第5章管辖权与适用法.docVIP

第五章 适用法与管辖权 1 适用法概述 由于历史的传承与发展，英国的保险业在世界都处于领先地位。伦敦保险业界拟定的保险标准条文是在世界范围内都被跟从与借用，另与之相配合的英国保险法的优越性也是显著。根据联合国贸易发展委员会（UNCTAD）于1975年的报告，世界范围内大约有三分之二是用英国的保单与相关条款，这样一来，用英国的保险法来配合解释相应的保险合约也更准确，能够找出拟定合约条文的订约意图。英国法院一贯以来也是这样的看法，特别海上保险（船舶与海上货物运输）两百多年来以劳合社标准S.G.保单作为保险合约。The “Al Wahab” (1983) 2 Lloyd’s Rep. 365先例就显示了这一点，贵族院是一致支持上诉庭的多数意见，就是英国法适用，因为有关的保险合约是劳合社S.G.保单（只有英国法律才对S.G保单有全面的解释）。其中Bingham大法官的一审提出这一个因素的重要性，如下： “The use of a English standard form may be powerful, even a conclusive, indication that the parties intended to contract with reference to English law. See, for example, The Industries (1894) P. 58. But there is, in my judgment, a factor which cannot be ignored in assessing whether and, if so, how strongly, that inference should be drawn. The evidence in this case plainly establishes that this form of marine policy, produced and developed in the London insurance market, has achieved a world-wide currency. Partly this is due to the long history, the great experience, the professional expertise and the high standing of that market, combined with the traditional dominance of London as a commercial centre. Partly it is due to the process of imperial fertilisation which has led to reproduction of the Marine Insurance Act, 1906, in far corners of the globe. The result is that in Western Europe, Australia and New Zealand, South Africa, Singapore, North Yemen, Israel, various parts of black Africa, Indonesia, China, and elsewhere, the standard form of English marine policy is in regular use. In Kuwait (该先例涉及科威特) itself the form has been used since insurance companies were first set up 20 years ago. Similar use is made in other parts of the Gulf and the Middle East. Sometimes there is an express choice of jurisdiction. Often the reference to Lombard Street, the Royal Exchange, or elsewhere in London, is deleted. But frequently there is no express choice of jurisdiction and subject to that deletion the policy wording substantially remains as in the Schedule to the Act, ofte