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This chapter begins by introducing the concept of corporate governance, and the regulatory role of directors’ duties. An appreciation of corporate governance methodologies gives context to the ‘hard law’ of directors’ duties. The chapter then considers who falls within the definition of director, the role of the director within the company, and how that role attracts legal and non-legal regulation. It also identifies who, beyond directors, can also be subject to directors’ duties. The chapter revisits the history of directors’ duties within Australian corporate law, building on the historical context provided by Chapter 1, and exploring the interrelationship between the duties applicable at common law, in equity, and according to statute. It concludes with the consequences of breach of the civil penalty provisions and options for exoneration and relief under the Corporations Act.
This chapter introduces the major themes of the book. Insurance practices and related metaphors began expanding rapidly from a European base some 500 years ago. The simultaneous emergence of the modern state was hardly coincidental. Increasingly complex societies energized by market economies required protection from risks of various kinds. This required mobilizing and organizing private capital to achieve common goals. The deepening of markets and development of financial technologies now increases demands for protection beyond conventional borders. But where the fiscal power of the modern state underpinned national insurance and reinsurance systems, the absence of a global fiscal authority is exposed by rising cross-border, systemic, and global risks. That the background condition for necessary innovation in governance is uncertainty has also become undeniable.
This overview opens with the story of the great fire in Glarus, Switzerland, in 1861. Like those in other cities, the fire brought into clear view key elements of the insurance systems that modern societies needed to foster resilience. In its aftermath, the role of public authorities changed, reliance on new techniques for mobilizing private capital rose significantly, and the interaction of markets and states across established borders became deeper and more complex.
Exploring the economic ramifications of climate change, this chapter features insights from financial experts such as Sara Jane Ahmed, Managing Director and V20 Finance Advisor of the CVF-V20 Secretariat. It discusses the adverse effects on GDP growth, inflation, debt, and credit ratings, particularly in vulnerable economies. The chapter highlights the crucial role of financial markets, insurance, and climate finance in addressing these challenges. Innovative financing solutions such as Green Bonds and pre-arranged and trigger-based financing, including loss and damage finance, are explored as means to build economic resilience. The importance of sustainable economic policies and international cooperation is emphasised, with case studies from countries successfully integrating climate resilience into their economic planning. The chapter calls for increased investment in climate adaptation and mitigation to safeguard economic stability and promote sustainable development.
Climate activists are divided over whether to adopt strategies emphasizing stability and incremental change versus strategies promoting more extreme and immediate action. One way to promote policy stability is through private governance, that is, voluntary industry self-governance. Proponents argue this can stabilize expectations about the future, incentivize incremental reductions in emissions, and lock in policies and practices. This problem-solving approach serves to depoliticize debate but can lead to political backlash and repoliticization. I examine these dynamics through a case study of the financial sector, particularly the insurance industry. Collective attempts to ensure policy lock-in and stability include initiatives such as the United Nations Environment Programme Finance Initiative (UNEP-FI), the Glasgow Financial Alliance for Net Zero, and Net Zero Insurance Alliance. This is a case of failed depoliticization as demonstrated by the political backlash against these efforts.
Of the sectors comprising international capital markets, insurance and reinsurance have attracted relatively little attention from students of politics. New social conventions and financial instruments arising from the invention of probabilistic calculation and the discovery of risk began to spread around the world five centuries ago. Today, states and firms are harnessing the logic of insurance to address an expansive array of risks confronting their societies. In Insuring States in an Uncertain World, Louis Pauly examines the history and politics of pragmatic experiments aimed at governing complex global risks. His fascinating and accessible narrative explores the promise and the challenges of multi-faceted insurance arrangements in arenas ranging from nuclear energy production and international financial intermediation to those focused on environmental change, infectious diseases, and disruptive new technologies. At a time when the foundations of global order are under mounting stress, Pauly makes the case for limited and effective political innovation.
In this chapter of Complex Ethics Consultations: Cases that Haunt Us, the author describes a case in which she was the community member on an ethics committee undertaking a retrospective ethics review of a case where a patient’s surrogate shifted to end-of-life care and discharge to home after being told Medicare (government insurance) would no long pay for his hospitalization. Although the consult was called on a Friday while the patient was alive, it was not reviewed by the full committee until Tuesday, by which time the patient had died.
The systemic nature of climate risk is well established, but the extent may be more severe than previously understood, particularly with regard to cyber risk and economic security. Cyber security relies on the availability of insurance capital to mitigate economic security sector risks and support the reversibility of attacks. However, the cyber insurance industry is still in its infancy. Pressure on insurance capital from increasing natural disaster activity could consume the resources necessary for economic security in the cyber domain in the near term and create long-term conditions that increase the scarcity of capital to support cyber security risks. This article makes an original contribution by exploring the under-researched connection between the nexus of cyber and economic security and the climate change threat. Although the immediate pressure on economic resources for cyber security is limited, recent natural disaster activity has clearly shown that access to capital for cyber risks could come under significant pressure in the future.
In the period of the Renaissance, trade became a matter of legislation and policy. Municipal governments and princes aimed to facilitate trade. International trade relations became increasingly supervised by states. This came in tandem with more treaties. From the middle of the fifteenth century onwards, specialized institutions were created and they increased control over foreign merchants. As a result of growing government intervention, the rules relating to trade were found in bylaws, charters and statutes. Besides those there were customs of trade, which were mostly local. New mercantile techniques, becoming widespread in this period, were maritime insurance, bills of exchange and partnerships of merchants. Insolvency became regulated in the sixteenth century. From the 1500s onwards, rights of hospitality for traders and a right of trade were developed in ius gentium writings. However, due to the mostly local customs and legislation, trade across European countries was far from harmonised. Gerald Malynes proposed a universal custom of trade, but he struggled with the combination of ius gentium ideas with the more factual customs of trade. His views nonetheless laid the basis for later categorisations of commercial law as being customary and transnational.
Private employers and their health insurers have come to occupy a central role in access to reproductive care for the majority of Americans through a complex legal infrastructure that effectuates employers’ choices in their employee benefit plans. While some aspects of state insurance law, the Employee Retirement Income Security Act of 1974 (ERISA), the Affordable Care Act (ACA), and anti-discrimination laws encourage employers to cover reproductive care, this web of laws is very porous and predominantly supports employers’ choices. Sometimes, this validation of employer choices expands access to reproductive care services, as in the case of Walmart extending its benefits to cover abortion-related travel expenses in the wake of Dobbs v. Jackson Women’s Health. But employers who wish to restrict access to reproductive care also find their preferences validated by law, as illustrated in Hobby Lobby’s successful bid to refuse coverage for certain contraceptive drugs, despite the ACA’s mandate to cover them. The additional deregulation that employers’ “self-insured” plans enjoy under ERISA preemption, combined with the prevalence of these plans, amplifies these effects. In essence, the availability of funding for reproductive care for the majority of Americans of reproductive age is left to the promises enshrined in employers’ health benefit plans and the incentives that these entities pursue in designing their plans. This chapter untangles the legal web that gives private sector employers this gatekeeper role, and explores the implications of our reliance on employers for individuals’ reproductive freedom.
Algorithmic pricing did not arise in a vacuum but is part of a wider phenomenon of using personal data to profile individuals on the market and make predictions about their preferences and behaviour in future market settings. The potential for price personalization is one of the most important and salient aspects of the wider phenomenon of algorithms and big data analytics that have come to dominate consumer market. The personalization of the contract should not be regarded separately from the personalization of other elements of a market relationship, neither theoretically nor from a practical perspective.
Some fishing vessels breach maritime laws by operating with their mandatory tracking systems (Automatic Identification System (AIS)) switched off. Marine insurers act as enablers of this practice since these vessels cannot operate without insurance. This article explores why insurers in England take on the risk of insuring them and assesses how the insurers are operating against the regulatory framework in doing so. It identifies the solutions that could raise standards in marine insurance and lead to increased legal compliance by the insured vessels. This would consequently enhance maritime safety, while increasing transparency in fisheries across all oceans. Importantly, by discouraging vessels from going dark, any illegal activities underlying the non-transmission of AIS data, such as human, drug or weapon trafficking, illegal fishing or sanctions evasion, would also be curbed.
In this paper, we present experimental evidence on the effect adverse selection has on coverage choices and pricing in corporate insurance markets. Two sets of experimental data, each generated by experiments utilizing a specific parameterization of a corporate insurance decision, are presented to gauge these effects. In the first, subject behavior conforms to a unique equilibrium in which high risk firms choose higher coverage and contracts are priced accordingly. Insurers act competitively and convergence to equilibrium behavior is marked. In the second set, there is little evidence that subject behavior is consistent with either of the two equilibrium outcomes supported by the experimental setting—pooling by fully insuring losses and pooling by self insuring.
We conduct a framed field experiment in rural Ethiopia to test the seminal hypothesis that insurance provision induces farmers to take greater, yet profitable, risks. Farmers participated in a game protocol in which they were asked to make a simple decision: whether or not to purchase fertilizer and if so, how many bags. The return to fertilizer was dependent on a stochastic weather draw made in each round of the game. In later rounds a random selection of farmers made this decision in the presence of a stylized weather-index insurance contract. Insurance was found to have some positive effect on fertilizer purchases. Purchases were also found to depend on the realization of the weather in the previous round. We explore the mechanisms of this relationship and find that it may be the result of both changes in wealth weather brings about, and changes in perceptions of the costs and benefits to fertilizer purchases.
We propose the use of Bayesian estimation of risk preferences of individuals for applications of behavioral welfare economics to evaluate observed choices that involve risk. Bayesian estimation provides more systematic control of the use of informative priors over inferences about risk preferences for each individual in a sample. We demonstrate that these methods make a difference to the rigorous normative evaluation of decisions in a case study of insurance purchases. We also show that hierarchical Bayesian methods can be used to infer welfare reliably and efficiently even with significantly reduced demands on the number of choices that each subject has to make. Finally, we illustrate the natural use of Bayesian methods in the adaptive evaluation of welfare.
Section 13A of the Insurance Act 2015 implies a term into every insurance contract that if the assured makes a claim under the contract, the insurer must pay any sums due in respect of the claim within a “reasonable time”. It provides contractual remedies, such as damages, in the event of breach. To date, a breach of section 13A has been pleaded in two cases which have resulted in judgments – Quadra Commodities S.A. v XL Insurance Co. S.E. and others [2022] EWHC 431 (Comm) and Delos Shipholding S.A. and others v Allianz Global Corporate and Specialty S.E. and others (“Win Win”) [2024] EWHC 719 (Comm) – and in each case the section 13A claim failed. Informed by the understanding of section 13A adopted in these two cases, this paper suggests that section 13A largely is symbolic. To this end, it considers three points and argues that two of these hinder the efficacy of section 13A.
This paper extends previous research on using quantum computers for risk management to a substantial, real-world challenge: constructing a quantum internal model for a medium-sized insurance company. Leveraging the author’s extensive experience as the former Head of Internal Model at a prominent UK insurer, we closely examine the practical bottlenecks in developing and maintaining quantum internal models. Our work seeks to determine whether a quadratic speedup, through quantum amplitude estimation can be realised for problems at an industrial scale. It also builds on previous work that explores the application of quantum computing to the problem of asset liability management in an actuarial context. Finally, we identify both the obstacles and the potential opportunities that emerge from applying quantum computing to the field of insurance risk management.
The theme of the 2024 Business History Conference was “doing business in the public interest,” but what does it actually mean to “do business in the public interest?” This presidential address challenges the idea of shareholder primacy as the main purpose of business enterprises historically and examines various ways that business historians might approach the idea of businesses acting in a public interest. In particular, it analyzes instances in which corporations made a decision in the public interest without clear evidence that it would benefit their bottom line; cases where it would demonstrably hurt their bottom line to prioritize the public; corporations that made a decision allegedly in the public interest that actually turned out to be bad for the public interest; and corporations that made a decision that was bad for the public interest that also turned out to be bad for their own bottom line.
The (re)insurance industry is maturing in its ability to measure and quantify Cyber Risk. The risk and threat landscapes around cyber continue to evolve, in some cases rapidly. The threat actor environment can change, as well as the exposure base, depending on a variety of external factors such as political, economic and technological factors. The rapidly changing environment poses interesting challenges for the risk and capital actuaries across the market. The ability to accurately reflect all sources of material losses from cyber events is challenging for capital models and the validation exercise. Furthermore, having a robust enterprise risk management (ERM) framework supporting the business to evaluate Cyber Risk is an important consideration to give the board comfort that Cyber Risk is being effectively understood and managed by the business. This paper discusses Cyber Risk in relation to important risk and capital model topics that actuaries should be considering. It is challenging for the capital models to model this rapidly changing risk in a proportionate way that can be communicated to stakeholders. As model vendors continue to mature and update models, the validation of these models and the ultimate cyber capital allocation is even more complex. One’s view of risk could change rapidly from year to year, depending on the threat or exposure landscape as demonstrated by the ransomware trends in recent years. This paper has been prepared primarily with General Insurers in mind. However, the broader aspects of capital modelling, dependencies and ERM framework are relevant to all disciplines of the profession.