With regards to the insurability of the risks connected to the sending collaborators abroad, in addition to and beyond the usual policies that the traveler can benefit from (with regard to accidents, illnesses, surgeries, muggings, etc ... ......) it is necessary to mention the cd "Legal risk insurance" and the so-called “Kidnap and Ransom” policy.
In the first case, the Italian Entity can legitimately stipulate policies with companies specialized in this type of insurance sector, in order to mitigate the risk of incurring large legal costs in case of events that may involve the business traveler abroad (for example, for violating rules of conduct, religious rules, and so on). But the "legal risk" policy can also cover the legal costs to be incurred in the event of abduction or kidnapping of the business traveler, as this type of policy certainly does not conflict with Law 82/1991, which will be returned to in the next paragraph.
Now addressing the issue of the possibility that an Italian Entity stipulates an insurance policy specifically to deal with the risk of abduction / kidnapping (hypotheses that are not only common, but which in many geographical scenarios are of worrying relevance), it is clarified that, at the international level, an organic regulation on the payment of ransoms.
In fact, each State regulates the matter differently, to the point that some legal systems even provide for the existence of a hypothesis of crime in stipulating such a policy, as it is considered an incentive to crime, while in other legal systems it is allowed, albeit with some limitations.
The only exception, the discipline of which is shared by international legal systems, concerns the prohibition of payment of the ransom to terrorist organizations, which is expressly forbidden by the competent international organizations to dictate the global principles in the repression of terrorism, and therefore of its sources of financing. (eg OSCE, United Nations Security Council, Financial Action Task Force, Council of the European Union etc .....)
In our system, kidnapping is not insurable, as this type of contract is expressly prohibited by the Legislative Decree January 15, 1991 n. 8 "New rules on kidnapping for the purpose of extortion", converted, with amendments, into Law 15 March 1991, no. 82 which prohibits the "stipulation, also abroad, of insurance contracts having as their object the coverage of the risk, in the territory of the State, represented by the payment of the redemption price in the event of kidnapping for the purpose of extorsion, either own or of others". The same law also decreed the freezing of the assets of the person kidnapped, of the family and, at the discretion of the Judicial Authority, also of any other person who might be willing to pay the ransom.
In light of this legislation, the possible stipulation of a so-called "Kidnap and Ransom (K&R)" coverage, in Italy could never take effect and therefore could never have legal value, neither if the policy was stipulated with a national company nor if the policy was stipulated with a foreign company, if it had as its object, even if comprehensively with coverage of other risks, the insurance against the risk of kidnapping in the territory of the State.
More precisely, it would result in absolute nullity of the insurance contract, as it is contrary to a mandatory rule, which certainly is Law No. 82 indicated above, pursuant to the combined provisions of Articles 1343 and 1418 of the Italian Civil Code.
Nevertheless, the legislation in question, given its literal tenor, gives rise to various doubts and reflections, the first of which concerns the case in which the hypothesis of risk pertains only and exclusively to events that soccur beyond the territory of the Italian State and where the insurance company is foreign, without any representation or offices in the national territory, and when the insurance contract is governed by a foreign law.
In this case, the prohibition imposed by law no. 82 is still applicable? In the opinion of the writer, the answer is affirmative, given that any subject of Italian nationality residing in Italy is subject to the law and must particularly respect the rules of public order, being in the nature of "necessary application" rules, that are always applicable, even in cases where the relationship is governed by a foreign law or an international convention.
Unfortunately, the Government and the Parliament of the time omitted to expressly qualify the law as a law "of necessary application", considering with this expression, those laws considered inalienable by the national system due to their object or purpose, and whose application cannot be excluded, in order to guarantee the protection of imperative interests.
It should also be said that - as a rule - the state laws require that their own rules of "necessary application" prevail over the foreign rules applicable to the relationship, on the basis of their own private international law. These rules must therefore always be applied by the judge, even in cases where the dispute concerns matters governed by foreign law.
Relatively recently, a definition of the concept of "necessary application" has been provided for by the European Union Regulation so-called “Rome I” (EC Regulation No. 593/2008) on the law applicable to contractual obligations. More exactly, art. 9) of the aforementioned "Rome I" Regulation defines the "necessary application" rules as the "provisions whose compliance is considered crucial by a country for the protection of its public interests, such as its political, social or economic organization, at point to require its application to all situations that fall within their field of application, whatever the law applicable to the contract according to these Regulations ".
In addition, the aforementioned law relates to the field of criminal law as we know that the Italian citizen is required to respect the laws established by our State, as established by art. 7 of the Criminal Code, which states: "......... the citizen or foreigner who commits any of the following crimes in a foreign territory is punished according to Italian law ............ . ".
Given that the issue is controversial, and that the text of Law 82/1991 can be interpreted differently, in the opinion of the writer it is inadvisable for an Italian Entity to take out an insurance policy abroad with a foreign insurance company, for the reasons above exposed.
This fear is further confirmed also at in civil law, if one examines the Regulation of the European Union (the EC Regulation no. 864/2007, otherwise known as the "Rome II" Regulation) which governs the identification of the applicable law in the event of a conflict of laws relating to non-contractual obligations in civil and commercial matters.
We refer to art. 16) of the "Rome II" Regulation, which provides "do not affect the application of the provisions of the law of the forum that are of necessary application to the situation, whatever is the law applicable to the non-contractual obligation".
It is therefore evident that article 16) of the Regulation provides that the provisions of the law of the forum that are of necessary application always apply to the situation, independently and regardless of which law is applicable to the non-contractual obligation.
Certainly, the Italian Judicial Authority, also civil (and therefore not only the criminal one) would have jurisdiction, under the jurisdictional profile, to know about the eventuality underlying the kidnapping / abduction of an Italian citizen abroad, a transporter of an Italian Entity, despite the insurance contract has been concluded with a foreign insurance company and that such contract is subject to the law of a foreign country.
On the other hand, it is reasonable to consider fully valid the insurance policy contracted with a foreign insurance company by a company or located abroad, but wholly owned or controlled by an Italian entity, or by a branch, albeit with the limitations and reserves. referred to below, if they send their employees to another country, whether they are of Italian nationality or not, provided that, of course, they are not direct employees of the Italian parent company.
Specifically, let's examine the various hypotheses:
- in the case of a branch with full organizational autonomy and freedom of decision (although it is not legally autonomous), the stipulation of a "K&R" risk insurance policy with a foreign insurance company does not in any way violate Italian law and must therefore be considered fully legitimate. Obviously, if the branch lacks this autonomy, the stipulation of such a policy, imposed or "suggested" by the Italian entity, would be in violation of the aforementioned principles, and therefore would be illegal.
- in the case of a subsidiary, i.e., a company located abroad, controlled, or wholly owned by an Italian Entity, it is necessary to investigate its governance model and therefore the actual ability, on the part of the controlling entity, to influence or otherwise determine the operational decisions of the subsidiary (in other words, like the branch, it is a question of assessing the effective autonomy of the Administrative Body of the subsidiary).
Furthermore, it should be noted that, for their protection, foreign insurance companies usually provide, in the "K&R" risk insurance, a safeguard clause, in the event that the policy becomes the subject of sanctions or restrictions issued by a State or ordered by an 'International authority, under which the policy itself would become inoperative.
Among the most important countries in which “K&R” policies are considered legitimate are the United Kingdom and the United States; in these countries the insured risk can also be extended to other subjects who possibly accompany the worker, such as family members or cohabitants.
The insurance thus stipulated protects the employer company and the traveler from the losses caused by the seizure, covering not only the price paid as a ransom, but also a whole series of further damages such as, for example, the damage caused from the interruption of the activity, the damage to the image, the value of the things delivered as a ransom, the costs of consultants and / or negotiators hired in agreement with the insurers and the costs for the repatriation of hostages, etc ... ...
It is important to underline that, usually, "K&R" policies do not provide for operations in cases where the kidnapping / abduction has a terrorist matrix.
Bologna - Parma, June 15, 2020
Avv. Antonio de Capoa
– Studio Legale de Capoa e Associati – Bologna – firstname.lastname@example.org