Legal Protection October 2011 RIAD
Bulletin The International Association of
Legal Protection Insurance
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Table of content:Editorial
RIAD
- Decisions taken by Board and General Council
- Jitka Chizzola new RIAD Board member
- RIAD conference on mediation
- Member workshop on current challenges for legal protection insurers
- RIAD congress 2012 in Prague
National Sections
- Belgium: supervisory authority interprets directive
- The Netherlands: free choice of lawyer and new rules on legal representation in court
- Austria: definite ruling on the free choice of lawyer in Case “Stark”
- Austria: legal protection insurers get support from the Highest Court
Issues of specific interest
- RIAD meets CCBE
Legal issues
- European Contract Law
- Consumer Rights Directive adopted
DEUTSCH
FRANCAIS
Dear Member,
I hope you liked reading the first edition of the Legal Protection Bulletin and cannot wait to see what happened meanwhile. For me the most prominent event was RIAD’s annual conference in Verona on mediation. It was a great opportunity to meet you and I trust that you look forward to equally interesting future conferences as much as I do. To this end, RIAD presently prepares a spring workshop for members in Berlin and an Action Team has set out to develop an amazing programme for our next congress in Prague. Please find out more about these two events in this Bulletin.
A noteworthy meeting took place on 5th October when RIAD meet the European umbrella association of the national Bars and Law Societies, the CCBE. I guess both sides approached this encounter with mixed feelings but the discussions turned out to be fruitful and informative. Therefore, a follow-up meeting will take place which will serve to dig deeper into some issues.
So you see, the next couple of months will be busy and you can expect to hear from me again soon.
Yours faithfully,
Antje Fedderke (RIAD Secretary General)
RIAD
Decisions taken by Board and General Council
On 29 September 2011 the General Council admitted the German company, NRV Legal Protection Insurance, as new member, gave the go-ahead to work out fairer rules for the representation of national sections, and chose a new logo for RIAD.
The new member, Neue Rechtsschutz-Versicherungsgesellschaft AG (NRV – www.nrv-rechtsschutz.de), is a medium-sized company with 88 employees, more than 410,000 clients and gross written premiums of €69.3 million in 2010. NRV has been active as legal protection specialist since 1955 and had been RIAD member till 2006. RIAD warmly welcomes NRV back among its members.
Representation of national sections presently depend entirely on the respective share in the combined premium income of all members, i.e. national sections have the right to nominate 1 to 4 delegates to RIAD’s governing body, the General Council (Article 10 c. of the Statutes). Although in principle this system has been working to the satisfaction of most members it does not take into account the number of companies within one country and has led to some discrepancies. General Council members have therefore agreed that the RIAD Secretariat will propose amendments to the statutes which might provide a more balanced system for representation.
An ongoing issue has been to refresh our Association’s appearance and give it a modern image. Therefore, General Council members have chosen a new logo for RIAD which reflects its all-embracing interests and its global membership. This new logo will be launched within the next year.
Jitka Chizzola new RIAD Board member
In Verona General Council members elected Jitka Chizzola, Chairman of D.A.S. Czech Insurance and Legal Protection, as new RIAD Board member.
Jitka Chizzola started her professional career as manager, marketing specialist and director in Austria. Among others, she held positions with Vossen Frottier and Minolta Export. In 1994 Jitka Chizzola started D.A.S. Legal Protection Insurance from scratch and has ever since been the pioneer of legal protection in the Czech Republic. She has introduced and successfully developed D.A.S. Legal Protection from a one man show to a flourishing market leader which is operating within the entire Czech market. Her know-how of legal protection, drive for success and creativity will be a valuable asset to the RIAD Board and we wish her success in this position.
Besides Jitka Chizzola, RIAD Board members are:
Paul J. Asplin, CEO D.A.S. Group UK – President
Enrique Ayuso, CEO DEPSA Spain – First Vice-President
Roland Schlitt, Member of the Board, ROLAND Rechtsschutz-Versicherungs-AG Germany, Second Vice-President
Jan Moerland, Managing Director Legal Services, D.A.S. Netherlands
Marie-Emmanuelle Schiltz, CEO Juridica France
Rob Vromen, CEO EUROMEX N.V. Belgium
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RIAD conference on mediation
Mediation – An answer to consumer needs? RIAD raised this question and some 150 delegates tried to respond during the conference on 29 and 30 September in Verona. In fact, alternative dispute resolution and its implications have been on RIAD’s agenda since 2003, when members gathered in Dresden to discuss this issue for the first time. Since then, the topic has gathered momentum, last but not least because the transposition period of the EU Directive on mediation came to an end in May 2011, and has become more topical than ever: RIAD’s conference was, again, on the pulse of times.
The high-level speakers revealed for delegates the potentials of mediation as a viable, effective and quick alternative form of solving disputes and a tool for obtaining justice. Several keynote speakers took the floor, among them Manon Schonewille, Avv. Federico Reggio PhD and Professor Dr. Ulla Gläßer, LL.M. They provided an overview of mediation, underlined some of the challenges legal protection insurers have to address in order to enhance the use of mediation, stressed the importance of training mediators and of accreditation procedures to guarantee high quality mediation.
Adrienne O’Sullivan, CEO of DAS Ireland Group, was a skilled moderator whose expertise was evident and led the audience through the day. She conducted the panel discussion with excellence; thanks to her and the panelists this session disclosed possible ways of enhancing the use of mediation as well as the potential key role of legal protection insurers in promoting it.
Avv. Stefano Cardinale presented the ambitious Italian way of transposing the EU Directive, i.e. compulsory mediation, imbedded in a system of incentives and severe sanctions. Afterwards Professor Jean-François Roberge introduced the audience to the Canadian system, which has a very high percentage of dispute resolution through mediation.
A question and answer session showed delegates how mediation and its methods are used by a Suisse and a Belgian company. While the Suisse company, ORION, has been promoting mediation over several years (e.g. Orion was the first legal protection insurance company in Switzerland to include mediation costs explicitly in the catalogue of insured benefits), EUROMEX, the Belgian company, uses different mediation techniques for amicable settlements of claims.
The three working group sessions gave participants the opportunity to discuss and exchange views. Discussions were very lively and informative and helped delegates to reflect on the content of the presentations and contribute actively to the issues raised.
As a proof how important the subject is, the European Parliament adopted shortly before our conference a resolution on the implementation of the directive on mediation in the Member States, its impact on mediation and its take-up by the courts.
Moreover, in preparation of the event, RIAD had conducted a survey among members to get an overview of national regulations and, in particular, how legal protection insurers are involved. RIAD members provided valuable information but it is clear that in some countries legal protection insurers do not fac ilitate mediation at all and the practical use of mediation by insurers as a tool to settle claims is not yet very common in most countries. Accordingly, one of the European Parliament’s conclusions is that further action is needed in terms of education, increasing awareness of mediation, enhancing mediation uptake by business and implementing requirements for the qualification of mediators. A study on the use of ADR, commissioned by the Parliament, confirms this and identifies as main barriers to the use of ADR a lack of awareness, geographical and sectoral gaps, financing, reluctance of businesses and language barriers.
So, what is the answer to the initial question and what can we conclude from our conference? It is safe to say that mediation holds much potential and that the outlook on its future is rather positive. However, to make mediation work in everybody’s interest it will require further action and cooperation of all parties involved.
We will shortly publish a brochure which will summarize the discussions and the presentation. You can already find out more about the conference on our website.
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Members’ workshop on current challenges for legal protection insurers
RIAD invites all members to participate in a workshop on 15 and 16 March 2012 in Berlin. This working session will follow-up a recent survey among RIAD members and will allow an exchange about barriers which legal protection insurers encounter with regard to legal, actual and other restrictions, whatever their sources are, with a particular focus on the new media, e.g. social media, internet, e-mails etc.
Participants will learn about general trends, identify within working groups which problems might currently evolve and work out solutions to overcome these challenges. Moreover, the workshop will give an opportunity to learn what is happening in other countries, develop strategies which prevent that certain problematic ideas expand beyond national borders and, if necessary, how they can be met.
The workshop will take place in the center of Berlin at the Golden Tulip Hotel, Landgrafenstrasse 4, 10787 Berlin, www.goldentulipberlin.de and is open to a maximum of 80 participants. If you are interested or want to register please contact us (phone: +32 2 732 36 28, e-mail: ).
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RIAD congress 2012 in Prague
The next Congress on 4 and 5 October 2012 will be dedicated to the potentials of legal protection insurers as providers of legal services. The congress will be open to a broad public and RIAD wants to find out what customers will need in the future and what its members will be able to offer.
If you want to stay in the picture you should not miss this event. Our Action Team is presently developing an exciting programme introducing high-level speakers who will share with us their visions and dumbfounding ideas about the future of legal services and legal protection insurance. The congress will start on Thursday afternoon and last until early Friday afternoon. This will give participants more time for discussions and will allow a more profound work within small groups.
Please book 4th and 5th October 2012 already in your agenda. We will keep you posted about the ongoing preparatory work and you’ll receive notice for registration in due time. More information will be available soon on our website.
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National Sections
Belgium: supervisory authority interprets directive
The Belgian Supervisory Authority, CBFA (Commission bancaire, financière et des assurances, now FSMA[1]), outlined for legal protection insurers the essential safeguards for avoiding conflicts of interests, defined the free choice of lawyer, and spelled out Belgian insurers’ options for limiting the coverage of costs.
As a basic principle the FSMA underlines that legal protection insurers are responsible for the provision of legal services as well as for the reimbursement of costs to allow the insured to enforce his rights.
In its circular letter the Authority covers specialised and composite legal protection insurers as well as companies underwriting legal protection insurance contracts. For composite insurance companies, to avoid conflicts of interests, it is important that the legal protection department always takes precedence over other departments, is responsible for all decisions concerning a claim and follows strict rules regarding the transmission of documents.
The letter stipulates that insurers can propose certain lawyers to their insureds only if explicitly asked and the choice cannot be limited territorially (e.g. lawyers registered within the district of a certain court). The insurer can, however, exclude from the cover the costs incurred due to the fact that the insured has chosen a lawyer from outside a certain territory (e.g. travel expenses). The FSMA sets forth more admissible ways to limit the coverage of costs which include, inter alia, capping the amount covered per year or per claim for lawyers’ fees and expenditures, covering only the costs of one lawyer per claim or limiting cover to the amount which would be incurred if the case was handled by one single lawyer.
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The Netherlands: free choice of lawyer and new rules on legal representation in court
Two main issues have emerged in the Dutch market: the Amsterdam Appellate Court ruled that the insured can choose his lawyer only when the legal protection insurer requests a lawyer to defend, represent or serve an insured party in an inquiry or court procedure. Secondly, new rules on legal representation in court were introduced, raising the threshold from €5,000 to €25,000 for civil cases.
On 27 July 2011 the Dutch Appellate Court of Amsterdam (“Gerechtshof Amsterdam”) confirmed the decision taken earlier this year in a provisional procedure, i.e. refusing the claim of an insured to be represented by a certain lawyer. Contrary to his concrete decision, the judge in the initial proceedings had expressed his opinion that, in a procedure where representation by a lawyer is not obligatory, the freedom of choice of lawyer must be interpreted as the freedom to choose a legal representative who can assist the insured in the procedure.
The Appellate Court now ruled (national reference number: LJN: BR5339, case number 200.085.721/01) that the freedom of choice of lawyer applies only if the following two criteria are met:
1. the legal protection insurer must have decided that an inquiry or court procedure must be started on behalf of the insured;
2. the legal protection insurer decides that the case will not be (further) handled by an in-house lawyer, but will be (or has to be) transferred to an external lawyer.