The court held that it was insufficient for insurers to simply demonstrate that there was a risk of payment being prohibited, but rather the defendant underwriters must evidence that, on the balance of probabilities, payment would be prohibited.
More controversially, Teare J held that on a proper construction, the sanctions clause did not extinguish underwriters’ liability to pay but rather suspended it until such point where payment could be made, subject to the effect of limitation.
Impact on aviation
This judgment, while not binding on other judges, has ramifications for aviation underwriters as the standard wording in the Sanctions and Embargo Clause (AVN 111) performs a similar function to the sanctions clause in this case. AVN 111 states that:
If, by virtue of any law or regulation which is applicable to an Insurer at the inception of this Policy or becomes applicable at any time thereafter, providing coverage to the Insured is or would be unlawful because it breaches an embargo or sanction, that Insurer shall provide no coverage and have no liability whatsoever nor provide any defence to the Insured or make any payment of defence costs or provide any form of security on behalf of the Insured, to the extent that it would be in breach of such law or regulation.
The judgment confirmed that an underwriter is unlikely to be permitted to rely on a sanctions clause unless there is a legal prohibition on making a payment or providing coverage under the policy. A sanctions clause may not be used as a hiding place for tricky situations or where an insurer has developed an internal policy that goes further than the legal obligation. Underwriters will have to be able to demonstrate why they are prevented, by law, from making payment.
The more controversial aspect of the decision concerns the suspension of the obligation to make payment. Many underwriters upon reading AVN 111 might have concluded that once a sanctions clause was triggered, its effect was to extinguish any liability to pay the claim. However, the effect of this decision is that an insurer has to keep a sanctions restricted claim on its books until it becomes possible to make the payment. That could mean maintaining open claims indefinitely.
This is potentially commercially undesirable and underwriters may give careful consideration to exercising a right to cancel a policy where they consider themselves exposed to sanctions restricted claims.
Insurers will also, to avoid falling foul of the Enterprise Act, need to monitor various sanctions regimes to ensure any suspended claims are paid within a reasonable time of any lifting of sanctions restrictions.
Another consideration is that insured’s may seek to argue that a reliance on AVN 111, in respect of relevant US sanctions, falls foul of the EU Blocking Regulation.
While the court was not required to consider this issue in depth, underwriters may be encouraged by Teare J acknowledging “considerable force” in the defendant underwriters’ submissions that the Blocking Regulation was not engaged where the insurer’s liability to pay a claim is suspended, such as where insurers seek to rely on AVN 111.
In any event, both insurers and insured would be committing an offence by not reporting circumstances where their financial interests are affected by applicable US sanctions to the EU Commission within 30 days.
In light of the current global political uncertainty, it is likely that sanction provisions over many lines of business will become the subject of further judicial consideration in the future.
Read other items in the London Market Brief - October 2018