Insurance
14.09.2022
Insurance services are part of the risk management for a company’s financial health. Ukrainian business insures many risks: life and health, responsibility before third parties, cargo insurance, construction, equipment, etc. However, such policies may contain exceptions from coverage and if the damage is caused as a result of military hostilities, terrorist acts or political violence. First of all, we recommend checking previously purchased insurance policies for available war or political risks exclusions.
During the martial law in 2018, the insurance market continues to work: 89% of insurance companies fulfilled their obligations under insurance contracts in full and enter into new contracts. The regulator, the National Bank of Ukraine (“NBU”) reported on restructuring in the service sector: postponement of regular insurance contributions, early termination of insurance, complications during settlement of insurance cases in regions where hostilities are taking place and in the occupied territories [1].
A similar situation existed during the martial law in 2018: the insurance market did not stop payments [2]. However, after the hybrid aggression on the territories in Donetsk and Luhansk Oblasts and the annexation of the Autonomous Republic of Crimea in 2014 there were many rejections: the policy often would not recognize as a covered risk any events that occurred on the territory of military and combat zones (regardless a causal link with such actions) [3] or require a separate premium to cover the risk of war, and other risks: armed conflict, the introduction of martial law, requisition or seizure of enterprises, etc. [4]. Similar products are also used by the Armed Forces of Ukraine and the National Guard.
Evidently, it is quite difficult to purchase new policies to cover military risks during active hostilities, even if the region (district of a separate oblast, for example) has not been the object of aggression. If you purchased a policy covering war risks before 22 February 2022, or such coverage is incorporated into existing one, then it is necessary to analyze in detail the relevant provisions. Specialised political/war risk insurance policies in a similar fashion contain a list of insurance events and a number of exclusions. That is, not every loss, even caused by warfare, is guaranteed to be reimbursed. For example, the policy may cover only the direct material damage, and does not cover the seizure of the enterprise, or other deprivation of use the insured property.
After 24 February 2022, insurance policies, particularly, referring to aviation and maritime risks, provide for cancelation of military risks coverage by the insurer due to the refusal of reinsurers from previously concluded policies [5], - most reinsurance policies contain the insurer’s right to change or withdraw coverage as well as reassess risks unilaterally under exceptional circumstances. As a result, aircraft and maritime vessels may refuse to provide commercial transportation services where insurance coverage is required by the law or when the risks are too high and outweigh the potential liability for the breach of contract.
Since this July, a number of carriers have been interested in ensuring the coverage of grain supplies from Ukraine, as soon as the limited operation of the Black Sea ports was resumed. [6] However, the Russian missile attack on Odesa only a day after the signing of the agreement on the export of grain and fertilizers between Ukraine and Turkey [7]; and between Turkey and Russia, added concern to insurers. Broker Marsh and insurer Ascot (Lloyd's of London) announced coverage of up to USD 50 million under a new marine cargo and war insurance program. [8] The cost of such insurance is reported [9] to be high given the high risks involved and will vary by cargo, shipowner and port.
In addition, the Ministry of Economy of Ukraine reports that the Government of Ukraine has agreed with the Multilateral Investment Guarantee Agency (“MIGA”) to insure investments despite hostilities. MIGA and the Government of Ukraine are ready to implement a pilot project worth USD 30 million already in 2022, if there will be applications [10].
According to the Minister of Economy of Ukraine, Oleksandr Hryban, the amounts for coverage will be increased next year; after the completion of the structuring of the World Bank's trust fund, which will be designated for the recovery of our country, Ukraine will receive USD 17 billion for the reconstruction of critical infrastructure and stimulation of economic development. A part of this amount will be directed specifically to the insurance of investors' risks [10].
[2] https://mind.ua/news/20191022-vvedennya-voennogo-stanu-ne-e-pidstavoyu-dlya-vidmovi-u-strahovij-viplati-nackomfinposlug, https://insurance.vidi.ua/ua/press/kasko-v-usloviyah-voennogo-polozheniya/
[3] See paragraph 2.3 https://arx.com.ua/uploads//oferta_152_vid_04.06.2018_dtsv_vidshkoduvannya_franshyzy_2000_po_ostspv.pdf
[4] See paragraph 10.1.1 of the https://ulf.ua/files/casco_tas.pdf,
[5] https://interfax.com.ua/news/economic/798008.html
[6] https://www.insurancejournal.com/news/international/2022/07/25/677131.htm
[7] https://www.facebook.com/photo?fbid=582679753432410&set=pcb.582679793432406
[8] https://www.insurancejournal.com/news/international/2022/07/29/677933.htm
[9] https://www.insurancejournal.com/news/international/2022/08/24/681748.htm
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Serhii Uvarov
Partner, International Arbitration, Cross-Border Litigation