In the negotiations taking place on contract renewal, it has turned out that the international insurance industry is no longer willing to agree on coverage for Russia and Belarus, and the options for coverage in Ukraine are also very limited.
Since it began, the Russian aggression against Ukraine has led to numerous economic changes, the scope of which still cannot be fully assessed. Keywords such as energy crisis, inflation, stagflation or even recession dominate international reporting, lectures and discussions. The insurance industry’s core business was affected by the consequences of the war from the start. In the beginning, there was the withdrawal of “Western” reinsurers from the Russian market, followed by the self-isolation of the Russian insurance market and the interruption of cross-border payment flows due to the declaration of martial law in Ukraine.
Both markets – Belarus plays a subordinate role here given the low level of international trade and investments – were thus isolated, but insurance cover was still available locally, albeit with significantly reduced capacities, especially in Ukraine. It was therefore reassuring that international insurance programs were honoured during their remaining contract period in 2022 and coverage was provided for all three states involved in the war via the Financial Interest Clause of the master contract.
Territorial exclusion is an issue during insurance contract renewal
In the negotiations taking place on contract renewal, it has turned out that the international insurance industry is no longer willing to agree on coverage for Russia and Belarus, and the options for coverage in Ukraine are also very limited. It is, of course, the first time in decades that a war involving a major power is taking place that is being opposed and indirectly fought by other major powers, and this is probably the reason why insurers have not only focused on the exclusions of coverage briefly described below in connection with war and the imposition of sanctions but introduce a territorial exclusion for Russia, Belarus and Ukraine. This attitude is unique and must therefore be examined critically at this point. The exclusion clause, as also acknowledged by reinsurers, represents the last link in a three-part exclusion chain, a simple solution that avoids any discussion concerning a risk located in one of the countries.
Traditional: the War Exclusion Clause
Let us now take a closer look at this three-part set of exclusions.
The traditional precaution of the insurer against having to pay claims which would by frequency and amount destroy any insurance portfolio and might lead to a serious threat to the continued existence of the insurance company is the war exclusion anchored in the General Conditions, above all for property and liability insurance, although differently defined. In fire insurance (including business interruption!), the clause says that “damage caused by the direct or indirect effect of acts of war … including all acts of violence by states …” as well as “all military or official measures connected with the acts mentioned …” are not covered.
According to a newer definition, liability insurance does not provide insurance cover “for damage caused by acts of violence by states or against states and their bodies, acts of violence by political and terrorist organizations, …”. Both definitions are therefore very broad and general and will be checked by the insurer in the event of a claim in Ukraine and, if necessary, applied to decline payment of a claim. However, the burden of proof lies with the insurer – despite the contrary, contestable definition in property insurance that can sometimes be found. In any case, the insurer is protected against claims for war damage.
Sanctions prohibit insurance in certain areas
After the war broke out, the EU as well as the US and UK, responded with economic sanctions against Russia, specially designated Russian citizens and entities. The eight packages of sanctions of the EU now in existence are related to export and import restrictions for precisely named goods recorded in lists. Compliance with the sanctions is binding for legal and natural persons within the EU, disregarding them or circumventing the EU is a punishable offence. It follows that no insurance cover can be granted for sanctioned persons, organizations and goods, including their production, trade with them and transport.
In recent years – long before the war in Ukraine – insurers have therefore formulated sanctions clauses that exclude coverage for activities and goods subject to sanctions. The insurers’ exposure is thus further reduced since some sectors and products are now subject to sanctions for Russia. However, it must also be emphasized that the EU has expressly stated that there must be no product sanctions for food, sanitary articles, medicines and other products of humanitarian need. Although sanctions intend to affect the Russian economy, they should not contribute to punishing innocent citizens. It is therefore expected in the dialogue between insurance customers and insurers that the sanction clause will be checked for its specific applicability in individual cases when the insurance contract is concluded or in the case of a claim.
Territorial exclusion reduces the value of the International program
These two clauses, which are justified and allow an examination of the individual case and represent at least some protection of the insured if a claim is not due to war or in connection with sanctions, are now accompanied by territorial exclusion as a third clause. Its application means that the insurer no longer has to deal in any way with risks, contracts or claims in any of the countries concerned. It is therefore an a priori refusal of cover, which has only seldom been seen in this form up to now. It has not even been applied to the famous “rogue states”.
Insurance lawyers will object here that there is no obligation to contract in industrial insurance and that the insurance company can refuse to assume a risk at any time. The legal provisions on the increase in risk even suggest that an insurer does not have to assume a risk that it considers to be high. This is correct, but for reasons of fairness alone, an insurer who is willing to insure known risks worldwide as part of an international insurance program should not start excluding individual countries. If such an example catches on, it’s not far to the erosion of the insurance program, when other countries that are problematic for whatever reason, like China, Iran and whoever, are put on the exclusion list.
Another often-heard argument for this exclusion is compliance: it is not appropriate to continue to support the Russian economy and this also applies to insurance and reinsurance. As with other measures, however, the one who ultimately suffers is not the warring state of Russia, but the policyholder who has gone to the countries of Eastern Europe with his activities. He is now told that he can insure his risks locally, which is a very weak alternative given the limited capacities in Russia or the scarcity of insurance sums in Ukraine. Comparable to accepting a high degree of underinsurance.
Individual solutions required
Nevertheless, we are confident that in individual cases it will be possible to obtain coverage in the country of the master treaty when it comes to risks with a humanitarian context, when the risk locations are not directly in war-affected areas of Ukraine, when the volume of insurance in one of the states concerned is small compared to the rest of the world, when transports between third countries involving one of the three states have to be insured, etc. It is worthwhile to negotiate with the insurance industry on an individual basis, at least to arrive at a compromise solution, such as coverage with a review clause in the event of a clear escalation of the war.
The article is written by Andreas Krebs.
Paul Spittau
Head of Group Carrier Relations & Insurance Mediation
T +43 664 537 17 42
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