Determination of applicable law for direct action against insurer in Serbian private international law


In this paper author deals with problem of determining the law applicable to direct action against insurer that arises because Serbian PIL Act does not contain the special confl ict rule for this issue. Basically, there are two solutions for the problem that are in detail discussed by author. Firstly, it may be solved in the process of characterisation (qualifi cation) which is usual way for solving this kind of problems. In Serbian legal system the direct action against insurer is classifi ed as the issue that belongs to non-contractual (tort) liability, so it means that confl ict rule for tort liability contained in art 28 of PIL Act shall apply to this issue. However, pursuant to art 2of PIL Act, which serves for fi ling the gaps in this act, there is a possibility to create the new (special) confl ict rule for direct action (second solution). Th e undertaking this task is disputable, since the problem of missing rule may be avoided by characterisation. Despite of that, author fi nds that the creation of special confl ict rule might be undertaken because of specifi c substantial characteristics of direct action against insurer in Serbian law (i.e. its close connection to delictual liability as well as to insurance contract and its aim to protect the person sustaining damage) that may justify its independent private international law treatment. Having in mind the opinions in contemporary literature of private international law as well as the solutions of some modern codifi cations, author suggests that the newly created confl ict rule should provide alternative application of law applicable to tort liability and law applicable to insurance contract which have to be added with one special provision that regulates scope of its application.