This thesis examines the regulation behind exclusion clauses and their use in third party motor insurance policies. The thesis answers three key questions. First, to what extent are exclusion clauses valid in third party motor insurance policies against third parties? Second, what is the effect of the use of exclusion clauses on third party claims? Third how should the law in this area be reformed? It further examines the effect on exclusion clauses of general contractual and insurance contract regulation on third party victims. Finally, the thesis will examine the role of the MIB and whether it provides adequate protection as a ‘fund of last resort’.

This study is an examination of how English courts have approached, or are likely to approach - and therefore, the effectiveness of - attempts by the parties to oil and gas contracts to allocate risks arising from the activities which form the subject matter of their respective contracts inter se. The study utilises petroleum industry standard form offshore drilling contracts in the United Kingdom, Canada and the United States of America as the context for this analysis, and examines the risks associated with drilling and other incidental operations, in the light of catastrophic events such as the Macondo disaster in the Gulf of Mexico and the Montara disaster in the Timor Sea. Drawing from the Economic Theory of Law espoused by Richard Posner, which correlates market behaviour, resource allocation and the legal system, and so conceptualises risk from a cost and utility perspective, the study will show that it is actually the economic consequences of the occurrence of an event that are being allocated, and that the entire notion of risk allocation is a determination of how the economic cost of the occurrence of the particular consequence will be borne by the parties to the contract. The study will conclude with a comparative analysis of risk allocation in the different model contracts, and an opinion on the success/effectiveness of the model contracts, as tools used by parties for risk allocation inter se, in response to the challenges created by legislative and judicial intervention. Justification for this opinion will be given, with reference to relevant case law and statutes in the different jurisdictions. Recommendations will be made on how the risk allocation structure can be improved, either by reference to other approaches the parties could adopt, or by clarifying ambiguities in the current approach (where applicable), and proposing a balance in the instances in which, from the study's perspective, the allocation formula is skewed, either due to the imbalance of power between the parties or by the interference of external forces such as the courts and legislature.

<p>The purpose of this study has been to investigate the prospects for identifying and prosecuting individuals suspected of war crimes, within the process of exclusion from refugee status under article 1F(a) of the 1951 Refugee Convention, and using subsequent mechanisms for extradition or prosecution in international criminal law. A number of principles within human rights law and public international law have been advocated by the UNCHR and several human rights NGOs as necessary for a thorough application of the exclusion clauses; one that takes individual responsibility into account and upholds the aims and purposes of the exclusion clauses. There is a discussion as to whether specialised or accelerated exclusion procedures are justified for reasons of security and efficiency, or if they put the rights of the individual at risk and limit the opportunities for gathering information to support investigation and prosecution of the crime in question. Apart from the instruments of asylum law and procedure that have emerged within the EU harmonisation process, there are no general, binding rules on the procedural aspects of the exclusion clauses. One principle that regulates the consequences for the individual of exclusion from refugee status and decisions on extradition is, however, the principle of <em>non-refoulement</em>. Although partly contested in state practice, there is widespread consensus in international jurisprudence and doctrine that the principle, following its status as a <em>jus cogens</em> rule, prohibits every state from returning any individual to a territory where he or she may face torture or other cruel and inhuman treatment or punishment, irrespective of any security risks that the individual may pose to the custodial state.</p><p>Extradition or prosecution of individuals suspected of crimes under article 1F(a), based on universal jurisdiction and the principle of <em>aut dedere aut judicare</em>, has gained increased support from international conventions, such as the 1948 Convention on Genocide and the Rome Statute of the International Criminal Court. The principles are widely upheld by human rights NGOs, and tendencies in practice and policy among the member states of the EU and the parties to the Rome Statute point towards the development of a customary rule of universal jurisdiction among these states. Continuing resistance to the Rome Statute and to universal jurisdiction among influential states such as the USA, Russia, China and India nevertheless serves to exclude these states from being bound by such an emerging customary rule of universal jurisdiction. There are compelling arguments as to why breaches of <em>jus cogens</em>-rules should include or give rise to <em>erga omnes</em> rights or obligations for all states to exercise universal jurisdiction over such breaches. Without the support of major states it is, however, difficult to establish the existence of the general state acceptance of universal jurisdiction as is required for the principle to attain <em>jus cogens</em>-status and become universally applicable, regardless of state consent. Future prospects for adequate and efficient identification and prosecution of suspected war criminals depend on the correct and thorough application of the exclusion clauses, in combination with the development of existing rules of universal jurisdiction, and not least on the willingness and ability of states to overcome the political, economic and institutional obstacles that presently may prevent many states from extraditing or prosecuting individuals who fall within the scope of article 1F(a) of the exclusion clauses.</p>

The purpose of this study has been to investigate the prospects for identifying and prosecuting individuals suspected of war crimes, within the process of exclusion from refugee status under article 1F(a) of the 1951 Refugee Convention, and using subsequent mechanisms for extradition or prosecution in international criminal law. A number of principles within human rights law and public international law have been advocated by the UNCHR and several human rights NGOs as necessary for a thorough application of the exclusion clauses; one that takes individual responsibility into account and upholds the aims and purposes of the exclusion clauses. There is a discussion as to whether specialised or accelerated exclusion procedures are justified for reasons of security and efficiency, or if they put the rights of the individual at risk and limit the opportunities for gathering information to support investigation and prosecution of the crime in question. Apart from the instruments of asylum law and procedure that have emerged within the EU harmonisation process, there are no general, binding rules on the procedural aspects of the exclusion clauses. One principle that regulates the consequences for the individual of exclusion from refugee status and decisions on extradition is, however, the principle of non-refoulement. Although partly contested in state practice, there is widespread consensus in international jurisprudence and doctrine that the principle, following its status as a jus cogens rule, prohibits every state from returning any individual to a territory where he or she may face torture or other cruel and inhuman treatment or punishment, irrespective of any security risks that the individual may pose to the custodial state. Extradition or prosecution of individuals suspected of crimes under article 1F(a), based on universal jurisdiction and the principle of aut dedere aut judicare, has gained increased support from international conventions, such as the 1948 Convention on Genocide and the Rome Statute of the International Criminal Court. The principles are widely upheld by human rights NGOs, and tendencies in practice and policy among the member states of the EU and the parties to the Rome Statute point towards the development of a customary rule of universal jurisdiction among these states. Continuing resistance to the Rome Statute and to universal jurisdiction among influential states such as the USA, Russia, China and India nevertheless serves to exclude these states from being bound by such an emerging customary rule of universal jurisdiction. There are compelling arguments as to why breaches of jus cogens-rules should include or give rise to erga omnes rights or obligations for all states to exercise universal jurisdiction over such breaches. Without the support of major states it is, however, difficult to establish the existence of the general state acceptance of universal jurisdiction as is required for the principle to attain jus cogens-status and become universally applicable, regardless of state consent. Future prospects for adequate and efficient identification and prosecution of suspected war criminals depend on the correct and thorough application of the exclusion clauses, in combination with the development of existing rules of universal jurisdiction, and not least on the willingness and ability of states to overcome the political, economic and institutional obstacles that presently may prevent many states from extraditing or prosecuting individuals who fall within the scope of article 1F(a) of the exclusion clauses.

Les sociétés sont traditionnellement classées en sociétés de personnes et sociétés de capitaux. L’intuitus personae constitue le fondement sur lequel repose cette distinction. Fort présent dans les sociétés de personnes, l’intuitus personae serait, en théorie, absent dans les sociétés de capitaux. Toutefois, cette distinction classique ne correspond plus, aujourd’hui, à la réalité. Nous assistons, en effet, à la résurgence de la considération de la personne dans les sociétés de capitaux à travers le développement de techniques contractuelles dont le but est de contrôler l’accès à ces sociétés. Ce mouvement de personnalisation a été renforcé par le législateur, d’abord, par la création de la société par actions simplifiée, mais aussi par la reconnaissance, dans les sociétés cotées, de la notion de concert ou encore d’un droit de sortie au profit des actionnaires minoritaires. La consécration de la validité de l’exclusion, qu’elle soit conventionnelle ou le résultat d’un mécanisme spécifique du droit des sociétés comme le retrait obligatoire ou le coup d’accordéon, participe également de ce phénomène. Cette présence a des conséquences majeures sur le fonctionnement de ces sociétés, mais aussi sur le droit des sociétés en général. En effet, d’une part, la reconnaissance de la primauté des relations entre actionnaires sur les capitaux offre une nouvelle perspective de la notion d’affectio societatis et du principe majoritaire. Et d’autre part, la mise en oeuvre de l’intuitus personae dans des sociétés dans lesquelles il est censé être absent affecte la cohérence même du droit des sociétés en anéantissant la summa divisio sur laquelle ce droit est bâti et en dénaturant le choix du pluralisme juridique, fait de longue date par le législateur français, qui commande en présence d’une pluralité de structures offertes aux opérateurs, une distinction de chacune d’elles reposant sur des critères précis et invariables. / Companies are traditionally classified into partnerships and joint stock companies. Intuitus personae is the basis for this distinction. Clearly present in partnership companies, intuitus personae is, in theory, absent in joint stock companies. However, this traditional distinction does not correspond today to reality. We are, in fact, witnessing a resurgence of the consideration of the individual in joint stock companies by means of contractual techniques whose aim is to control access to these companies. This resurgence has been further strengthened by the legislator, first by the creation of the status of simplified stock company and also by the recognition in listed companies of the existence of concerted action and a right to voluntary withdrawal benefiting minority stockholders. The admission of the validity of exclusion, either conventional or resulting from mechanisms specific to company law such as a squeeze out or even an “accordion squeeze”, add to the growth of this phenomenon. This presence of intuitus personae has major implications on the functioning of joint stock companies and on company law, in general. Indeed, on the one hand, the primacy of shareholder relationships over capital offers a new perspective of the notion of affectio societatis and the principle of majority rule. On the other hand, the introduction of intuitus personae into companies where this concept should have been absent affects the coherence of company law by destroying the summa divisio basis on which this law is founded and by distorting the legal pluralism long ago adopted by the French legislator which, in the presence of diverse legal structures, necessitates a distinction amongst them based on precise and invariable criteria.

La stipulation des clauses de force majeure dans les contrats internes et internationaux de longue durée procède de la liberté contractuelle et doit sa raison d'être dans la répulsivité des normes supplétives d'allocation des risques. La reconnaissance de leur licéité reste incertaine en raison des difficultés d'identification de leur technique et de leur nature juridique que la doctrine assimile à la quadrature du cercle en géométrie.Compte tenu de l'impact de l'aléa sur l'existence de l'objet et la valeur de l'obligation de garantie qui constitue l'essence des clauses de force majeure, une summa divisio peut être fondamentalement esquissée entre les clauses d'appréciation et d'attribution des risques de force majeure. Les unes sont assujetties à un aléa juridique et relèvent du régime des actes juridiques aléatoires. Les autres sont affectées par un aléa économique et procèdent du régime des actes juridiques commutatifs même si la jurisprudence les rattache indûment au régime des clauses de responsabilité.De lege ferenda, la rationalisation du régime des clauses de force majeure nécessite la codification du raisonnable en tant que principe directeur du droit interne des contrats afin d'entreprendre leur summa divisio en soumettant distributivement les clauses d'appréciation des risques au test qualitatif du raisonnable de conformité et les clauses d'attribution des risques au test quantitatif du raisonnable de modulation / The statement of force majeure provisions in long-term internal and international contracts is based on the ground of the freedom of contract and promoted by the inefficiency of suppletive risk allocation norms in modern legal systems. The recognition of their enforceability still subject to uncertainty due to the misunderstanding of their drafting and their judicial construction that is commonly said to amount to squaring the circle. Base on the influence of the uncertainty conditioning the subject-matter and the value of the obligation to guarantee underlying force majeure clauses, a fundamental summa divisio is drawn up between risk assessment and risk attribution agreements. The first clauses are subject to the uncertainty of a legal nature and should follow the random legal acts framework. The second are affected by the uncertainty of economic nature and should depend to the commutative legal acts framework even though force majeure clauses are unduly treated in case law as exclusion clauses. De lege ferenda, the force majeure clauses regime is expected to be rationalized with the integration of the reasonable reasoning as a fundamental guiding principal of French contract law so that to implement the summa divisio of force majeure agreements by adjusting distributively the risk assessment clauses unreason through the reasonable compliance test and the risk attribution clauses abuses through the reasonable modulation test

Universally complications exist concerning insurance cover for the risks posed by pollution damage. Environmental insurance cover can be procured under first-party or third-party insurance. For the latter, the polluter's statutory or civil liability is required. The determination of liability for compensation, especially delictual liability, remains problematic. The right to the environment in section 24 of the Constitution creates a general duty of care. The introduction of a strict liability regime can be recommended to alleviate the burden of proving fault and contributory negligence. Where there is multiple or cumulative causation or the exact identity of the polluter is unknown, potential solutions regarding the allocation of liability include a pollution-share, joint and several, market-share or, as a last resort, a proportional allocation. Actionable damages should include property damage, pure economic loss, clean-up costs and natural resource damages, including compensation for reduced aesthetic value. Due to the uncertainty and potential magnitude of pollution-related claims, insurers have attempted to avoid or limit these risks by including specific pollution exclusion and limitation clauses in policies. Statutory regulation of policy content and prescribed wording for clauses could address problems relating to the interpretation of policy provisions. Various other issues such as the coverage of gradual pollution, the effect of the various triggers of coverage and the potential long-tail liability of insurer, the lack of information and the unpredictability of the risk cause further complications for both the insured and the insurer. Policies should preferably be issued on a `claims-made' basis linked to retroactive dates. Mandatory third-party insurance to the benefit of a third party should be required within specific high-risk industries, specifically for the benefit of the prejudiced person or an environmental remediation fund. The right of a prejudiced party to claim directly from the polluter's liability insurer should be introduced. Currently, the focus appears to be more on protection and environmental remediation than on civil compensation. There is an urgent need for the development of statutory and civil liability compensation mechanisms and for an increased regulation of insurance policies and practices to ensure effective insurance cover to provide compensation for environmental damage. / Jurisprudence / LL.D.

Universally complications exist concerning insurance cover for the risks posed by pollution damage. Environmental insurance cover can be procured under first-party or third-party insurance. For the latter, the polluter's statutory or civil liability is required. The determination of liability for compensation, especially delictual liability, remains problematic. The right to the environment in section 24 of the Constitution creates a general duty of care. The introduction of a strict liability regime can be recommended to alleviate the burden of proving fault and contributory negligence. Where there is multiple or cumulative causation or the exact identity of the polluter is unknown, potential solutions regarding the allocation of liability include a pollution-share, joint and several, market-share or, as a last resort, a proportional allocation. Actionable damages should include property damage, pure economic loss, clean-up costs and natural resource damages, including compensation for reduced aesthetic value. Due to the uncertainty and potential magnitude of pollution-related claims, insurers have attempted to avoid or limit these risks by including specific pollution exclusion and limitation clauses in policies. Statutory regulation of policy content and prescribed wording for clauses could address problems relating to the interpretation of policy provisions. Various other issues such as the coverage of gradual pollution, the effect of the various triggers of coverage and the potential long-tail liability of insurer, the lack of information and the unpredictability of the risk cause further complications for both the insured and the insurer. Policies should preferably be issued on a `claims-made' basis linked to retroactive dates. Mandatory third-party insurance to the benefit of a third party should be required within specific high-risk industries, specifically for the benefit of the prejudiced person or an environmental remediation fund. The right of a prejudiced party to claim directly from the polluter's liability insurer should be introduced. Currently, the focus appears to be more on protection and environmental remediation than on civil compensation. There is an urgent need for the development of statutory and civil liability compensation mechanisms and for an increased regulation of insurance policies and practices to ensure effective insurance cover to provide compensation for environmental damage. / Jurisprudence / LL.D.