The article below, by Nicky Stokes, Head of Management Liability and Financial Institutions at New Dawn Risk, was originally published in Middle East Insurance Review in May 2021.
There are signs that significant changes are afoot in the litigation environment in the Middle East – and this could have an impact on the directors and officers insurance market.
The market for directors and officers (D&O) insurance in the Middle East is in something of a state of flux. Historically, regional demand for the product has been relatively limited due in part to the proliferation of large, affluent, family-owned private companies in the area who have simply not seen the need for this type of risk transfer solution. With demand for D&O insurance low, pricing of the product has been relatively cheap, and it has been viewed as something that is a nice-to-have rather than a necessity.
Furthermore, the litigation environment – a potential key driver for claims to be brought against directors and officers – has been comparatively benign in the Middle East. However, there are signs that significant changes are afoot.
Regulatory developments
Up until recently, there had been a patchwork of litigation regulation across this region. But as Middle East states look to align with global standards and reporting requirements, the regulatory burden is increasing. In Saudi Arabia there is a massive drive to regulate the financial services industry as part of the government’s National Transformation Plan 2020 and Saudi Vision 2030, designed to reduce the kingdom’s dependence on oil, diversify its economy, and develop public service sectors. One key development – among a string of reforms under Vision 2030 – was the introduction of a Bankruptcy Law in 2018, to further encourage the participation of foreign and domestic investors by structuring the business legal framework and putting new regulations around businesses operating in the kingdom. This is having a direct effect on directors and officers as it makes it much easier to identify where obligations have not been met. Where duties are codified into law, it is much more straightforward to bring a claim.
In October 2020, the UAE government made various changes to its Bankruptcy Law to similar effect. In another development in December 2017, one which marked a first for the region, the Capital Market Authority in Saudi Arabia introduced a new class action regime for claims by shareholders of listed companies in the country. Last year, the first lawsuit filed under the regime was brought against the former board of directors of Al-Mojil Group, its senior management and its auditor for alleged violations committed during the subscription in the company’s shares as part of its 2008 IPO. We should expect more to follow.
Claims drivers
In fact, the last few years have seen an increase in regulatory investigations across the region, which has changed the claims landscape for the directors and officers of Middle Eastern companies. Criminal or regulatory actions increasingly relate to allegations of financial irregularities or accounting misstatements. There has also been an increase in investigations into alleged fraud, money laundering and embezzlement by directors and officers.
Indeed, the wide range of D&O claims drivers that is apparent the world over is increasingly present in the Middle East. These include investor claims of mismanagement against executives of companies in distress to those that stem from criminal or regulatory action against the directors and officers. We have also seen claims stemming from third parties such as private equity investors alleging financial irregularities prior to their investment. And civil claims have arisen against board management individuals for alleged financial wrongdoing where the company has been unable to repay debt to a lender.
An international market
Meanwhile, recent events have underlined the global nature of the insurance market. A combination of increasing litigation and regulatory risks, more notifications, and profit pressures following years of premium reductions are prompting underwriters to carefully manage the capital they deploy for D&O risks. TI1is has diminished insurer competition fo1· buyers and resulted in higher rates and less favourable coverage terms for most buyers.
Rates for D&O insurance have been hardening significantly in the UK, and latterly in the US, for some time. But prices in the Middle East have followed suit. Increases at renewals are now starting at a minimum of 20% and can rise into triple-digits. Because the D&O market comprises a large number of international insurers, price changes in the region are being driven from a top-down perspective. Those international insurers that have been hit hard in terms of losses, in the UK and US for example, are looking to remediate their books elsewhere.
As insurers’ appetite for D&O has diminished, this has led to a reduction in capacity. For example, an insurer that used to underwrite around $60m of Middle East D&O may now do no more than $10m. Last year we saw placements of $10m on the primary layer and $1Sm on the excess for D&O insurance. This year, placements dropped to around just $2m on the primary and $Sm on the excess.
These factors have led to some difficult conversations and pushback from buyers at renewals this year. For example, an insured who bought $75m worth of cover last year might have got a third of that for the same price. This has always been a price-sensitive market and, as a result, people are buying less cover than they have done in the past. We are starting to see a number of businesses that are clearly underinsured for the exposures that their directors and officers are facing, a trend which may store up trouble for the future.
Interesting times ahead
Looking ahead, the risks facing directors and officers in the Middle East are broadly in line with those that their counterparts are exposed to elsewhere in the world. Cyber is high on the agenda and there are a number of recent cyber events in Saudi Arabia that have hit both government ministries and petrochemical firms, generating significant losses with the potential to impact the D&O market. Saudi Aramco has seen an increase in attempted cyber attacks since the final quarter of 2019, which the company has so far successfully countered. However, the increasing magnitude and frequency of these incidents is a trend that is only expected to worsen over time.
It is unclear at this early stage, but it is likely that we will also see a string of claims against directors and officers as a result of the coronavirus pandemic. The situation is still evolving, but businesses in the Middle East and elsewhere should brace themselves for a likely flood of shareholder lawsuits. We have seen some massive share price drops, and if investors feel they were not fully informed about supply chain vulnerabilities or distribution problems they may choose to litigate. While there is no guarantee that these claims will be upheld, there is a potentially significant exposure to directors and officers in terms of defence costs.
Emerging risks
Potentially an even bigger pandemic-related threat to directors and officers in the Middle East and elsewhere is the ongoing recession. With the near-term economic and political outlook remaining uncertain, D&O claims resulting from company insolvency are likely to increase. Insolvency rates had already been increasing in certain regions prior to the pandemic due to slowing global trade and political threats.
Meanwhile, with COVID-19 vaccines finally being rolled out, dealmakers are hoping for an economic rebound and are targeting vulnerable or attractive assets. There has been a dramatic increase in the number of special purpose access companies – listed vehicles that are pre-funded by backers and set up ready to acquire a portfolio of businesses that look ripe for investment – and blank cheque companies. Anyone and everyone are looking to raise funds, which could lead to bad deals being negotiated and agreed in a rush to market. With rushed deals comes a very high chance of failure – leading to an uptick in D&O claims.
This would, without doubt, prolong the hard market cycle already being experienced, which could continue for another 24 months. Underwriters, brokers and insurance buyers are trackirig D&O developments in the Middle East closely. There could be tough times ahead.
