The Financial Services and Markets Act 2000 (Law Applicable to Contracts of Insurance) Regulations 2009

Statutory Instruments

2009 No. 3075

Financial Services And Markets

The Financial Services and Markets Act 2000 (Law Applicable to Contracts of Insurance) Regulations 2009

Made

23rd November 2009

Laid before Parliament

24th November 2009

Coming into force

17th December 2009

The Treasury, in exercise of the powers conferred by sections 424(3), 417(1) M1 and 428(3) of the Financial Services and Markets Act 2000 M2 , make the following Regulations:

Modifications etc. (not altering text)

C1 Regulations: power to modify conferred (11.7.2023) by Financial Services and Markets Act 2023 (c. 29), ss. 3, 86(3), Sch. 1 Pt. 2; S.I. 2023/779, reg. 2(d)

Marginal Citations

M1 See the definition of “prescribed” in section 417 of the Financial Services & Markets Act 2000 (c. 8).

M2 2000 c. 8.

Citation, commencement and interpretation U.K.

1.—(1) These Regulations may be cited as the Financial Services and Markets Act 2000 (Law Applicable to Contracts of Insurance) Regulations 2009 and come into force on 17th December 2009.

(2) In these Regulations—

“the 2001 Regulations” means the Financial Services and Markets Act 2000 (Law Applicable to Contracts of Insurance) Regulations 2001M3 ;

“the Rome I Regulation” means Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17th June 2008 on the law applicable to contractual obligations (Rome I)M4 [F1 , as that Regulation has effect as retained direct EU legislation, unless the contractual obligations are ones in respect of which Regulation (EC) No. 593/2008 has effect by virtue of Article 66 of the EU withdrawal agreement, in which case it means that Regulation as it has effect by virtue of that Article.]

(3) Expressions used in regulations 4 and 5 and in the Rome I Regulation have the same meaning as in the Rome I Regulation unless the context requires otherwise.

Textual Amendments

F1 Words in reg. 1(2) inserted (31.12.2020) by The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/834), regs. 1, 7(2) (as substituted by S.I. 2020/1574, regs. 1, 6(9)); 2020 c. 1, Sch. 5 para. 1(1)

Marginal Citations

M3 S.I. 2001/2635, amended by S.I. 2001/3542 and S.I. 2007/2403.

M4 OJ L 177, 4.7.2008, p. 6.

Limited application of the 2001 Regulations U.K.

2.—(1) After regulation 3(1) of the 2001 Regulations insert—

“(1A) These Regulations do not apply to contracts of insurance entered into on or after 17th December 2009.”.

(2) In regulation 3(2) of the 2001 Regulations, after the words “friendly societies” insert “ before 17th December 2009 ”.

Application of the Rome I Regulation: conflicts [F2 between different parts of the United Kingdom] U.K.

3.   [F3 Article 7 of the Rome I Regulation, as that Regulation has effect as retained direct EU legislation,] applies in the case of conflicts between—

(a) the laws of different parts of the United Kingdom, or

(b) the laws of one or more parts of the United Kingdom and Gibraltar,

in relation to contracts of insurance described in Article 7 of the Rome I Regulation as it applies in the case of conflicts between the laws of different countries.

Textual Amendments

F2 Words in reg. 3 heading substituted (31.12.2020) by The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/834), regs. 1, 7(3)(a) (as substituted by S.I. 2020/1574, regs. 1, 6(9)); 2020 c. 1, Sch. 5 para. 1(1)

F3 Words in reg. 3 substituted (31.12.2020) by The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/834), regs. 1, 7(3)(b) (as substituted by S.I. 2020/1574, regs. 1, 6(9)); 2020 c. 1, Sch. 5 para. 1(1)

Contracts of insurance of risks other than large risks: greater freedom of choice of law U.K.

4.  Where, in the case of a contract of insurance to which Article 7(3) of the Rome I Regulation applies, the law referred to in sub-paragraph (a) or (b) of that Article, or one of the laws referred to in sub-paragraph (e) of that Article, is a law of any part of the United Kingdom, the parties to that contract may also choose as the law applicable to the contract—

(a) the law of another country; or

(b) the law of another part of the United Kingdom,

if that choice complies with Article 3, Article 6 and Articles 9 to 22 of that Regulation.

Community co-insurers U.K.

5.  Where the parties to the contract may choose the applicable law under the Rome I Regulation or under regulation 4, and where the risk to which the contract relates is covered by Community co-insurance (within the meaning of [F4 Article 190 of the Solvency 2 Directive]), co-insurers other than the leading insurer (within the meaning of [F5 that Article]) are not to be treated as parties to the contract.

Textual Amendments

F4 Words in reg. 5 substituted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 2 para. 31(2)(a)

F5 Words in reg. 5 substituted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 2 para. 31(2)(b)

Dave Watts

Bob Blizzard

Two of the Lords Commissioners of Her Majesty's Treasury

Explanatory Note

(This note is not part of the Regulations)

These Regulations concern the application of Regulation (EC) No. 593/2008 of the European Parliament and of the Council on the law applicable to contractual obligations (Rome I) to contracts of insurance (“the Rome I Regulation”). The Rome I Regulation establishes uniform choice of law rules in the field of contractual obligations between Member States.

The amendments made in regulation 2 limit the application of the provisions on the law applicable to contracts of insurance contained in the Financial Services and Markets Act 2000 (Law Applicable to Contracts of Insurance) Regulations 2001 (S.I. 2001/2635) to contracts of insurance entered into before 17th December 2009, the date on which the Rome I Regulation comes into force.

Regulation 3 extends the application of the Rome I Regulation to conflicts between the laws of England and Wales, Scotland, Northern Ireland, or between the laws of any of the foregoing and Gibraltar, that it would not otherwise apply to.

Regulation 4 makes provision permitted by the third subparagraph of Article 7(3) of the Rome I Regulation, allowing parties to contracts insuring risks other than large risks greater freedom of choice of law applicable than would otherwise be available to them under that Article where the risk is situated in the United Kingdom (Article 7(3)(a)), the policyholder has their habitual residence in the United Kingdom (Article 7(3)(b)) or the policyholder carries on a business, trade or profession and the insurance contract covers two or more risks which relate to that business which are situated in different Member States, and the United Kingdom is one of those States or the country of habitual residence of the policyholder (Article 7(3)(e)).

Regulation 5 specifies that where the risk is covered by Community co-insurance, as defined by Council Directive 78/473/EEC on the coordination of laws, regulations and administrative provisions relating to Community co-insurance (OJ L 151, 7.6.78, p.25) the leading insurer is to be treated as the only insurer.