Definitive global law guides offering comparative analysis from top-ranked lawyers
CHAMBERS GLOBAL PRACTICE GUIDES
Insurance & Reinsurance 2026
Definitive global law guides offering comparative analysis from top-ranked lawyers
Contributing Editor Simon Cooper DWF
Global Practice Guides
Insurance & Reinsurance Contributing Editor Simon Cooper DWF
2026
Chambers Global Practice Guides For more than 20 years, Chambers Global Guides have ranked lawyers and law firms across the world. Chambers now offer clients a new series of Global Practice Guides, which contain practical guidance on doing legal business in key jurisdictions. We use our knowledge of the world’s best lawyers to select leading law firms in each jurisdiction to write the ‘Law & Practice’ sections. In addition, the ‘Trends & Developments’ sections analyse trends and developments in local legal markets. Disclaimer: The information in this guide is provided for general reference only, not as specific legal advice. Views expressed by the authors are not necessarily the views of the law firms in which they practise. For specific legal advice, a lawyer should be consulted. Content Management Director Claire Oxborrow Content Manager Jonathan Mendelowitz Senior Content Reviewers Sally McGonigal, Ethne Withers, Deborah Sinclair, Stephen Dinkeldein, Vivienne Button and Sean Marshall Content Reviewers Lawrence Garrett, Marianne Page, Heather Palomino, Alison Moore, Adrian Ciechacki and Michael Irvine Content Coordination Manager Nancy Tsang Senior Content Coordinators Carla Cagnina and Delicia Tasinda Content Coordinator Joanna Chivers Head of Production Jasper John Production Coordinator Genevieve Sibayan
Published by Chambers and Partners 165 Fleet Street London EC4A 2AE Tel +44 20 7606 8844 Fax +44 20 7831 5662 Web www.chambers.com
Copyright © 2026 Chambers and Partners
Contents
INTRODUCTION Contributed by Simon Cooper, DWF p.5
FRANCE Trends and Developments p.168 Contributed by Jeantet HONG KONG SAR, CHINA Law and Practice p.177 Contributed by Debevoise & Plimpton Trends and Developments p.190 Contributed by Debevoise & Plimpton
AUSTRALIA Trends and Developments p.9 Contributed by Moray & Agnew
AUSTRIA Law and Practice p.15 Contributed by BLS Rechtsanwälte GmbH
INDIA Law and Practice p.195 Contributed by Tuli & Co Trends and Developments p.215 Contributed by Shardul Amarchand Mangaldas & Co
BERMUDA Law and Practice p.28 Contributed by Appleby
BRAZIL Law and Practice p.46 Contributed by Junqueira & Gelbecke Advogados
IRELAND Law and Practice p.221 Contributed by Matheson LLP Trends and Developments p.242 Contributed by Matheson LLP
Trends and Developments p.60 Contributed by Machado Meyer
CHILE Law and Practice p.66 Contributed by JJR Abogados Trends and Developments p.78 Contributed by Silva & Parmar Abogados
ITALY Law and Practice p.250 Contributed by FIVERS Studio Legale e Tributario Trends and Developments p.268 Contributed by FIVERS Studio Legale e Tributario
CHINA Law and Practice p.85 Contributed by Jincheng Tongda & Neal Law Firm
JAPAN Law and Practice p.271
Trends and Developments p.100 Contributed by Kangda Law Firm
Contributed by Chuo Sogo LPC Trends and Developments p.283 Contributed by Mori Hamada
COLOMBIA Law and Practice p.106 Contributed by Rebeca Herrera Abogados Trends and Developments p.125 Contributed by Rebeca Herrera Abogados COTE D’IVOIRE Law and Practice p.130 Contributed by Ofori Conseils Africa LLP Trends and Developments p.141 Contributed by Ofori Conseils Africa LLP CZECH REPUBLIC Law and Practice p.146 Contributed by JŠK, advokátní kancelář, s.r.o. Trends and Developments p.162 Contributed by JŠK, advokátní kancelář, s.r.o.
LIECHTENSTEIN Law and Practice p.289 Contributed by Ospelt & Partner Attorneys at Law Ltd Trends and Developments p.302 Contributed by Ospelt & Partner Attorneys at Law Ltd
MACAU SAR, CHINA Law and Practice p.309 Contributed by MdME Trends and Developments p.325 Contributed by MdME
MEXICO Law and Practice p.330 Contributed by De la Garza & Acosta Abogados, S.C.
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Contents
UAE Law and Practice p.485 Contributed by BLK Partners
Trends and Developments p.348 Contributed by De la Garza & Acosta Abogados, S.C.
NEW ZEALAND Law and Practice p.354 Contributed by Duncan Cotterill Trends and Developments p.368 Contributed by McElroys PORTUGAL Law and Practice p.373 Contributed by Broseta Abogados, SLP Trends and Developments p.391 Contributed by SPS-Barrilero SINGAPORE Law and Practice p.399 Contributed by Rajah & Tann Singapore LLP Trends and Developments p.417 Contributed by RPC Premier Law SOUTH KOREA Trends and Developments p.423 Contributed by Choi & Kim SWEDEN Law and Practice p.427 Contributed by Advokatfirman Vinge KB Trends and Developments p.441 Contributed by Advokatfirman Vinge KB
UK Law and Practice p.507 Contributed by Debevoise & Plimpton LLP USA – CALIFORNIA Trends and Developments p.526 Contributed by Buchalter LLP USA – FLORIDA Trends and Developments p.532 Contributed by Cozen O’Connor USA – ILLINOIS Trends and Developments p.539 Contributed by ArentFox Schiff LLP
USA – MISSOURI Trends and Developments p.547 Contributed by Sandberg, Phoenix & von Gontard, P.C. USA – NEW JERSEY Trends and Developments p.551 Contributed by Mound Cotton Wollan & Greengrass USA – NEW YORK Trends and Developments p.558 Contributed by Hoguet Newman Regal & Kenney, LLP USA – TEXAS Trends and Developments p.564 Contributed by Tollefson Bradley Mitchell & Melendi, LLP
SWITZERLAND Law and Practice p.446 Contributed by Bär & Karrer
Trends and Developments p.464 Contributed by Prager Dreifuss AG
TAIWAN Law and Practice p.469 Contributed by Lee and Li
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INTRODUCTION
Contributed by: Simon Cooper, DWF
DWF is a leading global provider of integrated legal and business services, operating across eight key sectors in over 30 global locations with over 4,000 people. The firm combines in-depth legal and regula- tory knowledge with expert commercial services to ensure swift reaction to clients’ needs, engaging its global resources and local specialists to advise on areas including coverage, policy wordings and com- plex cross-jurisdictional claims management across
a wide range of emerging and traditional lines of the insurance business. DWF’s specialist corporate, commercial and regulatory insurance lawyers provide support with a diverse range of legal issues, including corporate restructuring, capital raisings, M&A, cyber- security, compliance, dispute resolution and tax, all supported by extensive sector knowledge and expe- rience.
Contributing Editor
Simon Cooper is the contributing editor of the Chambers Insurance & Reinsurance Global Practice Guide and an independent consultant and arbitrator with more than 35 years’ legal experience in the insurance
sector, including as a partner at leading law firms in London. His practice has encompassed professional indemnity, property, cyber and reinsurance. Simon is experienced in in all forms of dispute resolution, working with lawyers in many jurisdiction and co-ordinating multi-jurisdictional projects. He has been involved in several landmark cases and advises on the development of new products for insurers; currently the Lloyd’s Members Ombudsman, he has also been instructed in relation to several recent modernisation projects in the London insurance market.
DWF 20 Fenchurch Street London EC3M 3AG UK Tel: +44 333 320 4440 Email: DWFEnquiries@dwf.law Web: www.dwfgroup.com
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INTRODUCTION Contributed by: Simon Cooper, DWF
A Year Dominated by Geopolitical Conflict, Climate Change and New Technology The purpose of insurance is to manage risk, but risk evolves constantly. In the last few years, the speed of that evolution has been particularly rapid and has raised many new challenges. How insurers and the law governing insurance respond to these challeng- es will, inevitably, vary from country to country. This guide not only explains the relevant law in the world’s leading jurisdictions, but also provides the insights of leading lawyers from around the world as to the future developments of risk and law in their countries. One of the major themes of 2025, and one that will continue into 2026 and beyond, was climate change. The 30th Conference of the Parties (COP30) sum- mit took place in Brazil in November 2025, and its importance for the insurance industry was highlighted by the fact that 2025 was one of the costliest years since 1970 in terms of natural catastrophe losses. Insured losses from natural catastrophes during the year are projected to reach approximately USD137 billion (according to preliminary results from the Swiss Re Institute for December 2024), stemming from a series of catastrophes ranging from wild fires to winter storms, flooding and hailstorms. This estimate means that 2025 will be the sixth consecutive year in which insured natural catastrophe losses have exceeded USD100 billion. This, and the fact that 2025 has been one of the hottest years on record, has only increased the already-widespread concern that climate change will cause a long-term increase in the number and severity of natural disasters. In addition, climate change is likely to challenge previ- ous assumptions about the nature of the risk posed by natural disasters; for example, in 2025 the United States experienced record wild fire losses outside the usual wild fire period, resulting in the highest fire loss- es in the region ever. From a legal perspective, these developments will raise issues of policy construction, for instance in relation to aggregation clauses and the obligation on reinsurers to follow the claims decisions of the underlying insurer. From a regulatory perspec- tive, one may also see steps by governments around the world to compel insurers to provide cover for an increasing range of catastrophic risks. An example of this might be Flood Re in the UK.
The year 2025 was also one of geopolitical instabil- ity, with the continuing wars in Ukraine and the Mid- dle East. As well as the horrendous human suffering caused by these conflicts, this instability raises dif- ficult issues for the insurance industry. For example, one of the features of the Western response to Rus- sia’s aggression has been the imposition of sanctions on Russia and its allies, as well as on individuals and organisations associated with Putin’s regime. These sanctions, and the retaliatory sanctions imposed by Russia, create a difficult legal and regulatory environ- ment for insurers, which is further complicated by the different approach to sanction enforcement in differ- ent jurisdictions. In addition to sanctions, the recent instability has emphasised the role of war risk insurance and the scope of the cover that it provides. This has been an issue not only in Ukraine but also with respect to the attacks on shipping in the Red Sea apparently prompted by the conflict in Israel and Gaza. It is unclear whether these attacks are state-backed and how they will be characterised in different jurisdic- tions for insurance purposes. Indeed, such has been the pressure on this class of business that the main marine insurers have limited the geographical scope of war risk cover in some disputed areas. Furthermore, it has only been possible to write war risk cover in some areas with government backing. The hybrid nature of modern warfare, including as it does aspects such as cyberconflict as well as physical conflict, brings into question many definitions of “war” in insurance covers. Most cyber policies exclude cov- erage for war and related risk, but defining and proving “war” in the context of a cyber-attack often challenges existing legal definitions, and it is important for insur- ance buyers as well as insurers to know how different jurisdictions approach this and related issues. Although the human cost of the COVID-19 pandemic has receded, the insurance and legal implications of the pandemic continue to be tested. Inevitably, this has led to extensive litigation in several jurisdictions, with the UK and the USA being just two examples. Consequently, courts around the world are revisiting previously accepted approaches to concepts such as causation and aggregation, as well as the proper con-
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INTRODUCTION Contributed by: Simon Cooper, DWF
struction of key policy terms in reinsurance as well as insurance contracts. Clearly, the courts’ conclusions on these issues will vary from jurisdiction to jurisdic- tion, and this guide provides an invaluable overview of the approaches adopted in key jurisdictions around the world. Vulnerability to cyber-attack is an increasing area of exposure for insureds around the world, with cyber criminals leveraging AI tools in increasingly sophis- ticated attacks. Insurance coverage for cyber risk is still relatively untested through the courts, and there remains significant uncertainty as to the way in which the courts of different jurisdictions will view this evolv- ing area. Again, this guide provides vital insights into the approach likely to be adopted in key areas. Modernising the global insurance industry In 2025, the drive to modernise the world’s insurance markets continued apace, and that trend will continue in 2026. The changes being introduced are in many cases fundamental and bring with them a range of legal and regulatory challenges for insurers, brokers and regulators alike. One aspect of the drive for modernisation is the con- tinuing search by established insurers for new mar- kets and territories in which to expand. The desire for expansion is being assisted by regulatory adjust- ments in some jurisdictions that are increasingly open to external investment, but it is also challenged by the growing assertiveness of insurers domiciled in emerging markets. It is imperative, therefore, that insurers, those in related professions and their advis- ers all understand the different legal and regulatory requirements for operating in different jurisdictions. This guide, written by experts from around the world, seeks to provide a practical overview of these require- ments in the key international jurisdictions. Insurtech The growth of insurtech and the wider use of artifi- cial intelligence (AI) presents both opportunities and challenges to insurers and brokers. Insurers are using insurtech to create more personalised and better-tar- geted insurance products through the development of sophisticated algorithms to analyse detailed source data and broader market data, to produce a highly
specific risk profile and price. Similar initiatives are being developed to speed up the handling of claims while increasing insurers’ ability to detect fraud and analyse the cost and benefit of claims disputes. At present, these advances are limited principally to personal lines insurance and SME business, but it is expected that they will be applied to larger commer- cial risks in the coming years. The increasing use of insurtech, and AI more gen- erally, brings with it significant legal and regulatory challenges, and the responses are likely to vary from jurisdiction to jurisdiction. For example, insurtech involves managing huge quantities of personal data, which is often of a sensitive nature. The EU’s General Data Protection Regulation (GDPR) has created a new legal regime within which insurers have to manage this data, with the risk of incurring very significant financial penalties for non-compliance. Importantly, although this is an EU regulation, it applies to insurers anywhere in the world that hold information about EU citizens, so it has potential ramifications for insurers and their advisers, wherever they may be. Jurisdictions outside Europe, of course, have different approaches to data protection, which this guide seeks to highlight. One of the key objectives of insurtech is to strengthen the connectivity between insurers and their clients. This is achieved through more personalised underwrit- ing and the adoption of different distribution meth- ods, including social media and internet apps. Many innovative new products rely on source data gath- ered through wearable technology and the internet of things (IoT). These communications, and information from things like wearable technology, are subject to the EU’s ePrivacy Directive, which is currently being updated in an effort to keep pace with the rapid devel- opments in this field. All of these technological advances are challenging existing legal assumptions, which are often based on laws developed for an entirely different commercial world. How the laws of different jurisdictions adjust to these challenges is one of the issues this guide seeks to address.
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INTRODUCTION Contributed by: Simon Cooper, DWF
Artificial intelligence As well as the regulatory issues associated with the growth of insurtech, the adoption of AI technology by insurance buyers raises new legal challenges for insurers, including the question of where liability will lie if a piece of AI technology dependent on machine learning causes injury or breaks the law. Similar issues will arise in relation to the programming of autono- mous ships and vehicles and the choices they may have to make when faced with the likelihood of colli- sion. The answer to these questions is likely to differ between jurisdictions, so it will be important for insur- ers to understand local laws before accepting busi- ness that exposes them to risks of this nature. Political tensions It is likely that 2026 will see continuing political insta- bility and tensions between some of the world’s lead- ing economies. The insurance industry is not immune to the commercial and regulatory consequences of such conflict. These political tensions have also been expressed in actual or alleged cyber-attacks and other acts of sabotage by one country or its proxy against another. Such attacks can lead to very significant insured losses, both in targeted countries and in other countries that experience “collateral damage”. Although the Brexit transition period terminated on 1 January 2021, a comprehensive replacement for the previous passporting arrangements has not yet been agreed between the UK and the remaining EU members. This is one of the many regulatory and legal uncertainties that will continue to hinder UK and Euro- pean insurers in 2026. Until the post-Brexit regulatory framework has been agreed, bilateral arrangements
between the UK and individual EU member states are of an ad hoc nature, and there will inevitably be uncer- tainty over the ability of UK insurers to write European business (and vice versa) and how that business may be written – for example, with respect to the regulation of underwriting agents. The emergence of new risks At the same time, new risks are emerging, and con- cern continues about the potential for a “new asbes- tos” – be that legalised cannabis and medical mari- juana, opioids, microplastics, nanotechnology or “forever chemicals”. The legal context for the handling of insurance claims and coverage disputes in different jurisdictions will play a large part in determining the impact of any of these risks, if they do emerge. Despite the uncertainty and risk the industry faces over the coming years, there is no shortage of invest- ment, with private equity houses continuing to show an interest. The industry saw continuing consolidation among insurers and brokers in 2025. In addition, mon- ey from outside the industry continues to be invested in new insurance vehicles, such as insurance-linked securities (ILS). Regulators in several jurisdictions are opening their markets to the underwriting of these products, but it remains to be seen whether they can be sufficiently flexible to wrest a meaningful share of the market from Bermuda. Overall, 2026 is expected to see the continuation and speeding up of the modernisation process across the insurance industry, together with a slower, but none- theless significant, shift towards new markets and new ways of doing business.
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AUSTRALIA
Australia
Trends and Developments Contributed by: Michael Polorotoff, Jeremy Peck, Emily Daffy and Scott Cowell Moray & Agnew Moray & Agnew is a leading national law firm of over 800 people, including 120 partners. The firm serves domestic and international clients from offices in Sydney, Melbourne, Brisbane, Canberra, Newcas- tle, Perth and Cairns. Moray & Agnew represents all the major Australian and international insurance par- ticipants, including local carriers, Lloyd’s of London syndicates, brokers, reinsurers, claims managers and third-party administrators, all tiers of Australian gov-
Sydney
Tasmania
ernment and insureds. The firm’s specialty is acting in defence of third-party claims, pursuing recoveries and advising on complex coverage issues in a cost- effective and pragmatic manner. Built on a solid his- tory in insurance law, client demand has guided the firm’s growth into commercial litigation and dispute resolution, construction and projects, corporate and commercial, government, property and development, and workplace legal services.
Authors
Michael Polorotoff is a highly experienced and accomplished insurance law practitioner. With over two decades of experience in insurance, he specialises in defending professionals and directors across a
Jeremy Peck is a highly skilled insurance law practitioner and has experience working in both in-house and private practice roles. With over 20 years’ insurance law experience, Jeremy acts for a wide range of
broad range of industry sectors and advising insurer clients on complex coverage issues, especially in the D&O, PI and FI areas. He is highly regarded for his tenacious, yet considered and strategic, approach in advancing his clients’ interests. Michael has been recognised by his peers as being a leading insurance coverage and defence lawyer in prominent legal directories. He is also a committee member of the Australian Insurance Law Association (NSW chapter) which aims to promote and facilitate the education of the insurance industry.
insured professionals, with a particular focus on financial services professionals, construction professionals and directors and officers. Jeremy also has a close interest in the progression of the industry and seeks to contribute to the development of industry members through his participation on the Victorian committee of the Australian Professional Indemnity Group. Prior to joining Moray & Agnew, Jeremy spent several years working in London and maintains strong connections with his London market network.
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AUSTRALIA Trends and Developments Contributed by: Michael Polorotoff, Jeremy Peck, Emily Daffy and Scott Cowell, Moray & Agnew
Emily Daffy is one of Victoria’s leading litigators, with specialised skills in personal injury and property damage. Emily has worked in casualty claims for over 15 years and is a LIV accredited specialist in
Scott Cowell specialises in public and products liability, professional indemnity, property, institutional abuse and dust/toxic tort matters. His practical and expert advice is highly sought after in his clients’ most
personal injury. She has significant experience in the successful defence of public liability claims, VWA recoveries and special risk matters. Emily also has expertise in product liability and has conducted numerous product recalls in Australia and New Zealand. She is well versed in all insurance matters from insurers’ business focus to client management, claims management (indemnity and defence) and claim costs. Emily is a member of Women in Insurance and the Law Institute of Victoria.
complicated cases, and he is renowned for achieving prompt and cost-effective outcomes for his clients, which cater to the full spectrum of their risks (including media and reputational). Scott’s clients include major domestic and international insurers, loss adjusters, underwriters, local and state governments, and large self-insured corporates. He has handled claims in every Australian jurisdiction, as well as several Asia-Pacific nations.
Moray & Agnew Level 27 477 Pitt Street Sydney NSW 2000 Australia Tel: +61 2 9232 2255 Fax: +61 2 9232 1004 Email: info@moray.com.au Web: www.moray.com.au
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AUSTRALIA Trends and Developments Contributed by: Michael Polorotoff, Jeremy Peck, Emily Daffy and Scott Cowell, Moray & Agnew
Introduction Australia is a federation of states and territories bound together by the Australian Constitution. It has an over- arching federal system of government with its own courts, although each state and territory within the federation has its own system of government and courts. Like most countries that formed part of the British Empire, Australia’s system of government is modelled on the Westminster system, and an independent judi- ciary is a central hallmark. Australia’s legal system was also inherited from English common law. Insurance and reinsurance law are no different, albeit there have been statutory and regulatory modifica- tions, including the enactment of the Insurance Con- tracts Act 1984 (Cth) (ICA) and the Corporations Act 2001 (Cth). The ICA aims to strike a fair balance between the interests of insureds, insurers and other members of the public, and to ensure that provisions in insurance contracts and the practices of insurers in relation to such contracts operate fairly. The Australian insurance industry continues to grap- ple with many evolving challenges and opportunities, including the following. • The bedding down of another soft market, with increased competition and capacity forcing down- ward pressure on rates and more favourable terms for insureds. • The sustained enforcement focus by the corporate regulator (Australian Securities and Investments Commission; ASIC) and the prudential regulator (Australian Prudential Regulation Authority; APRA) in relation to misconduct and governance issues. Particularly, ASIC remains very active in pursuing its enforcement priorities. It has unveiled private credit practices, financial reporting misconduct, insurance complaints and claims handling, and misleading pricing as key enforcement outcomes for 2026. Of note, the blast zone from the Shield and First Guardian debacle continues to expand. Further, as the baby boomer generation transitions into retirement, there is increased scrutiny of the superannuation industry to ensure that superan-
nuants’ benefits and account balances are not adversely impaired. • Technological developments (specifically, the advent of artificial intelligence) causing disruption and uncertainty in many parts of the Australian economy, which in turn presents new opportunities and challenges for the insurance industry, espe- cially for high-volume/low-value claims. • The High Court of Australia reviewing the law, which affects or has the potential to affect the casualty line of business, especially in the areas of non-delegable duties of care and personal injury loss damages. Historical abuse claims remain a fertile area for claims activity. This article provides a high-level snapshot of some key issues and the likely trends and developments facing industry participants and various lines of busi- ness. Directors and Officers Side C At the risk of tempting fate, the Side C space in Aus- tralia is somewhat of a “good news” story for publicly listed companies and their insurers. Despite findings of contravening conduct in some cases, at the time of writing this article, no Australian shareholder class action has yet resulted in an award of damages for the investors. This has arguably translated into a cultural shift in mindsets, with: • insureds and their defence counsel being prepared to assume the litigation risk and run these cases to judgment – however, some of these cases are on appeal, including the Worley litigation and the CBA/ Zonia & Baron decision; • insurers being willing to offer Side C cover, albeit with significantly higher retentions absorbing the significant defence costs expenditure incurred in defending securities class actions – experience suggests that the defence costs spend will con- tinue to increase; and • plaintiff law firms and litigation funders being less willing to prosecute and finance securities class actions given, in particular, the serious difficulties faced by plaintiffs in establishing causation and loss with a cogent evidentiary footing. Of note, the rate of new Side C filings is not accelerating, with
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AUSTRALIA Trends and Developments Contributed by: Michael Polorotoff, Jeremy Peck, Emily Daffy and Scott Cowell, Moray & Agnew
only a handful of new Side C claims being filed in 2025, and this trend should continue in 2026. However, these developments are likely to cause plaintiff law firms and litigation funders to pursue representative actions in other fields. Side A/B Directors and officers remain under scrutiny from ASIC given the public’s expectation that boards and senior executives will be held to account for misconduct and governance failures of companies. There is no question that ASIC’s enforcement priorities are translating into more regulatory investigations and, therefore, more inquiry costs being incurred by D&Os. Of note, cybersecurity and resilience is a core focus of ASIC, and it is only a question of when (and not if) ASIC brings a prosecution against individuals for fail- ing to ensure that their organisations have adequate cybersecurity measures in place, in breach of their directors’ duties. Other subject matter risks such as financial reporting, insider trading and greenwashing will remain on ASIC’s radar. Insolvency risk remains a pressure point for many companies and their boards/executives, with the Aus- tralian economy at a crossroads due to stubbornly high inflation and patchy economic growth. ASIC’s statistical analysis indicates that the construction and hospitality sectors have sustained the most insolven- cies in recent years, following the end of the govern- ment pandemic-related relief. Relatedly, the Australian Taxation Office is using its powers to recover compa- nies’ unpaid debts from directors by issuing director penalty notices. Professional Indemnity Throughout 2024, ASIC commenced several inves- tigations into the operation of two investment funds: Shield Master Trust and First Guardian. These investi- gations exposed the most significant scandal in finan- cial services since the global financial crisis (GFC). The ensuing collapse of these funds triggered losses estimated at AUD1.2 billion and has given rise to pros- ecutions all along the chain of involvement, including the funds themselves, lead generators, financial advi- sors and their licensees, ratings agencies, auditors and the superannuation trustees responsible for offer-
ing these funds on their investment platforms. Many of these proceedings will be the first time ASIC has taken such action, and most will set precedents for the scope of liability for providers of financial services, with obvious implications for their insurers. In addition to the Shield and First Guardian investi- gations, ASIC conducted a review into private credit markets, with a particular focus on funds in the market targeting retail investors and wholesale investors using the “sophisticated investor” exemption. Real estate- focused funds are highlighted for specific scrutiny as ASIC estimates they constitute approximately half of Australia’s private credit market. Conflicts of interest, fee disclosure, valuation and inconsistent terminol- ogy have been identified as operational concerns. Around the time of the release of the report, ASIC acted to freeze a number of credit funds for compli- ance breaches, the majority of which have now been rectified. Further policy response is expected immi- nently. As a result of these developments, at least one super- annuation trustee has reduced the funds on offer on its platform by almost half. It is expected that other trustees will be conducting similar reviews of their offerings. It remains to be seen whether these actions create liquidity concerns for the affected fund manag- ers. All of this creates an epicentre of claim activity around any professionals with a connection to the financial services industry. This has coincided with a sub- stantial increase in professional indemnity insurance capacity over the last 12–24 months. It is anticipated that this sector will remain a significant hot spot for professional indemnity claims activity for the foresee- able future. The construction industry remains a significant area of concern. Insolvency is still prevalent, as the long- standing effects of inflation on fixed price construction contracts continue to cause trouble. Anticipated latent problems arising from these unprofitable projects are a cause for concern. Building defects claims continue to be expensive to defend and tend to implicate most construction professionals involved with the underly- ing projects.
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AUSTRALIA Trends and Developments Contributed by: Michael Polorotoff, Jeremy Peck, Emily Daffy and Scott Cowell, Moray & Agnew
Otherwise, in Allianz Australia Insurance Ltd v Unit - ing Church in Australia Property Trust (NSW) [2025] FCAFC 8, the majority of the Court commented (by way of obiter) that exclusions for loss arising from fact and circumstances known by the insured prior to the inception of such policies (“prior circumstanc- es exclusions”) are void by reason of Section 52 of the ICA. Section 52 prohibits contracting out of the operation of the Act. The Court found that the prior circumstance exclusion in this case had the effect of transforming what is a matter for disclosure (gov- erned by Sections 21 and 28 of the Act) into a general exclusion from cover in all instances. Its effect is to substantially exclude the application of the duty of disclosure provisions. While the potency of prior circumstances exclusions had been significantly diluted by the prevalence of continuous cover extensions over the years, this deci- sion will narrow underwriters’ options to non-disclo- sure and misrepresentation, and as a result require underwriters to establish prejudice in seeking a rem- edy. This decision also has implications for other lines of business, including D&O. Cyber In the last 12 months, regulatory activity has been notable. In September 2025, the first-ever civil penalty proceedings for breaches of the Privacy Act reached its conclusion, with pathology services provider Australian Clinical Labs (ACL) being ordered to pay AUD5.8 million for a breach in 2022, which exposed the information of more than 220,000 clients. The Australian Information Commissioner had alleged that serious systemic failures at ACL had led to their cli- ents’ information being exposed. It was the first judi- cial consideration of the obligation to take reasonable steps to protect an individual’s privacy, as required under the Privacy Act. The breaches arose from ACL’s knowledge of a breach and its knowledge of the inad- equate response undertaken by its cybersecurity con- sultant in response. As a result, it was alleged that the sensitive health data of clients remained exposed for more than 12 months. ASIC has also been active in enforcing cyber risk obligations. ASIC has commenced two enforcement proceedings against financial planning firm Fortnum
Private Wealth and FIIG Securities. In each case, ASIC alleges breaches of Section 912A, which outlines gen- eral obligations of financial services licensees, includ- ing the duty to provide the services efficiently, hon- estly and fairly; to have adequate resources to perform their services; and to have adequate risk management systems. Otherwise, the costly implications of data breaches continue without any clear indication as to how vic- tims of data breaches can be best placed to recover compensation while the companies at the centre of the breaches bear the extraordinary costs burden of defending multiple actions. Medibank and Optus face consumer class actions in the Federal Court in addition to representative (or class action) complaints made to the Office of the Australian Information Commissioner (OAIC). In addition, Optus is now also the subject of a civil penalty proceeding brought against it by the Australian Communications and Media Authority for failing to protect the confidentiality of the personally identifiable information of its customers. These pro- ceedings are moving at a stately pace. In the mean- time, substantial breaches continue apace, including a breach of Qantas, exposing the details of 6 million members of its loyalty scheme. Liability Historical abuse continues to dominate the liabil- ity landscape in Australia and to drive claims costs. Defendants and their insurers may also see a rise in care damages in light of a recent decision of the High Court. Amendments to the law around vicarious liability The High Court in Bird v DP [2024] HCA 41 emphati- cally rejected any extension of the scope of the doctrine of vicarious liability (a form of strict liability whereby a defendant is attributed with the liability of another, despite the defendant bring free of fault) beyond employment, in finding that a relationship akin to employment between the Catholic Church and a parish priest, not employed by the Church, was not sufficient to impose a finding of vicarious liability. That decision puts Australia at odds with the devel- oped common law in both Canada and the United Kingdom. The legislatures in the Australian Capital
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AUSTRALIA Trends and Developments Contributed by: Michael Polorotoff, Jeremy Peck, Emily Daffy and Scott Cowell, Moray & Agnew
Territory and Victoria have either passed legislation or have draft legislation before them that will expand the doctrine of vicarious liability to include relation- ships akin to employment. New South Wales has had in place legislation to this effect since 2018. It can be expected that other states and territories may follow suit. Care damages In September 2025, the High Court of Australia was called upon to consider whether a plaintiff was entitled to recover the costs of being cared for in his home, as opposed to being cared for at a facility at a consider- ably lesser cost. In finding in the plaintiff’s favour, the High Court noted the following relevant factors: • before his accident (which left him catastrophically injured), the plaintiff had lived at home; • continuing to live at home provided the company of his dog and better access to his family, particu- larly his brother and son; • if not for the defendant’s negligence, the plaintiff would have continued to reside at home; and • as the evidence established, there would be real and physical, not merely “slight or speculative”, improvements in the plaintiff’s quality of life and mental health by living at home, rather than at a facility.
These factors led to the High Court finding that the plaintiff’s choice to live at home was reasonable, and he was entitled to recover the cost of receiving care at home. Whilst the High Court affirmed that each matter would turn on its own facts, it is plainly no longer enough for a court to commence its consideration by casting the plaintiff’s choice to one side because there is a cheaper type of care arrangement available. Defend- ants and insurers are likely to see resulting inflation in damages claimed and awarded for care in cata- strophic injury cases. The coming year – non-delegable duty In the coming year, defendants and their insurers will seek clarification of the law surrounding non-delega- ble duty (a personal/direct duty owed to ensure that reasonable care is taken). The High Court recently heard an appeal in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcas - tle , which may change the current position (identified in Lepore) that a non-delegable duty does not extend to the prevention of intentional criminal conduct by a third party.
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AUSTRIA Law and Practice Contributed by: Philipp Scheuba BLS Rechtsanwälte GmbH
Czech Republic
Germany
Slovak
Vienna
Austria
Hungary
Italy
Slovenia
Croatia
Contents 1. Basis of Insurance and Reinsurance Law p.17 1.1 Sources of Insurance and Reinsurance Law p.17 2. Regulation of Insurance and Reinsurance p.17 2.1 Insurance and Reinsurance Regulatory Bodies and Legislative Guidance p.17 2.2 Writing of Insurance and Reinsurance p.17 2.3 Taxation of Premium p.18 3. Overseas Firms Doing Business in the Jurisdiction p.18 3.1 Overseas-Based Insurers or Reinsurers p.18 3.2 Fronting p.19 4. Transaction Activity p.19 4.1 M&A Activities Relating to Insurance Companies p.19 5. Distribution p.19 5.1 Distribution of Insurance and Reinsurance Products p.19 6. Making an Insurance Contract p.20 6.1 Obligations of the Insured and Insurer p.20 6.2 Failure to Comply With Obligations of an Insurance Contract p.21 6.3 Intermediary Involvement in an Insurance Contract p.21 6.4 Legal Requirements and Distinguishing Features of an Insurance Contract p.21 6.5 Multiple Insured or Potential Beneficiaries p.21 6.6 Consumer Contracts or Reinsurance Contracts p.21 7. Alternative Risk Transfer (ART) p.22 7.1 ART Transactions p.22 7.2 Foreign ART Transactions p.22 8. Interpreting an Insurance Contract p.22 8.1 Interpretation of Insurance Contracts and Use of Extraneous Evidence p.22 8.2 Warranties p.23 8.3 Conditions Precedent p.23
9. Insurance Disputes p.23 9.1 Insurance Disputes Over Coverage p.23 9.2 Insurance Disputes Over Jurisdiction and Choice of Law p.24 9.3 Litigation Process p.24 9.4 Enforcement of Judgments p.24 9.5 Enforcement of Arbitration Clauses p.24 9.6 Enforcement of Awards p.25 9.7 Alternative Dispute Resolution p.25 9.8 Penalties for Late Payment of Claims p.25 9.9 Insurers’ Rights of Subrogation p.25 10. Insurtech p.25 11. Emerging Risks and New Products p.26 11.1 Emerging Risks Affecting the Insurance Market p.26 11.2 New Products or Alternative Solutions p.26 12. Developments in Insurance Law p.26 12.1 Significant Legislative or Regulatory Developments p.26 10.1 Insurtech Developments p.25 10.2 Regulatory Response p.25
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AUSTRIA Law and Practice Contributed by: Philipp Scheuba, BLS Rechtsanwälte GmbH
BLS Rechtsanwälte GmbH is one of the leading me- dium-sized law firms in Austria, with over 50 years of experience and approximately 65 employees lo- cated in the heart of Vienna. It provides legal advice to companies of all sizes and to private individuals, especially in connection with insurance matters. These include major claims settlements for national and international insurance companies and defence
against liability and cover claims. In addition, BLS is regularly entrusted with complex mandates, specifi- cally in the areas of D&O and fidelity insurance, both as coverage and monitoring counsel and as direct representatives of insured persons in civil and crimi- nal cases. BLS is the exclusive Austrian member of Pangea Net, an international network of independent law firms.
Author
Philipp Scheuba is managing partner at BLS in Vienna. He has dealt with major loss issues regarding industrial, construction, energy, IT and food companies for more than 20 years. Philipp is one of the most renowned
insurance law experts in Austria on all matters, especially in the areas of commercial, product and medical liability, financial institutions, fidelity and D&O insurance, major emergencies, product recalls, or legal disputes arising from the same. Due to his long-term experience and expert knowledge in resolving disputes regarding insurance law, Philipp is currently acting as a legal representative on behalf of international fidelity guarantee and D&O liability insurance companies in various cases.
BLS Rechtsanwälte GmbH Kärntner Straße 10 1010 Vienna Austria
Tel: +43 1 512 14 27 Fax: +43 1 513 86 04 Email: office@bls4law.com Web: www.bls4law.com
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AUSTRIA Law and Practice Contributed by: Philipp Scheuba, BLS Rechtsanwälte GmbH
1. Basis of Insurance and Reinsurance Law 1.1 Sources of Insurance and Reinsurance Law The key source of private insurance law is the Austrian Insurance Contract Act (VersVG), which is based on general civil law provisions, in particular the General Civil Code Book (ABGB), and supplements these, but in some cases also supersedes them. The Austrian Insurance Contracts Act mainly focuses on the insur- ance contract itself and defines obligations for the insurer and the policyholder. Nevertheless, certain insurance contracts are excluded from the scope of application of the VersVG. This particularly applies to reinsurance contracts to which – in the absence of special statutory provisions – only general civil law applies. The provisions of the VersVG are in turn supplement- ed – depending on the type of contract – by further regulations. For example, the provisions of the UGB (Commercial Code) apply to insurance contracts con- cluded by commercial enterprises. The provisions of the KSchG (Consumer Protection Act) apply to con- tracts with consumers. In addition to contractual provisions, Austrian insur- ance law is significantly influenced by the Insurance Supervision Act 2016 (VAG 2016). The VAG primar- ily defines (re)insurance companies as well as their organisational and regulatory framework, governance as well as capital and liquidity requirements. In addi- tion, European Union legal acts such as the Solvency II Directive (Directive 2009/138/EC on the taking-up and pursuit of the business of Insurance and Reinsur- ance) or the IDD Directive (Directive EU 2016/97 on Insurance Distribution) have recently played a signifi- cant role in Austrian insurance law. Although precedents are not legally binding, Austria’s Supreme Court decisions have an essential purpose in giving specific content to the law and determining the meaning of provisions. Decisions of lower courts are regularly also set aside by the Supreme Court if they are not in accordance with its jurisdiction.
2. Regulation of Insurance and Reinsurance 2.1 Insurance and Reinsurance Regulatory Bodies and Legislative Guidance The Austrian insurance regulatory framework is essen- tially determined by the Insurance Supervision Act 2016 (VAG 2016), which implements the Solvency II Directive of the European Union. The provisions of the VAG are supervised by the Aus- trian Financial Market Authority (FMA) and primarily aim to protect the insured person. Operation of an insurance company requires a licence from the FMA. Furthermore, the insurer is also obliged to disclose certain data. In this regard, IDD stipulates most disclo- sure and information obligations EU-wide. Neverthe- less, insurance companies are only subject to formal monitoring, which means the supervisory authority cannot intervene in actual business activity. According to the Austrian Industrial Code, insurance and reinsur- ance intermediaries need a special business licence from the competent district administrative authority. Worth mentioning in this context is the European Insur- ance and Occupational Pensions Authority (EIOPA), which ensures a common supervisory practice and uniform application of European rules. Although EIOPA has no direct legislative competence, it has a considerable influence on European standards as it draws up drafts of technical standards to which the European Commission subsequently gives binding legal effect in the form of resolutions or regulations. 2.2 Writing of Insurance and Reinsurance The operation of a (re)insurance company requires licensing or authorisation by the FMA in the form of a concession. If an Austrian company is granted a licence to operate an insurance company, this licence in principle applies to all EU member states. A separate concession must be applied for each class of insurance, whereby the operation of certain forms of insurance excludes other classes of insurance. Therefore, the parallel operation of a life insurance policy and a property insurance policy is excluded (under the principle of separation of lines of business).
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AUSTRIA Law and Practice Contributed by: Philipp Scheuba, BLS Rechtsanwälte GmbH
3. Overseas Firms Doing Business in the Jurisdiction 3.1 Overseas-Based Insurers or Reinsurers Generally, every (re)insurance company needs an Austrian concession to offer insurance and reinsur- ance services in Austria. With regard to (re)insurance companies that do not have their headquarters in Austria, the Insurance Supervision Act does differen- tiate between (re)insurers domiciled in other signa- tory countries of the European Economic Area (EEA insurers) and (re)insurers based in other jurisdictions (referred to as “third-country insurance and third- country reinsurance companies”). EEA insurers may carry out their business either by establishing a branch office in Austria or according to their freedom to provide services within the European Economic Area. Thus, EEA insurers do not require an additional licence to do business in Austria. However, there is a duty to notify their competent home coun- try supervisory authority of their intention to conduct insurance business in Austria. Other than EEA insur- ers, third-country (re)insurance companies require a licence in order to be able to conduct insurance busi- ness in Austria. Such licence may be obtained from the FMA. In addition, third-country (re)insurers need to establish a branch office in Austria before doing business there. Due to Brexit, the UK is no longer a member of the EU. In terms of the EEA Agreement, the UK is now a third country, which makes it harder for British companies to access the Austrian (re)insurance market. Additionally, Section IV of the Insurance Supervision Act does provide specific licensing requirements for third-country (re)insurers. However, where the Europe- an Commission has determined the solvency regime of a third country to be equivalent in accordance with Article 172 (2) or (4) of Directive 2009/138/EC, the pro- visions of this Section shall not be applied to third- country reinsurance companies having their head office in that third country. Reinsurance contracts concluded with such companies shall therefore be treated in the same manner as reinsurance contracts concluded with EEA reinsurance undertakings. Sec- tion 4, paragraph 19a VAG provides further facilita-
In order to obtain a concession, the company apply- ing for a concession must meet certain requirements. For example, the insurance company has to establish an effective risk management system, whereas capi- tal and liquidity requirements follow the Solvency II Directive and Regulation (EU) 2015/35. Furthermore, the headquarters of the insurance company must be located in Austria. Foreign providers of intermediary insurance or reinsurance services need a domicile or branch in Austria unless bilateral treaties define otherwise. Apart from that, the insurance company needs at least two board members who are able to comply with governance regulations and sufficiency of own funds. Moreover, the purchase of a qualified share (any share which corresponds to at least 10% of the capital or the voting rights) has to be notified to the FMA. Domestic insurance companies may only operate in the legal form of a stock company, societas Euro- paea or a mutual company. There are no differences between writing consumer insurance or corporate insurance regarding these requirements. 2.3 Taxation of Premium The insurance premiums paid by the policyholder are generally subject to the Insurance Tax Act (VersStG), which provides different tax rates for different lines of business. For example, a motor-related insurance tax is charged on motor vehicles registered in Austria, which is cal- culated on the basis of the engine’s displacement or power. For motor vehicles that are not subject to motor-related insurance tax, the motor vehicle tax law applies. Another example is insurance premiums paid for fire insurance, which are subject to the Fire Pro- tection Act; the Fire Protection Act levies a tax of 8%. Health insurance premiums are taxed at 1%, while life insurance premiums are taxed at either 4%, 11% or 18%.
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