A Maltese substantive insurance law : should we go our way?

Abstract

Put simply, substantive insurance law should be about the art of balancing interests, creating a point of equilibrium between the interests of the insurer and those of the insured, between the interests of the insured and those of the other policyholders, between the interests of the insurer and those of the reinsurer. Being a British colony for many years, Australia adopted the common law principles of insurance, like Malta did. The Australians, however, were ready to change these principles and set up a substantive insurance law of their own. This may prove to be a very useful model for Malta. In the introduction, I shall explain the sort of issues I am going to review. One should clearly distinguish substantive from regulatory issues. Whereas in Malta we have a fully-fletched regulatory insurance law embodied mainly in the Insurance Business Act and the Insurance Brokers and Other Intermediaries Act, substantive insurance is very scarce andis scattered throughout the whole compendium of Maltese legislation.The first chapter contains a study of the law outside the European continent. Two particular countries, Australia and South Africa were chosen. These two countries have a common source of insurance law: English Common law. Both countries have however departed from the common law principles as they were considered inadequate to today's insurance requirements. The second chapter contains a study about one of the oldest insurance laws on the continent, the Italian system. The Italian insurance contract arose out of marine insurance way back in the fourteenth century, and the concept of insurance really and truly emerged from this country. The provisions related to insurance law in Italy can be found under a special heading dealing with the insurance contract in the Italian Civil Code (1942). In the third chapter I shall take a glance at four particular European countries: France, Greece, Latvia and Finland. These are four countries which are members of a common commercial and political bloc, the European Union, even though they have become members at different points in time. Notwithstanding this, their insurance laws are in no way identical to each other. In this study, it will be seen how these laws deal with and define the insurance contract and I shall also focus on the form which these countries have chosen in order to embody their insurance contract law. In the fourth chapter, I shall take a look at the way in which the Maltese courts have tackled substantive insurance law issues. What were the sources of inspiration of Maltese judgments? Did the Maltese courts manage to fill the lacuna of not having a proper substantive insurance law? Or did the Courts simply patch up several areas of insurancelaw by quoting without much thought from old English judgments? Should Maltese Courts look at jurisprudence other than that handed down by English courts? In the fifth and last chapter I shall briefly describe the elements of substantive insurance law presently in force in Malta. I shall also look at particular provisions of the Code De Rohan of 1784 which may still be relevant nowadays, and particularly for the purpose of this study. This final chapter will also contain a set of suggestions as to what Maltese law should envisage. These suggestions have been inspired by several sources, including foreign and local laws and jurisprudence, and the responses to a questionnaire which I submitted to various stakeholders in the insurance industry. These proposals should serve as a basis for the introduction of a Maltese substantive insurance law in future.