European Centre of Tort and Insurance Law

Landesgerichtsstraße 11,

A-1080 Vienna
Austria

Telephone: ++43 1 40127-1688
Fax: ++43 1 40127-1685

e-mails: ectil@univie.ac.at

The Role of Tort Law and Insurance in the 21st century

Contents

GOALS OF THE CENTRE

INFORMATION

Goals of the Centre

A.General observations

Liability law is rapidly changing in quite a number of countries. This is due to various factors, which are, to a large extent, interrelated:

 Case law and factual developments will not stop at national borders. To cite just two examples it is hardly conceivable that there will be no DES cases outside the Netherlands and the USA, or that repetitive strain injuries will fail to spread from the UK to the continent.

B. Academic considerations

Tort broke adrift. Perhaps not on its own. Still, in a number of jurisdictions case law and legislation are still rather conservative and lacking innovation. But even in these countries one seriously has to reckon with the influences of neighbouring countries. Moreover, even if the law is to remain as it is, the factual circumstances call for reconsideration: does it fairly fit in our time? Is our tort law still affordable, given that the number and level of claims is rapidly growing, while insurability is becoming difficult?

 The law of torts is also changing in another respect. There is a trend towards harmonising the laws of Europe. Although this is particularly true for contract law, it is also true for specific areas of tort law, for example, environmental and product liability. In this context, a more or less European law on damages may well develop, a desirable development in our eyes.

 In the future a more comprehensive harmonisation of tort law may be realised by the European Union or the Council of Europe. Such a development, if initiated by either of these European institutions is likely to be doomed fragmentary (sticking to product liability or other specific areas).

 It seems clearly beneficial to the further development of tort law to accelerate this process. Doing so would ensure that the requirements of our time be taken into account. Besides, the existence of a unified Code would also avoid nasty questions of conflicts of laws, especially with regard to torts of a cross-border nature.

 In both respects we need thorough and extensive knowledge of the laws within the European countries. Since many developments which influence the European laws take place in the United States, one should equally focus on "American" law. All this work could hardly be done by one scholar, not even a few. Numerous scholars working in their respective countries are required in order to gain full insight into the particular field of study.

 Of course, the Centre´s goal is not only - even not primarily - to gather information concerning the various legal systems and the ways they are developing. The Centre concentrates on fundamental questions, and focuses on topics deserving attention in view of their dogmatic and practical impact. Equal consideration is given to an examination of the solutions provided by different legal systems and whether these lead to fair outcomes, taking all relevant circumstances into account (briefly: the interests of victims, tortfeasors and society at large). Comparative studies, looking not only at solutions for future cases, but asking how they are reached, will often provide answers as to how to cope with today's challenges.

C. The importance of liability insurance

It follows that insurance inevitably plays an important role. Though not decisive in the development of tort law, one can hardly escape from the impression that courts and legislators are increasingly willing to address questions such as:

 In this context, one should bear in mind that the affordability of tort law also requires safe and sound insurers.

It has to be stressed that we aim at focusing on insurance matters only to the extent that these have an impact on liability law, or vice versa. Traditional areas of insurance law (like fire, accident, life, marine and transport insurance), do not fall within the remit of the Centre due to the little relevance they have for tort lawyers.

 It should equally be stressed that an examination of insurance matters in this connection is still rather exceptional, although some scholars already pay attention to this topic. However, this is not yet done in a more systematic way, seen from the angle of a variety of legal systems. Even less statistics are taken into account, simply because these are hardly available. For instance: compensation for pure economic loss may be adequate as long as the number and level of claims are relatively small. But should a similar rule apply if the requirement to pay compensation would imply that the continuation of useful economic activities like those of auditing, banking and legal advice is hindered or endangered?

D. The activities of the Centre

The Centre´s goals are already briefly mentioned under A-C above. In short: