Reinsurance - M97（Dip级30学分，选修）-《再保险》
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（前述章节【Dip系列课程】M97-第八章-再保险相关的法律问题C4中）
C4 Follow clauses（跟随条款）
A similar wording was considered in Equitas v. R&Q (2009). This case is particularly interesting because the court approved the use of actuarial models to satisfy the first proviso – namely that, on the balance of probabilities, the losses were within the terms and conditions of the original, or in this case, the underlying, policies.
在 Equitas 诉 R&Q（2009 年）案中也考虑了类似的措辞。该案特别有趣，因为法院批准使用精算模型来满足第一项附文（限制条款）的要求，即在权衡各种可能性后，损失在原始保单（或在本案中为相关保单）的条款和条件范围之内。
The London Market had wrongly aggregated certain losses and included irrecoverable losses relating to, e.g. the Iraqi invasion of Kuwait. The issue was whether this precluded Equitas from recovering losses that would otherwise be recoverable from particular retrocessional excess of loss reinsurance contracts, the losses being tainted by its inability to replicate the LMX spiral completely (and extract the irrecoverable losses).
伦敦市场错误地汇总了某些损失，并包括了与伊拉克入侵科威特等有关的无法收回的损失。问题是，这是否使 Equitas 无法收回本来可以从特定的追溯性超额损失再保险合同中收回的损失，因为这些损失因其无法完全复制 LMX 螺旋（并提取无法收回的损失）而受到影响。
It was held that while it was plainly necessary to proceed with caution, the models provided an acceptable and soundly based route to establishing the properly recoverable minimum losses sustained by the syndicates. It was not necessary for Equitas to prove that the sums claimed were properly due, on a contract by contract basis.
法院认为，虽然显然有必要谨慎行事，但这些模式为确定辛迪加所遭受的可适当追回的最低损失提供了一个可接受的、有充分依据的途径。Equitas 没有必要逐份合同证明索赔的金额是适当的。
Following the grounding of the tanker, Exxon Valdez, and subsequent spillage, and clean-up, of crude oil in Prince William Sound, Alaska, a reinsurer (NRG Victory Re) disputed its liability to reimburse reinsureds (including Commercial Union (CU)) for amounts paid to Exxon in respect of Exxon’s liability for clean-up costs. The reinsureds had settled with Exxon during legal proceedings in Texas and, under the reinsurance contracts, it was a condition precedent to the reinsurer’s liability that the reinsured’s underlying settlements were in accordance with the terms and conditions of its original policies. In Commercial Union v. NRG Victory Re (1998), NRG argued that the original policies were governed by English law and under that law the reinsureds were not liable to Exxon, so it was not bound by the settlements. In turn, CU argued that it had demonstrated its legal liability to its insured by taking all reasonable defences in the proceedings and making a sensible settlement on the advice of its local lawyers.
埃克森-瓦尔迪兹号油轮搁浅以及随后在阿拉斯加威廉王子湾发生原油泄漏和清理之后，再保险人（NRG Victory Re）对其向分保人（包括 Commercial Union (CU)）偿付埃克森公司清理费用的责任提出异议。分保人在得克萨斯州的法律诉讼期间与埃克森公司达成了和解，根据再保险合同，再保险人承担赔偿责任的先决条件是，分保人的相关理赔符合其原始保单的条款和条件。在 Commercial Union 诉 NRG Victory Re（1998 年）一案中，NRG 辩称，原始保单受英国法律管辖，根据英国法律，分保人不对 Exxon 负责，因此它不受理赔的约束。而 CU 则认为，它在诉讼中采取了一切合理的抗辩，并根据当地律师的建议达成了合理的理赔，从而证明了它对被保险人的法律责任。
At first instance, it was held that the reinsureds had proved their loss. On appeal, this was overruled on the basis that the first instance judge should have made his own decision as to whether or not it was arguable that the reinsureds were not liable to Exxon under the applicable law, and not relied on the local lawyer’s opinion. The wider point is perhaps that, if a reinsured’s liability to its insured is established by a court of competent jurisdiction, the reinsurer will be liable under a reinsurance contract that is governed by English law.
一审认为，分保人已经证明了他们的损失。在上诉时，这一裁决被驳回，理由是一审法官本应根据适用法律自行决定分保人是否对埃克森公司不承担赔偿责任，而不应依赖当地律师的意见。更广泛的观点或许是，如果有管辖权的法院确定了分保人对其被保险人的责任，那么再保险人将根据受英国法律管辖的再保险合同承担责任。
Further, in AstraZeneca Ins Co v. XL & Ace (2013), a pharmaceutical’s captive sought reimbursement from its reinsurers for settlements and costs incurred in the USA in relation to a prescription drug, Seroquel. Unusually, the Bermuda Form was governed by English law and conferred jurisdiction on the English Commercial Court. Reinsurers declined reimbursement on the basis that the cases were settled in the absence of any legal liability to do so. Accordingly, the main issue before the court was whether it was only necessary for the claimant to demonstrate that it settled an arguable liability rather than an actual liability (that is, in the sense that, on a balance of probabilities, ‘it would have been liable for the claim in question, on the basis of the correct application of the system of law governing the claim to the evidence properly analysed’. Justice Flaux held that the form responded only to an actual liability.
此外，在 AstraZeneca Ins Co 诉 XL & Ace 案（2013 年）中，一家制药公司的自保公司要求其再保险人偿付在美国发生的与处方药 Seroquel 有关的理赔和费用。不同寻常的是，百慕大表格受英国法律管辖，并赋予英国商事法院管辖权。再保险公司拒绝赔偿，理由是这些案件是在没有任何法律责任的情况下解决的。因此，摆在法院面前的主要问题是，索赔人是否只需要证明它解决了一个可论证的责任，而不是一个实际的责任（也就是说，在权衡各种可能性的基础上，“根据对证据的适当分析，正确适用管辖索赔的法律制度，它本应对有关索赔负责”）。Flaux 法官认为，这种形式只对实际责任作出反应。
Other settlements（其他理赔处理）
On occasion, loss settlements clauses make reference to whether ex gratia and/or without prejudice settlements are included or excluded from the obligation to follow settlements.
有时，损失理赔条款会提及是否将通融赔付和/或无损理赔包括或排除在遵循理赔的义务之外。
Noted: Ex gratia settlements are payments made in the absence of legal liability for pure commercial reasons, whereas without prejudice settlements are those made with no admission of the existence of any liability under the terms of the original policy.
请注意： 通融赔付是在没有法律责任的情况下出于纯粹的商业原因而支付的款项，而无损理赔则是在不承认根据原保单条款存在任何责任的情况下支付的款项。
For example, Faraday entered into a settlement agreement with its insured which recited, among other things, that it was ‘by way of compromise, and without prejudice to or waiver of their respective positions … and without the London market insurers admitting liability’. Faraday’s reinsurance contract, however, excluded from its reinsurer’s (Copenhagen Re) ‘follow settlements’ obligations both ex gratia and without prejudice settlements. The Court held that the compromise settlement was plainly a without prejudice settlement and so fell outside the clause in the reinsurance contract (see Faraday v. Copenhagen Re (2006)).
例如，Faraday 公司与其被保险人签订了一份理赔协议，其中除其他规定外，该协议是 “以妥协的方式，在不损害或放弃各自立场的情况下……，伦敦市场保险人不承认责任”。然而，法拉第的再保险合同将其再保险人（哥本哈根再保险公司）的 “遵循理赔 ”义务排除在通融赔付和无损理赔之外。法院认为，妥协理赔明显属于无损理赔，因此不属于再保险合同的条款范围（见 Faraday 诉哥本哈根再保险公司案（2006 年））。
Follow the fortunes clause（遵循命运条款）
A typical example of a follow the fortunes clause is as follows: It is the intention of this Agreement that, in all matters falling within its scope, the reinsurers shall, to the extent of their interest, follow the fortunes of the reinsured in every respect.
遵循命运条款的典型例子如下： 本协议的意图是，在本协议范围内的所有事项上，再保险人应在其利益范围内，在各方面遵循分保人的命运。
Such clauses are common in proportional reinsurances where reinsurers are much less concerned about second guessing their reinsureds, and are complemented by errors and omissions clauses.
这种条款在比例分保中很常见，因为在比例分保中，再保险人对分保人的担忧和猜测要少得多，而且还有错误和遗漏条款作为补充。
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