The South Carolina Property and Casualty Insurance Guaranty Association (the Guaranty) is an unincorporated nonprofit entity created pursuant to the South Carolina Property and Casualty Insurance Guaranty Association Act (the Act). The purpose of the Guaranty is to provide a degree of protection to insureds whose carriers become insolvent. Upon an insurer’s insolvency, the Guaranty assumes the position of the insurer to the extent of the insurer’s obligation relative to covered claim; its liability is derived from that of the insolvent carrier’s liability to the insured.

Orexim Trading Limited v (1) Mahavir Port and Terminal Private Limited ("MPT") (2) Singmalloyd Marine (S) PTE Limited ("Singmalloyd") (3) Zen Shipping and Ports India Private Limited ("Zen") [2018]

In a decision that will be of particular interest to creditors and insolvency practitioners contemplating section 423 Insolvency Act claims against defendants based outside the EU, the Court of Appeal has refused a claimant permission to serve a claim out of the jurisdiction.

In Ziggurat (Claremont Place) LLP v HCC International Insurance Company plc [2017] EWHC 3286 (TCC) the court considered a claim under an amended ABI Model Form Guarantee Bond.

As a result of a bespoke clause the Contractor's insolvency was enough to trigger recovery under the Bond, but if a breach of contract was required, the Contractor was in breach of the contract by failing to pay the amount due to the Employer following insolvency.

A recent decision of the Privy Council dismissing the claim of liquidators of an insolvent hedge fund to claw back redemption payments made to an investor leaves lingering uncertainties for investors generally.

Claw backs post 2008 crisis

The Pugachev tale

October 2017

INSURE

InSure

This month's roundup of developments affecting the insurance industry sees ECON calling on the European Commission to postpone the application date of the IDD, EIOPA issuing final guidelines on complex insurance-based investment products under the IDD and the European Commission releasing a report on consumers' decision-making process in insurance services.

General Update

It is now clear that the Pensions Regulator will take a much tougher approach in future towards employers and scheme funding. The new approach comes after a select committee of MPs looking into the BHS collapse criticised the Regulator for being reactive, slow-moving and reluctant to exercise its powers.

The two key areas where we expect the Regulator to be more aggressive are scheme funding and "moral hazard" powers.

BANKING

ECON votes to adopt draft report on proposed BRRD Insolvency Hierarchy Directive

From the Bankruptcy Court for the District of South Carolina :

In McCall v. Anderson Brothers Bank (In re McCall), Adv. Pro. No. 16-80008-jw (Bankr. D.S.C. 2016), the Honorable John E. Waites held that a creditor did not willfully violate the automatic stay under the particular facts of the case where the creditor initially refused to return a vehicle to the Debtor after she filed a Chapter 13 case and demanded the vehicle’s return.

The Technology and Construction Court in England has refused pre-action disclosure of the insurance policy of a currently solvent insured, notwithstanding that a successful claim would have resulted in the insolvency of the insured.

Factual background