2. Answers to Test Yourunderstanding Questions

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Chapter 12

ANSWERS TO TEST YOURUNDERSTANDING QUESTIONS

Chapter 6Follow the Settlements and Follow the Fortunes1. Which of the following best describes the tension of reinsurance?

Answer: (c) The problem of ensuring that the reinsurers agreement with the reinsured is not undermined by the actions of thereinsured and insured in an agreement over which the reinsurer may have no control.

2. Can a reinsurer refuse to pay a claim on the basis of breach of the following by the reinsured?

(a) The reinsured will underwrite sensiblyNo

(b) The reinsured will take all proper and businesslike steps in settling a claimYes

(c) The reinsured has made a payment designated as without prejudiceNo

(d) The claim does not fall within the reinsurance as a matter of lawYes

(e) The reinsured has failed to comply with a standard claims control clause which is not a condition precedentNo

(f) The original claim is arguably not covered by the insuranceYes.

3. Which of the following are true?

Answer:

(a) The parties are free to agree whatever they want in order to ascertain which losses will fall within the insurance and reinsurance,and this can include the insureds laundry billTrue.

See Lord Mustill inHillv. M & G. But the wording must be sufficiently clear, and the courts have resiled from giving effect to theexercise of excessive discretion by one party.

(b) Each Follow the Settlements wording must always be considered independently by the courts, in the context of its factualbackgroundTrue.

Lord Mustill again.

(c) Allowing the reinsured to determine what will be final and binding on the reinsurer is void because it ousts the jurisdiction of thecourtsUntrue.

The courts still have jurisdiction over what is final and binding on the reinsurer because it will be determining the effect of clauseswithin the reinsurance contract.

(d) A decision made by a reinsured on what is covered as a matter oflaw can be reconsidered and overturned if it there is asubsequentcourt decision to the contraryUntrue.

SeeCaudlev. Sharp.

(e) It is easier for a reinsurer to argue about claims under a back-to-back reinsurance than any other typeUntrue.

If the reinsured has acted honestly and in a businesslike manner and is arguably liable for the claim, the reinsurer must pay.

(f) In certain circumstances an obligation of a reinsurer to follow aspecific claim that has been properly adjusted can be a debt andtherefore easier to collect by the reinsuredUntrue.

A claim under a contract of reinsurance is technically a claim for damages inbreach of the contract, which is one of indemnity. Even

though the underlyingsettlement or award may have been properly quantified, it is not a debt.

(g) The reinsured can never obtain payment for costs which with the claim exceed the limit of the reinsurance contractUntrue.

The caselaw is incomplete. In the absence of an express term the reinsured is not entitled to costs of the original claim, and certainlynot if the claim with the costs exceeds the limit of indemnity. See ICA v. SCOR. But it is still open to a reinsured to prove that there isa custom enabling him to recover his costs. He may also try to use s. 51 of the Supreme Court Act 1981, or Gan v.Tai Pingwhere thereinsurer has acted in bad faith.

(h) A standard claims control clause can be exercised by the reinsurer in any way he sees fitUntrue.

A claims control clause may be of little effect if it is not expressed to be a condition precedent. Where it is a condition precedent thereinsurer is in a strong position but must nevertheless abide by some standard of reasonableness, at least not to act in bad faith,followingGan v. Tai Ping.

A GUIDE TO REINSURANCE LAW - 1st Edition, 2007

Chapter 12 ANSWERS TO TEST YOURUNDERSTANDING QUESTIONS

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(i) A commutation by a reinsurer of all his liabilities and potential liabilities must be followed by his retrocessionaire if thecommutation is reasonableUntrue.

A commutation by a reinsured or reinsurer of its liabilities does not necessary fall within the definition of loss settlement andalthough reasonable may enable the reinsurer or retrocessionnaire not to pay.

(j) Interest is payable by the reinsure from the date on which the reinsured pays the original claimUntrue.

Interest is not payable unless there is an operative contractual provision or legal proceedings are instituted before the principal sum ispaid to the reinsured, following which interest can be awarded by the court or tribunal in its discretion.

(k) A cut though clause is perfectly enforceable under English law at all times, so that an insured can bypass the insurer and obtainpayment from the reinsurerUntrue.

A cut through clause is enforceable against a reinsurer by an insured under the Contracts (Rights of Third Parties) Act 1999 unless aninsolvency has occurred, so that the pari passu rule will apply to give all creditors equal rights.

(l) A judgment of a foreign court against the reinsured is an unimpeachable adjustment of the loss which the reinsurer mustfollowUntrue.

A judgement of the foreign court is not unimpeachable because it may be perverse, the court may not have had jurisdiction, anothercourt may have had jurisdiction, or the reinsured may not have taken all proper defences. See Commercial Unionv.NRG Victory.

(m) A reinsured must be paid in full for any loss substantiated by a report of a well-known loss adjusterTrue.

Provided there are no obvious discrepancies on the face of the report, in which case the reinsured will not be able to an indemnity for

the settlement from the reinsurer.

(n) The parties can agree any rate of interest applicable to claims paid late by the reinsurerTrue.

The parties can agree anything they want.

Chapter 7Claims1. Fill in the blanks to state how a typical claims cooperation clause mightread:

Notwithstanding anything contained herein to the contrary, it is a conditionprecedent to any liability under this policy that:

(1) the Reinsured shall upon knowledge of any loss(es) and occurrence(s)which may give rise to a claim recoverable hereunder advisethe Reinsurersthereof as soon as reasonably practicable.

(2) the Reinsured shall furnish the Reinsurers with all information availablerespecting such loss(es) or occurrence(s) and shallco-operate with the Reinsurers in the adjustment and settlement thereof.

2. In a claims control clause notification of a loss or an occurrence, which maygive rise to a claim, should be advised:Answer: (d) Immediately.

3. Which of the following will not stop the limitation period from running?

Answer: (d) An honourable engagement clause.

(See page 20.Orion Compagnia Espanola de Segurosv. Belfort Maatschppij VoorVersekgringeen[1962] 2 Lloyds Rep. 257.)

4. According to the Law Commissions proposed changes to limitation periods, how long would the Reinsured have in which to bringa claim against his Reinsurers?

Answer: (b) Three years.

5. If an insured grossly exaggerates a substantial part of the claim, this would appear to permit the Insurer to:

Answer: (c) to avoid the entire claim.

(See page 25.Direct Line Insurance Plc v. Khan[2002] Lloyds Rep IR 634.)

6. When does the duty of utmost good faith come to an end?

Answer: (c) when the Insurer rejects the claim.

(See page 26.Manifest Shipping Company Ltdv. Uni-Polaris Insurance Company Ltd (The Star Sea) (1995) 1 Lloyds Rep. 65.)

7. If a Reinsurer suspects that there has been misrepresentation on the part of the Reinsured, what should the Reinsurer do first inorder to protect his legal position?

Answer: (b) express a full, written reservation of rights to the Reinsured.

See page 31. It is important that if the Reinsurer suspects misrepresentation or fraud that he immediately reserves his rights under the



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contract (before obtaining more information, before instructing outside counsel, and certainly before inspecting the Reinsuredsrecords (Iron Trades Insurance v. Compagnhia de Seguros Imperio[1991] 1 Re. L.R. 213) since otherwise the contract may betreated as affirmed and the Reinsurer may be stopped from raising the misrepresentation issue.)

8. The purpose of an honourable engagement clause is to:

Answer: (a) permit any disputes between the parties to be determined by arbitrators whose decision will not be in accordance with thestrict rules of law.

9. According to the ARIAS Rules, the general rule for the Tribunal is that there should be:

Answer: (c) Three arbitrators, each with 10years professional experience.

Chapter 8Intermediaries1. Does it matter to the enforceability of a contract by the reinsurer that the reinsured limited the actual authority of his broker in amaterial way?

Answer: No, unless the reinsurer is aware of the limitation placed on the actual authority of the broker. The key element is theapparent authority of the broker, namely what the reinsurer properly understands the brokers authority to be as a result ofrepresentations made by the reinsured.

2. Is the broker usually the agent of both reinsured and reinsurer?

Answer: No. The broker is usually the agent of the reinsured.

3. What is the effect of the liquidation of the reinsured on a reinsurance contract concluded after that liquidation, and are there anyremedies available to the reinsurer against the reinsured or its broker?

Answer: The principal for whom the broker is trying to place reinsurance can only act through its liquidator, so that the broker will inthe absence of instructions from the liquidator be in breach of his warranty of authority. The broker will be liable for any loss caused,which will probably be limited to the premium that the reinsurer would have been paid had the broker been properly authorised by thereinsured.

4. Does the ratification by the reinsured of the contract placed by the broker in excess of hisauthority automatically exonerate thebroker from acting unlawfully?

Answer: No. It will always depend on the circumstances.

(SeeSuncorpv. MilanoandNIGCv. Imperio.)

5. What is an agent to insure?

Answer: An agent to insure is the party placing the insurance, rather than an agent to inform or an agent to know or an agent with no

substantive role to play. An agent to insure is subject to s. 19 of the Marine Insurance Act.

6. Can a broker ever be liable for non-disclosure or misrepresentation to the reinsurer?

Answer: Perhaps. It is unlikely but could occur where the broker has assumed a responsibility or liability to the reinsurer such that thenondisclosure or misrepresentation is not made or not made on behalf of the reinsured but rather exclusively by the broker, and forwhich he alone is responsible.

7. Would a material fact of the reinsured known by the postboy of the broker be attributed to the reinsured and therefore bedisclosable to the reinsurer?

Answer: No. A postboy is not an agent to insure and his knowledge is not sufficiently substantive to make it the same as thereinsured.

8. Does the fraud of the broker upon the reinsured, which impacts on the reinsurance, have any effect on the validity of thereinsurance?

Answer: No. Where the fraud is that of the broker against the reinsured.

9. What steps should a broker take to ensure that he is not responsible for the collection of claims many years after placement?

Answer: A broker is responsible for the collection of claims unless he has been paid on a fee basis only for placement. A brokershould ensure that the position is clear as a matter of contract at the outset, and if it is not clear then he will generally be responsiblefor claims.

10. What should a broker do when faced with an ambiguity in his instructions?

Answer: He should take instructions from the reinsured.

11. Should a broker accept his instructions at face value or should he check that they reflect the actual needs of the reinsured?



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Answer: He should act professionally to ensure that the instructions received accurately reflect the needs of the reinsured where thereis the slightest doubt that they may be wrong.

12. Should a broker convey to the reinsured every doubt that he may have about the intended security of the reinsurer, or should hemake an overall decision as to its solvency?

Answer: A broker should only convey substantive doubts about any aspect of the security of a reinsurer, rather than every item,however small. In essence his security committee should make an overall judgement as to the security of a reinsurer; if there is any

aspect of which it is doubtful, and that aspect is relevant or substantive such that it constitutes a genuine doubt about that security,then the security should not be used and if the reinsured wishes to use it the broker should make its doubts very clear.

13. How much reinsurance law should a broker know?

Answer: Enough! The broker should understand the general principles of the law relevant to the contract of reinsurance which he isplacing, including those principles relevant to the underlying insurance which might impact on the reinsurance. He should alsounderstand the relevant principles of drafting and interpreting the wording.

14. For what purpose does a broker receive payment, and by whom?

Answer: The broker in placing insurance is actually paid by the reinsurer for the introduction of the business. Nevertheless, he owesmore duties to the reinsured than the reinsurer, and he is only allowed to accept the payment from the reinsurer because the reinsuredhas impliedly consented to his remuneration being taken out of the premium.

15. What is the maximum period within which legal proceedings should be comenced for a broker who has failed to pass on allmaterial information, which has resulted in avoidance of the contract by the reinsurer?

Answer: The Latent Damage Act has a long-stop of 15 years from the date of the actual negligence of the broker. In the absence ofconcealment, however, the usual limit is six years.

Chapter 9Jurisdiction1. Why is the forum in which a dispute is heard important?

Answer:

(a) It may affect whether any judgment is enforceable against the defendant

(b) The judiciary may be more experienced in one forum than another

(d) It may have practical consequences for the attendance of witnesses and the gathering of evidence

(e) It may affect the speed at which the proceedings can be pursued.

2. Which of the following lay down rules on jurisdiction which may be applied by the English courts?

Answer:

(a) Common law

(b) Brussels Convention

(c) Lugano Convention

(e) Brussels Regulation.

3. A jurisdiction clause provides The Reinsurer may bring proceedings against the Cedant in any forum including, withoutlimitation, the courts of England and Wales. This clause is:

Answer: (b) A non-exclusive jurisdiction clause.

4. Under the common law rules, which one of the following is not a ground for the English courts to accept jurisdiction against adefendant?

Answer: (e) The claimant is present in England.

5. In addition to establishing that one or more of the above criteria applies, what else does a claimant have to demonstrate in order topersuade the English court to accept jurisdiction under the common law rules?

Answer:

(a) There is a reasonable prospect of the claim proceeding (a serious issue to be tried)

(d) England is the most appropriate forum for the dispute to be heard in (forum conveniens).

6. Under the common law rules, what approach do the English courts take where a contract contains a jurisdiction clause in favour ofthe English courts?



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Answer: (b) The English court may accept jurisdiction. It will weigh up all the factors. The jurisdiction clause will be a very strongfactor in favour of accepting jurisdiction.

7. Under the Conventions/Regulation, where can a claimant sue a defendant?

Answer:

(a) The defendants country of domicile

(b) The place where the contractual obligation in question was due to be performed

(c) The place where the tort was committed (where the dispute relates to a tort)

(e) The place where the defendant has a branch or agency (if the dispute arises out of the branch or agency)

(g) Where related proceedings have been brought against another defendant.

8. Which of the following sources are used by the English court to determine the law which governs a reinsurance contract made in2004?

Answer: (d) Rome Convention.

9. When may the English court refuse to uphold a choice of law?

Answer: (c) Where it would be contrary to English public policy to uphold the choice of law, because the choice is made to evade arule of law.

10. Where the parties to a contract have made no express or implied choice of law, the courts seek to ascertain either the system oflaw (common law rules) or the country (Convention) with which the contract is most closely connected. How do the courts do this?

Answer: (a) The common law weighs up all the factors and looks to the centre of gravity of the transaction. The Rome Conventionrebuttably presumes that the applicable law is the law of the reinsurers head office.

Chapter 10Arbitration1. Which of the following arbitral institutions tends to be used in reinsurance arbitrations?

Answer: (c) LCIA.

2. Which of the following are not considered to be an advantage when using arbitration?

Answer: (d) Limited availability of summary judgment.

3. Which of the following statements is incorrect?

Answer: (b) The Arbitration Act 1996 applies to oral agreements to arbitrate.

4. An arbitration clause containing the wording all claims, disputes and controversies arising out of or in connection with thecontract will not necessarily include disputes relating to which type of claim?

Answer: (d) The legality of the underlying contract.

5. Which of the following areas is not regulated by the Arbitration Act 1996?

Answer: (a) Confidentiality in arbitrations.

6. Which of the following statements is correct?

Answer: (d) Arbitration proceedings between the original assured, insurer and reinsurer can be consolidated with the consent of allthe parties.

7. Which of the following are arbitrators empowered to order?

Answer: (a) Compound interest.

8. Which of the following statements is incorrect in relation to arbitration proceedings subject to the Arbitration Act 1996?

Answer: (c) A party can appeal the decision of an arbitral tribunal on a finding of fact.

9. Arbitration awards can be enforced under which of the following Convention procedures?

Answer: (d) The New York Convention.



Robert Merkin

2. Answers to Test Yourunderstanding Questions

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