Category Archives: 1

Juxtaposing BTE and ATE: the Role of the European Insurance Industry in Funding Civil Litigation

Willem H. van Boom*

(2010) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

Abstract

One of the ways in which legal services are financed, and indeed shaped, is through private insurance arrangements. Two contrasting types of legal expenses insurance contracts (LEI) seem to dominate in Europe: before the event (BTE) and after the event (ATE) legal expenses insurance. Notwithstanding institutional differences between different legal systems, BTE and ATE insurance arrangements may be instrumental if government policy is geared towards strengthening a market-oriented system of financing access to justice for individuals and business. At the same time, emphasizing the role of a private industry as a keeper of the gates to justice raises issues of accountability and transparency, not readily reconcilable with demands for competitive markets. Moreover, multiple actors (clients, lawyers, courts, insurers) are involved, causing behavioural dynamics which are not easily predicted or influenced.

Against this background, this article looks into BTE and ATE arrangements by analysing the particularities of BTE and ATE arrangements currently available in some European jurisdictions against the backdrop of their respective markets and legal contexts. This allows for some reflection on the performance of BTE and ATE providers as both financiers and keepers of the gates to justice. Two issues emerge from the analysis that are worthy of some further reflection. Firstly, the long-term sustainability of some ATE products appears problematic. Secondly, policymakers that would like to nudge consumers into voluntarily taking out BTE LEI are facing certain challenges.

JEL classification: G22, K12, K41

Keywords: legal expenses insurance, conditional fee arrangement, after the event insurance

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The Regulation of Electoral Financing

Anthony Gray*

(2009) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

Abstract

Various governments around the world have sought to pass legislation regulating electoral campaigns, in particular their financial aspects. Electoral reform is high on the Australian Government’s agenda. In a Green Paper published in December 2008, the Australian Government canvasses some possible reforms to Australia’s electoral system, most especially in the funding area.1 These proposals to some extent mirror developments elsewhere. In this paper, I consider the specific suggestion that caps or bans should be placed on private funding of political parties. This policy suggestion is considered primarily from a constitutional point of view in terms of its validity. In so considering, comparisons will be made with other jurisdictions in which such reforms have been made, and political science issues pertinent to the discussion will also be considered. Much can be learned from experiences in this regard overseas.

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Unjust Factors or Restitution of Transfers Sine Causa

Duncan Sheehan*

(2008) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

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Codification of Private Law in Scotland: Observations by a Civil Lawyer

Andreas Rahmatian*

(2007) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

Abstract

This article discusses, by reference to Scotland, the problems of codifying a mixed system of private law, presenting an outline of some parts in a draft civil code. A civil code must resolve divergence between Civil Law and Common Law concepts. Such divergence is demonstrated here by reference to the conceptual conflict between the Scots (Civil) law of error and the English (Common) Law of misrepresentation. The article outlines how codified provisions in this area might be drafted. It discusses the German, French, Swiss and Austrian rules (the last being remarkably similar to Scots law), and offers possible Common Law and Civil Law-style codifications of the Scots law of error. As Scots statutes follow the Common Law drafting style, it is argued that they are unsuitable for comprehensive codification. A code in a Civilian style, on the other hand, requires the adoption of Civilian statutory interpretation, but as this is inconsistent with Scots legal culture, the final question raised is whether codification of Scots private law is desirable at all.
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Duress and Undue Influence in English and German Contract Law: a comparative study on vitiating factors in common and civil law

by Armin Hadjiani1

(2002) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

“The Law is not only the basis for all civilised intercourse; it forms part of our life as an important cultural phenomenon. The solutions developed in a particular system may serve as useful models for other systems. The problems are, after all, often identical. Though the ways in which they are solved may be different, the outcome is mostly the same or similar. Arguments derived from comparative law are thus nowadays increasingly accepted in construing and applying one’s own law.”2

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