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上）
C4 Follow clauses（跟随条款）
In ICA v. Scor, there was an added complication in that the reinsurance agreement also contained a claim cooperation clause. This contradicted the follow the settlements clause by requiring the reinsurer’s agreement before settling the claim. The court concluded that this requirement took precedence over the follow the settlements clause. On the facts, this made no difference, since the court concluded that the loss had been suffered and was covered by the clause. Nevertheless, one can see that the claims cooperation clause can operate to emasculate a follow the settlements clause.
在 ICA 诉 Scor 案中，还有一个复杂的问题，即再保险协议中还包含一项索赔合作条款。这与遵循理赔条款相矛盾，因为它要求在理赔前征得再保险人的同意。法院的结论是，这一要求优先于遵循理赔条款。就事实而言，这并没有什么区别，因为法院的结论是，损失已经发生，并且属于该条款的范围。尽管如此，我们可以看到，索赔合作条款可以使遵循理赔条款失去效力。
The courts have confirmed that, in most cases, once a reinsured has demonstrated that it has settled a claim in the ordinary course of its business and its claim falls within the reinsurance contract, it is for the reinsurer to prove that the original settlement was not in fact bona fide or businesslike. In other words, there will be a presumption in favour of the reinsured that the original claim is bona fide and businesslike.
法院已确认，在大多数情况下，一旦分保人证明其已在正常业务过程中理赔，且其理赔属于再保险合同的范围，则再保险人应证明最初的理赔事实上并非善意或商业性的。换句话说，默认情况是一个有利于分保人的推定，即原索赔是善意的和商业性的。
Subsequently, the courts have considered the meaning of ‘liable or not liable’ and ‘without question’ when added to loss settlements clauses. The first phrase was held to make no difference to the relationship between the parties (Charman v. GRE (1992)), and did not remove the obligation to settle inwards business in a businesslike fashion. Similarly, in relation to the latter phrase, it was held only to emphasise that reinsurers were bound by the settlement, even if it was subsequently proved that there was in fact no original liability, and did not mean that the only limitation on the reinsurers obligation to follow the reinsured’s settlement was that the reinsured had not acted in bad faith (Assicurazioni Generali v. CGU International & Ors (2003)). Clear words must be used if the parties intend to exclude this implied obligation.
随后，法院考虑了在损失赔偿条款中加入 “有责任或无责任 ”和 “毫无疑问 ”的含义。第一个短语被认为对双方之间的关系没有任何影响（Charman 诉 GRE 案（1992 年）），也没有取消以商业方式结算内向业务的义务。同样，关于后一个短语，该短语被认为只是为了强调再保险人受理赔的约束，即使后来证明事实上没有原始责任，并不意味着对再保险人遵循分保人理赔的义务的唯一限制是分保人没有恶意行事（Assicurazioni Generali 诉 CGU International & Ors（2003 年））。如果当事人有意排除这一默示义务，就必须使用明确的措辞。
Loss settlements binding clause（损失赔偿约束条款）
An alternative loss settlements clause often found in excess of loss treaties and which was considered by the House of Lords in Hill v. M&G Re (1996), is as follows: All settlements by the reinsured shall be binding upon reinsurers provided that such settlements are within the terms and conditions of the original policy and within the terms and conditions of this policy.
上议院在 Hill 诉 M&G Re（1996 年）一案中审议了超额损失条约中经常出现的另一种损失理赔条款，其内容如下： 只要分保人的所有理赔符合原保单的条款和条件以及本保单的条款和条件，则对分保人具有约束力。
Kuwait Airways Corporation (KAC) and British Airways (BA) lost a number of aircraft that were on the ground at Kuwait Airport when Iraq invaded Kuwait on 2 August 1990. The aircraft belonging to KAC were flown out of Kuwait at various times on dates in August and September 1990. Some were later recovered and returned but seven were destroyed during the course of the allied air offensive during 15 January and 28 February 1991. The BA plane remained in Kuwait but was destroyed in an explosion on 22 February 1991.
科威特航空公司(KAC)和英国航空公司(BA)在 1990 年 8 月 2 日伊拉克入侵科威特时损失了在科威特机场降落的一些飞机。科威特航空公司的飞机在 1990 年 8 月和 9 月的不同时间飞离科威特。有些飞机后来被找回并归还，但有 7 架飞机在 1991 年 1 月 15 日至 2 月 28 日盟军的空中攻势中被摧毁。BA 飞机留在科威特，但在 1991 年 2 月 22 日的爆炸中被毁。
The reinsured, a Lloyd’s syndicate underwriting as Hill & Others, had settled inwards claims on the basis that such claims represented one loss that occurred on the date of the Iraqi invasion. The reinsurer, M&G Re resisted the claim on many grounds, including that the losses had occurred in 1991 when the reinsurance contracts on a losses occurring during 1990 basis had expired. M&G Re also argued that not all of the aircraft in respect of which an indemnity was claimed had, in fact, been lost; some were subsequently recovered, and that, if lost, there was no single loss encompassing all aircraft. In this context, the issue before the court was whether the reinsurer could question the loss settlement of the reinsured. No issues were raised in relation to the implied obligation.
分保人是一家以 Hill & Others 名义承保的劳埃德辛迪加，该辛迪加已对内向索赔进行了理赔，理赔的依据是这些索赔是伊拉克入侵之日发生的一次损失。再保险人 M&G Re 以许多理由抵制了这一索赔，其中包括损失发生在 1991 年，而以 1990 年期间发生的损失为基础的再保险合同已经到期。M&G Re 还争辩说，事实上并不是所有要求赔偿的飞机都损失了；有些飞机后来又找回来了，而且，如果损失了，也不存在包括所有飞机在内的单一损失。在这种情况下，摆在法院面前的问题是再保险人是否可以质疑再保险人的损失理赔。在默示义务方面没有提出任何问题。
The House of Lords distinguished the case from ICA v. SCOR on the grounds that the relevant clause expressly required claims under the outward reinsurances to be within the terms and conditions of both the original policies and the reinsurances. The reinsurer was, accordingly, entitled to query whether it should be bound by the settlement of a loss that occurred during a year in which it did not provide reinsurance to the reinsured, and that was made up of distinct losses, each of which fell below the retention.
上议院将此案与 ICA 诉 SCOR 案区别开来，理由是相关条款明确要求分出再保险下的索赔必须符合原始保单和再保险的条款和条件。因此，再保险人有权质疑，在它没有向分保人提供再保险的年份里发生的损失，由不同的损失组成，每项损失都低于自留额，它是否应受损失理赔的约束。
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