insurer had reserved to pay policyholder claims on these coverage obligations. Warren Buffet has referred to these large sums received from an insurer as “float,” characterized as “money that doesn't belong to us but that we get to invest for Berkshire's benefit.” The lure of holding on to float for investment purposes has led to aggressive efforts by Berkshire's claims-handling unit, Resolute Management, to reduce and delay claims payments to policyholders. In response, a number of policyholders have initiated lawsuits and other proceedings against Berkshire entities and their related insurers.     

德国2008年《保险合同法》变革透视

2008年1月1日，德国《保险合同法》完成了其生效近百年后的首次重大修订并开始实施。新法在强化保险人义务、完善投保人权利，衡平保险市场供需双方间利益关系等方面作出了诸多重大变革。变革内容主要包括：保险人建议与说明义务的强化、投保人告知义务范围及其责任机制的完善、被保险人权利类型的扩张、保险合同解除权制度的健全以及保险合同法本身的现代化等。相关变革对于中国保险法的进一步完善具有重要借鉴价义。     

Insurers, Claims and the Boundaries of Good Faith

This article examines the refusal of the English courts to award damages for consequential losses following unreasonable delay on the part of insurers in settling a claim. This has the potential to give rise to dire consequences for insureds. These difficulties have been addressed in North American jurisdictions where the concept of good faith has been developed and applied as a means of both compensating insureds and regulating the conduct of insurers. However, a hallmark of English law is that it fails to draw a bright line between the law of contract and the law of contracts. As a result, the policy issues that should inform insurance contracts are excluded by virtue of the notion, imported from the law of contract, that the contractual relationship is a matter of private law and is not, therefore, a means for public regulation of insurers.     

验资机构对验资委托人的民事责任及其认定

验资机构和验资委托人之间的委托合同以委托人与验资机构之间的相互信任为前提,属于双务、有偿合同、不要式和诺成的特别委托合同。验资机构对验资委托人的民事责任存在契约责任与侵权责任竞合的情形。损害赔偿是验资机构对验资委托人承担民事责任的主要方式。由于委托人或第三人的原因而导致验资机构出具的验资报告与实际状况不符,委托人或第三人应当承担相应的责任。对于委托验资合同的免责条款的效力,应当从我国现行合同立法的规定和合同权利义务以及风险分配的合理性两个方面出发加以认定。     

Key Concepts in Property Insurance for Water Loss

Modern insurance litigation began in the mid-1970s, as policyholders and insurers squared off over coverage for asbestos liabilities. With the passage of Superfund and other environmental laws, policyholders assailed their insurers with claims of coverage for hundreds of billions of dollars of environmental liability. These liabilities concentrated attention on liability policies for many years.

More recently, attention has shifted to policies. America's two greatest tragedies of the new millennium, the World Trade Center and Hurricane Katrina, resulted in a multitude of claims under property policies. Climate change will undoubtedly increase the prevalence of such claims. This article examines coverage under property policies for water-related claims.     

Good Faith and the Ubiquity of the ‘Relational’ Contract

The judgment of Leggatt J in Yam Seng Pte Ltd v International Trade Corporation Ltd shows the common belief that the English law of contract does not have a doctrine of good faith to be mistaken. That law does not have a general principle of good faith, but its doctrine of good faith, articulated through numerous specific duties, is more suitable for the interpretation of contracts according to the intentions of the parties than a general principle which invites the imposition of exogenous standards. That Yam Seng involved a relational contract does not mean that paternalistic exogenous standards should be imposed. It means that the good faith obligations essential even to a commercial contract of this sort must be implied in order to give efficacy to the fundamentally co‐operative contractual relationship.     

Failed Governance: A Comment on Baker and Griffith's Ensuring Corporate Misconduct

This essay evaluates Baker and Griffith's book, Ensuring Corporate Misconduct, as a contribution to the social science literatures on regulation and governance, risk, and insurance. Previous social science work on insurance often took an “insurance on the ground” perspective comparing how insurance actually works with the theory of insurance and scrutinizing the actions of insurers as well as the actions of their policyholders. In line with this perspective, Baker and Griffith find that directors and officers (D&O) insurers do not actually charge premiums that vary with risk or monitor the actions of the officers and directors covered by the insurance. Because insurers and governments share governance tasks (a point Baker makes elsewhere), insurers' failures in fact amount to “failed governance” of the corporate world.     

An Examination of the NAIC White Paper Entitled “The Potential Impact of Climate Change on Insurance Regulation”

The battle between insurers and policyholders over coverage for climate change liability has already begun. Commentators have paid less attention to the positive role that insurers can play in coping with climate risk, or the negative impact should climate change liability create massive insurance insolvencies. The NAIC has now addressed these issues in its first White Paper on climate change. Everyone in the insurance industry must pay attention to the risks that the NAIC identifies, and the measures that it recommends.     

Good faith in international transactions

Conclusion Historically, the conception of good faith has been shaped by a variety of forces — political, mercantile and religious among them. Similarly, the CISG also treats the duty of good faith in a holistic manner; rather that attempt to explicitly define the good faith obligation in isolated provisions, the drafters of the CISG marked good faith as an integral and pervasive requirement. The drafters rightly understood that unfair dealing is best recognized in specific factual scenarios; judges and arbitrators will know bad faith when they see it. Thus, the drafters designed a systematic approach to international sales transactions with the assumption that the basic obligations of good faith and fair dealing are understood by the parties. In so doing, they have provided a source of confidence to traders who, due to the nature of the modern international marketplace, must forge their agreements fax-to-fax rather than face-to-face.Law Clerk, Allan Kanner & Associates, New Orleans, Louisiana. B.A., 1989, Georgetown University; J.D. candidate, 1994, Tulane Law School. For their many valuable suggestions, grateful acknowledgement is made to Chris Anderson, Carla Bachechi and Joachim Zekoll.     

Contract Negotiations and the Common Law: A Move to Good Faith in Commercial Contracting?

Classically a duty to negotiate commercial contracts in good faith has been seen as part of the civil, not the common, law world. Common law commercial lawyers have long resisted the lure of “good faith” as a contractual concept, despite engagement with civil law principles in harmonisation projects, by virtue of membership of the European Union and their use in international conventions such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). This paper will examine whether this situation is changing, focusing on two common law jurisdictions—England and Wales and Canada. In England and Wales and the common law of Canada, case-law in the last 10 years has indicated a movement towards acceptance of express and implied duties of good faith in relation to contractual performance, see e.g. Yam Seng Pte Limited v International Trade Corporation Limited [2013] EWHC 111 (QB) and, most recently, Essex CC v UBB Waste (Essex) Ltd (No. 2) [2020] EWHC 1581 (TCC) in England and Wales; Bhasin v Hrynew 2014 SCC 71 and Callow v Zollinger 2020 SCC 45 in Canada. This paper will examine the extent to which these cases may open the way more generally for a duty to negotiate commercial contracts in good faith. It will examine the reception of these cases and whether they indicate (i) greater acceptance of “good faith” as part of contract law thinking and (ii) a possible extension of good faith into the pre-contractual period.

     

论国家科技计划项目合同的私法属性及制度构建

国家科技计划项目合同是国家科技管理部门与科研机构或科研人员之间,为实现国家科技计划、完成特定科研项目,确立双方权利义务关系而订立的合同。它是一种特殊的科研合同,属于私法契约范畴。目前我国国家科技计划项目合同制度存在着计划项目任务书与合同相混淆、合同性质不清、合同主体不清晰、权利义务不对等、具体合同条款内容设计不科学、责任性质不明确、纠纷救济机制和途径不清晰等缺陷和问题。在明确该合同为民事合同的前提下,有必要对其进行相应的制度重构。     

The Insurance Act 2015: Rebalancing the Interests of Insurer and Assured

The Insurance Act 2015 is the first piece of legislation since the eighteenth century to seek to lay down new principles governing the formation and operation of insurance contracts. Exactly 250 years after Lord Mansfield articulated the routinely‐cited principle of utmost good faith in insurance law in Carter v Boehm (1766) 2 Burr 1905, that principle has been recast, with important implications for both the pre‐ and post‐contractual duties of the parties. The Insurance Act has also imposed important restrictions on the enforcement of policy terms by insurers, and clarifies the law affecting fraudulent claims. The Marine Insurance Act 1906, a codifying measure, looks increasingly outmoded.     

The Allocation of Environmental Investigation Costs between the Defense and Indemnity Obligations under General Liability Policies

For policyholders responding to administrative demands of federal or state environmental agencies, the allocation of environmental consultant costs between a carrier's defense and indemnity obligations is a frequent source of disagreement. Likely due to the fact-sensitive nature of such disagreements, existing case law lacks consistency in the analysis of such issues. This article analyzes different legal standards adopted by courts to analyze this issue. Although each court recognizes the fact-intensive nature of the inquiry, some courts are quite detailed in their analysis while others simply seek to achieve a sense of “rough justice.” As a result, attorneys involved in such disputes must have both an understanding of the specific legal standards employed by the courts as well as an understanding of the specific facts that may ultimately tip the scales.     

欧盟非合同义务法律适用统一化——以《罗马条例Ⅱ》为中心

《罗马条例Ⅱ》的诞生,标志着欧盟国际私法统一化的最新发展——非合同义务领域法律适用的统一,从而使非合同义务的法律适用增加了一种“超国家”法律渊源。而且,统一的内容涉及侵权或不法行为、不当得利、无因管理等非合同之债的主要方面,统一的法律选择力求在法律适用的确定性与灵活性、管辖权选择与内容定向法律选择、社会公共利益与个人利益等方面达到平衡。欧盟非合同义务法律适用的统一化给中国国际私法立法以启示。     

从侵权角度看保险人的恶意拒赔——以美国保险法中的恶意侵权为例

在美国,保险人没有合理的基础却恶意地拒赔或拖赔被保险人的索赔时,可以适用恶意侵权责任对其进行规制。该责任是以合同中当事人应善意而公平交易的默示约定为基础的,它于合同之外而构成独立的侵权责任。恶意侵权责任最早见诸于第三方保险之中,其后扩展到第一方保险,表现为保险人将自己的利益凌驾于被保险人之上而拒绝赔付保险索赔或者拒绝与第三方原告进行和解,因而造成被保险人的损失。在责任范围上,恶意侵权责任包括保险金、律师费、精神损害赔偿和惩罚性赔偿等。尽管还没有得到完全一致的认可,但是保险人的恶意侵权责任在美国已经得到了长足的发展,对于我国实践也有借鉴意义。     

中美贸易摩擦“政治失信行为”国家责任研究

中美贸易摩擦中美国出尔反尔的"政治失信行为",背离了国际法诚实信用基石原则,损害国际经济秩序价值,因而具备国家责任承担的必要性。美国"政治失信行为"的国际不法行为认定面临国际义务来源复杂、违约与违法双重认定标准以及国际不法行为本质认定的边界障碍,在国家责任承担上面临国家责任启动桎梏于WTO框架机制、责任承担方式的内在契合不足、救济途径程序障碍等难题,构建中美贸易摩擦"政治失信行为"国家责任路径,首先,以"不靠谱行为"清单模式解决义务来源不兼容问题,现有国家责任方式倒推"政治失信行为"国际不法行为认定缺陷,诚实信用原则耦合国际不法行为认定本质冲突困境;其次,建构"贸易命运共同体"机制解决责任启动难题,以"人类命运共同体"路径契合责任承担方式,畅通国际法院"政治失信行为"受理维权机制。     

Forgive Them Their Trespasses (But Don't Expect Coverage for Them)

“Personal injury” coverage has long been a source of contentious and creative litigation between insurers and policyholders, particularly during the past decade when insureds sought to evade pollution claims by recharacterizing them as trespass or nuisance claims for “invasion of the right of private occupancy.” This article discusses the present status of the “personal injury” pollution coverage debate and its implications for the exploding problem of “technoprivacy” claims arising out of junk e-mail, spam, and computer “cookies.”     

关于对冲基金的若干法律问题研究

对冲基金的法律关系是指在对冲基金的活动过程中各当事人之间依据对冲基金法律规范所形成的权利与义务关系。对冲基金的法律形式，即对冲基金存在的法律形态。在全球范围内，目前对冲基金的法律形式主要有契约型、公司型和有限舍伙型三种，且各个对冲基金的具体投资风格和投资策略也各异，然而，所有对冲基金的法律运作程序和运作模式基本相同。就其性质而言,对冲基金属于信托，但又是信托发展的新层次。     

The Many Flavors of Environmental Insurance

The market for environmental impairment liability (EIL) and pollution legal liability (PLL) insurance is approaching its thirtieth anniversary. During those years, the market has developed from a one-size-fits-all approach that consisted of a couple insurers to one that can specifically tailor coverages to the needs of a specific transaction or risk. While increases in capacity and flexibility have created diverse choices for policyholders, failure to understand the nuances presented by the current policy forms presents both challenges and opportunities. This article discusses how the EIL/PLL market has developed and highlights some of the more substantive differences in policy forms that are currently available.     

释解有线电视网络经营者的缔约责任与合同义务——以一起涉费纠纷诉讼案为例

讨论在强制缔约条款缺位的情况下,如何确认用户与有线电视网络经营者的合同关系,从而要求后者履行相应的合同义务。