2021年董事及高管责任保险调查报告（英）-44页_1mb

D&O Liability Survey 2021 Summary

Core Content

The D&O Liability Survey 2021 is a comprehensive report analyzing the risks and concerns faced by Directors and Officers (D&O) in the context of the global impact of the COVID-19 pandemic and the evolving legal and regulatory landscape. The report is a collaborative effort between Willis Towers Watson and Clyde & Co LLP, drawing insights from respondents across multiple regions including the UK, US, Australia, Netherlands, and Spain.

Main Contributors

• Clyde & Co LLP:

  • Richard Berkahn, David Amentas, Laura Cooke, James Cooper, Reece Corbett-Wilkins, Edward (Ned) Kirk, Avryl Lattin, David Lee

• Willis Towers Watson:

  • Talene Carter, Ben Di Marco, Angus Duncan, Charlotte Gill, Rob Greenwood, Ulysses Grundey, Eve Richards, Kevin van't Wout, John Orr, Mandip Sagoo, John Moran, Travis Luk, Richard Multon, Jacinta Studdert, Michael Tooma, Crispin Marriott

Key Findings

The survey highlights the top 5 D&O risks as follows:

1. Cyber-attack
2. Data loss
3. Regulatory risk (including threat of fines and penalties)
4. Risk of health and safety / environmental prosecutions
5. Risk of employment claims

These risks have remained consistent over the past few years, with cyber-attack and data loss frequently in the top two. The report notes that cyber risks have increased significantly due to the shift to remote working during the pandemic, making them more pressing than ever.

Regional Analysis

• Cyber-attack and data loss are the most significant risks in the US, UK, and Australia, with cyber-attack ranked as the top risk in the US and data loss in the UK and Australia.
• Regulatory risk is a top concern in APAC and Europe, with Australia and the UK particularly focused on corporate governance, privacy, and data protection.
• Employment claims are a growing concern in Australia and the US, with US respondents rating it as 45% significant, placing it as joint 3rd in the US top 5, while it is 5th globally at 38%.

Impact of the Pandemic

• The pandemic has heightened cyber risks, as companies moved to remote operations, creating vulnerabilities for cyber-attacks.
• Despite expectations of a surge in insolvency cases, the survey found insolvency is not a top concern for most respondents, possibly due to government support measures like furlough and changes in wrongful trading laws.
• Corporate culture and whistleblowing have become more prominent, with #MeToo and other movements influencing employment practices and litigation.

D&O Insurance Market Trends

• The D&O insurance market is experiencing a hard market, with increased rates and retentions.
• Securities class actions remain a major driver of D&O losses, even though they are not always rated as top risks by respondents.
• US respondents show less concern about shareholder actions, with 50% rating them as not at all significant or somewhat significant, while 50% see them as significant, very significant, or extremely significant.
• APAC and Australia are seeing increased regulatory scrutiny, especially in areas like privacy, data protection, and industrial relations.

Legal and Regulatory Developments

• In England & Wales, new laws and regulations such as the Pensions Act 2021, TCFD reporting requirements, and audit and governance reforms are increasing director obligations.
• In Australia, the High Court has expanded the definition of "officers", potentially increasing regulatory exposure.
• The UK Supreme Court has ruled that parent companies can be liable for damage caused by their subsidiaries, increasing the risk of forum shopping and group litigation.
• GDPR and the UK GDPR have strengthened individual data rights, leading to more regulatory actions and civil claims.

Conclusion

The D&O Liability Survey 2021 underscores the increasing complexity of director and officer liabilities in the wake of the pandemic and regulatory changes. It emphasizes the need for robust governance, cyber resilience, and adapting D&O insurance policies to reflect the evolving risk landscape. The report also highlights the importance of understanding and addressing employment practices, regulatory compliance, and the potential for large-scale litigation across different jurisdictions.