GERMANY Law and Practice Contributed by: Oliver Sieg, Helmut Katschthaler, Philipp Koch and Charlott Kujath, Noerr
liability defences but also with coverage defences, this route is rarely taken. An exception, in turn, is D&O insurance. In cases of internal liability of insured persons towards the policy- holder company, it has become increasingly common for the coverage claim to be assigned to the company, thereby enabling it to sue the D&O insurer directly for its loss. The permissibility of this approach was long disputed, but has since been clarified. However, fol- low-up issues remain in dispute, for instance regard- ing the burden of proof and with respect to duties of disclosure and cooperation. 6.2 Emerging Liability and Defence Trends The dynamics of liability exposure for economic actors and their insurers are more challenging than ever. • Climate-related claims originating from foreign circumstances are being brought before German courts – often with the support of NGOs – relying on novel legal theories, such as market share liabil- ity. These proceedings prompt, for instance, costly and high-profile site inspections in the Peruvian Andes (see 4.7 ESG and Climate-Related Cover- age) . Beyond damages, these cases also serve as vehicles for political appeals to the public. • Regulators have become more active in investigat- ing corporate conduct, which, in turn, generates follow-on civil litigation. Environmental, social, and governance (ESG) enforcement actions, data-privacy investigations, and antitrust inquiries frequently produce parallel civil claims which can trigger coverage obligations across multiple policy lines – D&O, E&O, cyber, and general liability. Insurers must closely monitor these developments, ideally anticipate them, and be prepared. In addition to actuarial and underwriting instruments, such as the development of new products (eg, cyber-insurance, tech E&O) or exclusions (PFAS), and risk manage- ment tools (pre-coverage and ongoing auditing and consulting), the primary focus is on building in-house expertise and corresponding networks of specialised advisors, including technical experts and PR agen- cies. In times of a declining number of active risk carriers in certain lines of business, such as product liability insurance or D&O insurance, organisational
challenges also arise more frequently, and multiple parties involved in the same group of cases hold cov- erage with the same insurer, potentially giving rise to conflicts of interest. In this regard, effective measures for the implementation of Chinese Walls or the out- sourcing of claims handling must be in place, not least in view of regulatory requirements. 7. Geopolitical Factors 7.1 Geopolitical Drivers of Insurance Disputes Geopolitical developments, such as miliary conflicts and trade tensions, continue to influence claims han- dling, coverage positions and insurance disputes. In a globalised world, with deglobalisation being a comparatively new countertrend, geopolitical events have global impact, especially considering how Great Powers are increasingly involved in conflicts with each other. Hardly any other risk factor is capable of caus- ing damage on a comparable scale in one swoop, be it because of enormous individual losses or one geopolitical event triggering multiple losses in several lines of business at once. Risks spread faster and wid- er, driving up frequency and scope of insured losses on the primary market, ultimately translating into the reinsurance layer. And where significant loss occurs, disputes inevitably follow. Geopolitical instability thus leads to more disputes with potentially high volumes both in the primary and the reinsurance layers. For example, sanctions following the Russian inva- sion of Ukraine remain a highly influential factor, with new sanctions continuously being added to the list. Only recently, in July 2026, the EU introduced its 21st package of sanctions against Russia. Consequences range from business interruption to failures of invest- ment and a surge in cross-border disputes. On top of that, for directors and officers, the misjudgement of geopolitical developments may even threaten future liability. 7.2 Sanctions and Payment Challenges Sanctions have proven to present a challenge for insurers when it comes to claims handling – not only with regard to payments made to policyholders across borders. As the EU has imposed sanctions following the attack on Ukraine that, inter alia, prohibit making
136 I NSURANCE L I T IGATI O N 2026
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