Under German law, company directors have a statutory duty to file for insolvency once the company has become insolvent or over-indebted. Company directors can be held personally liable for any payments they make after that point of time unless they prove that they exercised reasonable care, skill and diligence. After the German Federal Court of Justice (Bundesgerichtshof) clarified that standard terms and conditions of German D&O insurance contracts cover this directors’ liability, many D&O insurers have tried to find new ways to avoid their coverage.

This half-yearly update summarises significant insurance coverage cases in the English courts in the second half of 2022 concerning Covid-19 business interruption insurance, jurisdiction and rights against insurers of insolvent companies.

Significant Insurance Coverage Cases in H2 2022

Covid-19 BI Cases:

From investors to regulators, FTX Trading Ltd (FTX) filing for bankruptcy was unexpected by all. A catalyst for litigation and regulation over the years to come, this collapse will serve as a warning, particularly to cryptocurrency insurers.

What happened?

Last week HM Treasury published its much anticipated consultation paper on introducing a dedicated Insurer Resolution Regime (IRR) in the UK, which would implement key international standards.

１  はじめに

破産手続の開始後も，破産者が自由財産から保険料支払    を継続し，契約更新を行ったとしても，その後に発生した共 済事故に係る共済金請求権は破産財団に帰属する（破産者 には帰属しない）と判断した東京高等裁判所の判決を紹介し  ます。

２ 事案概要

破産者は，破産手続開始決定前に自己所有建物等を目的 とする火災共済契約（「本件共済契約」）を締結し，破産手続 開始後も共済掛金の支払を継続し，本件共済契約は自動更 新されていました。破産手続開始決定・自動更新後，保険事故（「本件火災」）が発生しました。共済連合会は，債権者不確知を供託原因として，本件火災に係る共済金を供託しました

（「本件供託」）。破産管財人は，本件火災に係る共済金請求 権（「本件共済金請求権」）が破産財団に帰属するとして，本件供託に係る供託金請求権を破産管財人が有することの確認を求めました。他方，破産者は，本件共済金請求権は破産者の新得財産であるとして，共済連合会に対し共済金の支払を求めました。時系列は以下のとおりです。

At a time when, globally, insured businesses are under severe financial strain, the availability and extent of their insurance assets take on a new significance. It is significant not just for troubled businesses and their insurers, but also for third parties with potential or actual claims against those businesses.

In this chapter of our Annual Insurance Review 2023, we look at the main developments in 2022 and expected issues in 2023 for restructuring and insolvency.

Key developments in 2022

Corporate insolvencies have been rising sharply in 2022 albeit against the backdrop of record low insolvency filings during the pandemic. By June, they had reached their highest quarterly level since 2009 and the depths of the global financial crisis.

Chapter 11 bankruptcy as a means for resolving mass tort claims

The recent implosion of crypto firm FTX and its affiliates provides a case study for potential crypto exposure under traditional insurance policies. The FTX debacle is described herein is an introduction to a series of four articles on the potential liability exposure and coverage: Silent Crypto for D&O and Corporate Liability Insurance (Part I), Silent Crypto Exposure for Accountants (Part II), Silent Crypto Exposure for Lawyers (Part III), and Crime and Custody Coverage for Crypto Assets (Part IV).

2022 has been a challenging year. In addition to the continuing impact of COVID-19 and the recent relaxation measures in China, the war in Ukraine has also brought impacts on society, politics and businesses.