Applied Contract Theory and the Legal Regulation of Marine Insurance Contracts: The Case of Risk Control Terms and Contracting Out under the Insurance Act, 2015

Abstract

IInsurance contract law is in a state of flux, having undergone a period of substantial reform. The English and Scottish Law Commissions commenced the period of reform in 2006 and this resulted in two core statutes: the Consumer Insurance (Disclosure and Representations) Act 2012 and the Insurance Act 2015 (‘the 2015 Act’). The former is applicable to consumer insurance, the latter to consumer and non-consumer insurance. The focus of this thesis is on commercial marine insurance contract law and therefore the 2015 Act. Both statutes sought to amend various aspects of the law of insurance, but this thesis is limited to the reforms pertaining to warranties, risk control terms, and contracting out in the 2015 Act. Contemporary scholarship has focused primarily on the substantive changes to the law. This thesis goes further by grounding the substantive law analysis in the context of applied contract theory, specifically the (neo) formalist-contextualist debate. In doing so, it aims to analyse the type of regulation that governs marine insurance and the suitability of such regulation for these types of markets. The (neo) formalist-contextualist debate provides an important framework to analyse the 2015 Act: to determine what type of statutory regulation the 2015 Act is; and to analyse how judges should approach the new 2015 Act. This thesis shows that the 2015 Act reflects ‘contextualist’ tendencies and is a new type of statutory regulation for commercial marine insurance contracts. It further claims that a more suitable framework for the regulation of commercial (marine) insurance contracts would have been a contract law minimalist approach to the design of statutory regulation. It explains why and how judges should adopt a minimalist approach to the interpretation and application of the 2015 Act to contracts between sophisticated parties. This thesis provides an important new normative perspective for the 2015 Act, specifically in relation to commercial marine insurance contracts. It is an original contribution to knowledge both through the research questions posed and answered and, the research methodology employed to do so. Insurance contract law under the 2015 Act is in its early stages of development and this thesis offers a timely contribution to understanding the operation of the Act and its implications for sophisticated markets, such as marine insurance.

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ORCID for James Davey: orcid.org/0000-0002-0748-1404

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