Some critical legal issues affecting insurance transaction globally

Increasingly, major insurers and reinsurers are operating on a global basis. For example, General Re Corporation and Cologne Re operate in almost 150 countries : see "General Re Corporation 1999 Annual Report". This is also true for the world's major brokers, and the emergence of large broking conglomerates such as Aon and Marsh are good examples of global service providers. Against the background of this increasingly global insurance market with global participants, there are a range of common legal issues in this article but a selection of certain critical matters are canvassed in the secitons below. First there are a range of regulatory issues that must be addressed. Secondly globalisation of the industry does create added incentive for a common legal regime to cover the formation of insurance transactions and the resolution of disputes about claims, coverage and termination. In this contect codifcation of insurance laws is a critical issue. Thirdly, major advances in genetic research and biotechnology over recent years have resulted in a dramatic increase in the availability of genetic testing. These developments have given rise to concerns worldwide about the potential for misuse of genetic information by third parties such as insurers and employers. Fourthly, the essence of an insurance transaction is the transference of risk from one person to anther. It is generally accepted that this transference should occur in informed circumstances and without undue advantage being bestowed upon either party. Finally this article will consider some legal matter in relation to transacting insurance on the internet

Fraudulent insurance claims : recent legal developments

Insurance fraud continues to be a major problem worldwide. This article will canvass recent legal developments in relation to selected issues and matters of particular concern to the insurance industry. This article is confined to fraudulent claims. Fraud may arise at various points in the insurance relationship, including initial fraud on placement and fraudulent breach of contract by the assured. Fraud at the outset by the assured is treated differently from innocent or negligent conduct. "Fraud" in the context of this paper embraces all claims where an insured intednds to deceive an insurer by getting out i money to which the insured knew he had no right. This article will examine fraudulent insurance claims.

Respecting contractual intentions : balancing consumer expectations with the sanctity of contract in the context of standard form insurance contracts

It is the purpose of this article to examine the means curently available to judges to achieve a workable balance between providing appropriate consumer protection to signatories of standard form contractors while still retaining adequate respect for the sanctity of contract, and, based on this analysis, to determine whether a significantly greater scope of contract (re)construction is likely to become the norm in most common law jurisdictions in the coming decades.

A comparative overview of "know-how" protection in Japan and Australia

"Know How" protection varies enormously from country to country and is a complex equation of legal, political, cultural and economic factors. A contrast between Japan and Australia serves to highlight some of these factors. For the purposes of this article, a working definition of "know how" is required. In Australia and other common law systems, no statutory definition of "know how" exists, "confidential information" proving the closest comparative term in Australia ('trade secret law' in the United States).

Disclosure in insurance law : contemporary and historical economic considerations

This article examines the importance of accurate classification and identification of risk with particular reference to the problem of adverse selection. It is argued that, historically, this concern was the paramount consideration influencing standard form contract formation and disclosure laws. The scope of its relevance today however is less apparent in that contemporary insurance contracting is conducted in a vastly different environment from that which prevailed at the time Lloyd's was better known as a coffee house. Accordingly, the second part of this article looks at the contemporary framework of information disclosure and those dynamics within it designed to elicit information weighing on risk forecasting : specifically, (a) direct inquiry and testing requirements; (b) signaling - or incentive based structuring of insurance contractual and (c) bargaining in the shadow of the utmost good faith doctrine. Finally, certain conclusions arising out of contemporary and historical economic considerations underpinning disclosure in insurance law are outlined.

Utmost good faith in insurance : reform overdue?

Considerable attention has been devoted to the duty or doctrine of utmost good faith in the academic literature and in the courts. This attention ranges from an analysis of the precise legal basis for the duty through a consideration of the continuing nature of that duty in the post-contract environment.It is quite clear that all contracts of insurance are subject to this duty of utmost good faith. What is less clear and certain are the incidents attendant upon such a duty and the scope of the obligations that such a duty imposes. This article examines the relative positions that have been reached in England and Australia and concludes with some recommendations for legislative reform to this area of the law.

Regulatory approaches to genetic testing in insurance

Rapid advancements in the field of genetic science have engendered considerable debate, speculation, misinformation and legislative action worldwide. While programs such as the Human Genome Project bring the prospect of seemingly miraculous medical advancements within imminent reach, they also create the potential for significant invasions of traditional areas of privacy and human dignity through laying the potential foundation for new forms of discrimination in insurance, employment and immigration regulation. The insurance industry, which has of course, traditionally been premised on discrimination as part of its underwriting process, is proving to be the frontline of this regulatory battle with extensive legislation, guidelines and debate marking its progress.

Disclosure under the prescribed insurance contracts regime : Section 35 of the Insurance Contracts Act 1984 and consumer protection revisited

Section 35 of the Insurance Contracts Act 1984 requires insurers offering insurance policies in six prescribed areas "to clearly inform" prospective insureds of any departure their policies may constitute from the standard covers established by the Act and its accompanying Regulations. This prescribed insurance contracts regime was designed to remedy comprehension problems generated by the length and complexity of insurance documents and to alleviate misunderstanding over the terms and conditions of individual policies. This article examines the rationale underpinning s 35 and the prescribed insurance contracts regime and looks at the operation of the legislation with particular reference to home contents insurance in Australia. It is argued that the means whereby disclosure of derogation from standard cover may be effected largely negates the thrust of the prescribed insurance contract reform. Recommendations to address these operational deficiencies are made.

The insured's non-disclosure in the formation of insurance contracts : a comparative perspective

The requirements that an insured disclose all facts material to a transaction as well as not misrepresent material facts in the formation of an insurance contract are universal requirements of insurance law. The nature and extent of these obligations varies from one jurisdiction to the next. Disclosure in the insurance context is distinct from the general approach in commercial contracts, and in others between persons dealing at arm's length. It is the purpose of this article therefore to examine, on a comparative basis, the approaches adopted in the Anglo-Commonwealth context of England, Australia New Zealand and Singapore to the resolution of disclose issues in the formation of insurance contracts. Particular attention is focused on the Insurance Contracts Act 1984 (Australia) as this statue effects the most significant overhaul of the common law and the National Consumer Council in the United Kingdom has advocated that similar reforms be adopted.

Disclosure and concealment in consumer insurance contracts

This book provides an in-depth examination of the theoretical,legal, social and economic foundations to disclosure and concealment of information in relation to the formation of consumer insurance contracts. A comparative treatment of this issue is undertaken with particular attention given to the judicial and legislative approaches adopted in the United Kingdom, the United States of America, Australia and New Zealand.

Healthy children, healthy planet : the case for transformative education in schools and early childhood from an Australian perspective

Climate change is an urgent global public health issue with substantial predicted impacts in the coming decades. Concurrently, global burden of disease studies highlight problems such as obesity, mental health problems and a range of other chronic diseases, many of which have origins in childhood. There is a unique opportunity to engage children in both health promotion and education for sustainability during their school years to help ameliorate both environmental and health issues. Evidence exists for the most effective ways to do this, through education that is empowering, action orientated and relevant to children’s day to day interests and concerns, and by tailoring such education to different educational sectors. The aim of this discussion paper is to argue the case for sustainability education in schools that links with health promotion and that adopts a practical approach to engaging children in these important public health and environmental issues. We describe two internationally implemented whole-school reform movements, Health Promoting Schools (HPS) and Sustainable Schools (SS) which seek to operationalise transformative educational processes. Drawing on international evidence and Australian case examples, we contend that children’s active involvement in such processes is not only educationally engaging and rewarding, it also contributes to human and environmental resilience and health. Further, school settings can play an important ecological public health role, incubating and amplifying the socially transformative changes urgently required to create pathways to healthy, just and sustainable human futures, on a viable planet.

Introduction

This is not a book about the perils of global warming and its impact on children, although climate change provides an impetus. Nor is it a response to environmental issues that shifts responsibilities from adults to children, asking them to fix what we leave behind. Instead, it is a book of positive ideas and actions that shows what early childhood educational communities can do when children, teachers and parents work together to address, arguably, one of the most serious issues of our time. It is about what early childhood education – and specifically, early childhood teacher education – can and must do to play its part in helping societies move towards sustainable living. It is about the emerging field of early childhood education for sustainability (ECEfS).

What is early childhood education for sustainability?

Julie Davis canvasses the literature to explain why sustainability issues are important for young children and why early childhood educators should become engaged with EfS. She outlines the short history of ECEfS in Australasia and internationally, emphasising its marginalised and fragile early phase that is now beginning to coalesce into a robust international movement. She then highlights two recent studies undertaken in child care centres that illustrate the learning and actions that are possible when education for sustainability is incorporated into early childhood curriculum and pedagogy. Julie ends the chapter by identifying the qualities that might characterise early childhood education for sustainability, stressing its requirement to be transformative education that builds the capabilities of young children as agents of change for sustainability. In so doing, she draws together theoretical strands from both early childhood education and EfS, beginning the process of constructing a theoretical framework for ECEfS.

Creating deep and broad change through research and systems approaches in early childhood education for sustainability

The co-authors raise two matters they consider essential for the future development of ECEfS. The first is the need to create deep foundations based in research. At a time of increasing practitioner interest, research in ECEfS is meagre. A robust research community is crucial to support quality in curriculum and pedagogy, and to promote learning and innovation in thinking and practice. The second 'essential' for the expansion and uptake of ECEfS is broad systemic change. All level within the early childhood education system - individual teachers and classrooms, whole centres and schools, professional associations and networks, accreditation and employing authorities, and teacher educators - must work together to create and reinforce the cultural and educational changes required for sustainability. This chapter provides explanations of processes to engender systemic change. It illustrates a systems approach, with reference to a recent study focused on embedding EfS into teacher education. This study emphasises the apparent contradiction that the answer to large-scale reform lies with small-scale reforms that build capacity and make connections.

Early childhood education for sustainability : why it matters, what it is, and how whole centre action research and systems thinking can help

The global financial crisis, global pandemics, global warming and peak oil are indicative of a world facing major environmental, social and economic problems. At the same time, world population continues to rise and global inequalities deepen. Children are the most vulnerable to the impacts of unsustainable living with specific harms arising because of their physical and cognitive vulnerabilities. Nevertheless, children do not have to be victims in the face of these challenges. Education, including early childhood education, has an important role to in building resilience and capabilities in children that equip them as active and informed citizens now and in the future and who are capable of contributing to healthy and sustainable ways of living. Drawing on educational change literature, action research, education for sustainability, health promotion and systems theory, this paper outlines three strategies that can help reorient early childhood education towards sustainability. One strategy is the adoption of whole centre approaches to sustainability and education for sustainability. This means working across the whole of a centre’s operations – curriculum and pedagogy, physical and social environments, its partnerships and community connections. The second strategy – applied in conjunction with the first – is the use of action research to investigate the early childhood setting and to create the desired changes. The third strategy is the adoption of systems thinking as a way of leveraging support and momentum for change so that education for sustainability goes beyond the initiatives of individual teachers and centres, and becomes a systems-wide imperative.