下面为大家整理一篇优秀的essay代写范文- Director's liability insurance market in the United States,供大家参考学习,这篇论文讨论了美国的董事责任保险市场。在20世纪80年代,美国的董事责任保险市场爆发了一场严重的危机。危机爆发后,许多保险公司在销售董事责任保险时采取了诸多的限制措施,一些保险公司甚至彻底退出了董事责任保险市场。在这种情况下,美国各州分别采取制定法和非制定法的方法来应对董事责任保险市场的危机,并取得了一定的成效。
In the 1980s, there was a serious crisis in the American directors' liability insurance market. After the outbreak of the crisis, many insurance companies took a lot of restrictive measures in selling director's liability insurance, and some insurance companies even completely withdrew from the market of director's liability insurance. In this case, American states adopted the methods of statutory law and non-statutory law respectively to deal with the crisis of directors' liability insurance market and achieved certain results. Although China's director's liability insurance market has not yet reached the scale of the United States, there is no doubt that the crisis of the American director's liability insurance market and its countermeasures have great significance for the development of China's director's liability insurance market.
After the 1970s, the market demand for directors' liability insurance in the United States kept heating up, and some insurance companies that did not originally operate directors' liability insurance also launched this kind of insurance business one after another, which made the market scale of directors' liability insurance continuously increase. In this case, many insurance companies in order to compete for market share, constantly reduce premiums and expand coverage. After some time, the rate of directors' liability insurance fell to the lowest point in history. During this period, however, the number of claims against directors and officers continued to increase. According to the results of a survey of 917 companies in the United States and Canada, the number of claims against directors and officers increased by 58% in 1984 compared with 1980. While Banks, petrochemicals, steel, insurance and computers are among the most heavily litigated industries, others have been hit hard. The unprecedented increase in the number of lawsuits against directors and senior staff directly led to the increasing amount of directors' liability insurance claims, which often reached millions of dollars. Even if the insured reached a settlement with a third party, the insurance company had to pay a large amount of settlement fees. For example, in 1984, the average compensation or settlement cost per case was $1.3 million and the average defence cost was $461,000, an increase of approximately 69 per cent compared with 1980.
With the rapid increase of the number of lawsuits filed by directors and the continuous increase of the claim amount, many companies selling directors' liability insurance gradually feel inadequate. In order to reduce the operational risk, they have to expand the deductible of insurance contract and reduce the compensation limit of insurance contract. From 1984 to 1987, for example, the deductibles on directors' liability insurance contracts grew by 44 per cent a year. At the same time, the compensation limit of director liability insurance contract is also decreasing. In the first quarter of 1986 alone, the limit on directors' liability insurance contracts fell by 50%, according to a report by Wyatt. With the decrease of the limit of indemnity in the insurance contract, the directors' liability insurance premium is rising successively. From 1985 to 1986, the premiums of about 80% of the companies' renewal policies began to rise, and about half of the insurance companies' premiums increased by more than 200%. Some insurance companies even increased the premiums by 15 to 20 times. As a result, many companies, especially small and medium-sized ones, simply cannot afford the huge premiums. Therefore, many companies have to reduce the amount of directors' liability insurance they buy or even give up the insurance completely. The decline in purchasing power further worsened the operating conditions of those companies selling director's liability insurance, and many companies gradually withdrew from the director's liability insurance market due to the consideration of operating costs. As a result, many companies in urgent need of director's liability insurance to disperse the risk of operator's liability cannot obtain director's liability insurance at normal prices, which triggered the crisis in the American director's liability insurance market, and thus produced a series of effects.
At present, China's director's liability insurance market is in the initial stage of development. Although there is still a considerable gap between the size of the market and that of the United States, the crisis of the American director's liability insurance market and its countermeasures have great inspiration and reference significance for the healthy and stable development of China's director's liability insurance market.
The crisis in the American directors' liability insurance market does not arise out of thin air, but has its profound social and legal background, which is mainly reflected in the following four aspects.
In the daily operation and management of a company, the risk of lawsuits against directors and senior staff comes from various sources, including shareholders, creditors, liquidators, receiver, government regulators, employees, customers, consumers and even the general public. In the United States in the 1980s, the number of directors and senior staff suffering from claims litigation increased dramatically, mainly due to the following three reasons.
The boom in the us stock market in the 1980s led to a boom in new share offerings, particularly in the technology sector. Due to the strong legal consciousness of American investors and the prevalence of litigation, once the price of a new issue falls, investors will quickly file a lawsuit under the federal securities and exchange act to seek compensation. As a result, many scholars attribute the surge in shareholder lawsuits in 1985 to an increase in the number of new issues. With the increasing number of shareholder lawsuits, the probability of insurance companies to pay insurance compensation increases gradually, thus setting the stage for the outbreak of the crisis of directors' liability insurance market.
With the prosperity and development of the stock market, the number and scale of mergers and acquisitions in the capital market have been increasing since the 1980s due to the influence of the financial and legal environment and the prosperity and development of the stock market. Representatives from the legal, economic and media circles all believe that the booming m&a market is one of the reasons for the outbreak of directors' liability insurance crisis. In the process of enterprise merger and acquisition, shareholders may file huge claims against directors and senior staff for opposing the conditions of merger and acquisition, or believing that the company did not disclose relevant information in the process of merger and acquisition, or believing that the directors of the acquired company took hostile actions to resist merger and acquisition.
During this period, bankruptcies continued to occur, with a much higher rate of bankruptcies among oil companies and Banks than among other companies, especially those with a high percentage of loans. The increase in the number of bankrupt enterprises has a direct impact on the insurance companies, because the receiver and creditors usually file lawsuits to seek relief from the directors and senior staff of the bankrupt enterprises, which to some extent also increases the risk of directors' liability insurers' compensation.
In the United States, with the continuous development of economy, the shareholder derivative litigation against directors of the number of cases is increasing, but according to the provisions of the business judgment principle, the director of the breach of duty of care, thereby causing loss to the company, if the director and the decision-making matters not interested, involved a legitimate reason to believe that their business decisions are made on the basis of collecting enough information, and there is reason to believe that its business decisions in the company's best interests, the director of business negligence can get the protection of the business judgment rule, court does not usually director shall bear the liability for compensation. However, in the case of Smith v. Gorkom in 1985, the Delaware Supreme Court bypassed the business judgment rule and ruled that the directors of Trans Union company should be liable to shareholders. The judgment makes the applicable standard of operating judgment principle more strict and increases the operating cost of insurance companies selling directors' liability insurance to a certain extent.
The shrinking of the reinsurance market is a key factor leading to the outbreak of the crisis in the directors' liability insurance market, because most companies selling directors' liability insurance will sign reinsurance contracts, and the signing of reinsurance contracts can greatly reduce the compensation risk of insurance companies. In fact, since the 1970s, American insurance companies began to compete with British insurance companies in the field of director's liability insurance. With the support of European reinsurance companies, many inexperienced American companies also entered the market of director's liability insurance. However, in the mid-1980s, with the increasing business risks of reinsurance companies, the worldwide reinsurance market was seriously affected and began to shrink. Owing to the directors liability insurance reinsurance is original underwriter and reinsurance person alone the result of the negotiation, so this kind of insurance are more easily affected by reinsurance market, once the reinsurance market crisis, many directors liability insurer because unable to obtain appropriate reinsurance contract, also had to give up the sales director liability insurance plan.
In the process of interpreting directors' liability insurance contracts, courts usually tend to assign liability risks to insurance companies. For example, in the course of the trial of the directors' liability insurance case, the court will usually require the insurance company to pay the defense fee to the insured, even though the said fee may not be included in the indemnity of the policy. When the insured goes bankrupt, the court will usually limit the exercise of the right of rescission of the insurance company. In addition, if the policy does not specify the scope of the insured, the court's interpretation will normally include the litigation suffered by the outside directors in the coverage of the policy.
Directors liability insurance market in the United States, the United States government and insurance companies have adopted a series of measures to cope with the crisis of directors liability insurance market and tried to alleviate the negative effects brought by crisis, comprehensive view, these measures can be divided into two categories: basic approach and the enacted law enacted law approach.
Influenced by the case of Smith v. Gorkom, some state legislatures began to reconsider how to reasonably hold directors responsible for business while looking for a solution to the crisis of directors' liability insurance market. For example, under section 102, paragraph 8, of the Delaware companies act, a company may amend its articles of association and add provisions limiting or exempting directors from liability. At the same time, this section also provides exceptions to limit or exempt the liability of directors, that is, the liability for compensation arising from the breach of duty of loyalty, malicious misconduct, intentional violation of the law and the pursuit of personal interests shall not be limited or exempted.
Corporate legislation now authorizes companies in all 50 states to compensate directors and officers. Many scholars believe that directors and officers alike with others will inevitably make some mistakes, the causes of these errors is because of not fully predictive of future events, and is not due to the directors and officers failed to perform as a common industry managers should have the obligation to the attention of the results. Therefore, the directors and officers of the company believe that the company should compensate them for the compensation and defense costs incurred in the lawsuit, only in this way can it be in the spirit of fairness and justice.
In the wake of the crisis in the directors' liability insurance market, many American states have expanded the right of directors and officers to receive compensation from companies by modifying their compensation schemes. Missouri and New York, for example, offer more flexible compensation. In accordance with sections 351 and 355 of the Missouri companies act, the state has no restrictions on compensation for liability arising out of ACTS of good faith and ACTS carried out in the best interests of the company. New York's corporate law also provides directors with wide scope for compensation. Under section 721 of the New York state companies act, a company may provide compensation to directors and officers for ACTS that are not malicious, dishonest, or otherwise of unlawful personal benefit.
Another way to deal with the crisis in the directors' liability insurance market is to reform and regulate the insurance industry itself. In Virginia, for example, there was a reform to regulate the behavior of insurance companies. According to the provisions of Virginia law, insurance companies must inform the insured of the termination of the contract of directors' liability insurance some time in advance, which is intended to give the insured sufficient preparation time, thus protecting the legal rights and interests of the insured.
However, unexpectedly, the approach taken by Virginia to eliminate the directors' liability insurance crisis did not achieve the expected effect, but had the opposite effect. Though restricted the state promulgated the provisions of the insurance company to remove directors liability insurance contract shall take effect on June 1, 1987, in response to these measures, however, in the state registration of most insurance companies to cover the company issued a notice, the notice stated, the sales director liability insurance contract will be on May 31, 1986 is lifted.
The Virginia legislation and the insurance companies' response illustrate an important fact: when the state legislature passes laws affecting insurance companies, insurance companies will not remain silent. On the contrary, insurance companies have enough strength to resist the restrictive legislation of state legislatures, which greatly hinders the state government's plan to eliminate the crisis of directors' liability insurance market by directly regulating the insurance industry.
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In the 1980s, there was a serious crisis in the American directors' liability insurance market. After the outbreak of the crisis, many insurance companies took a lot of restrictive measures in selling director's liability insurance, and some insurance companies even completely withdrew from the market of director's liability insurance. In this case, American states adopted the methods of statutory law and non-statutory law respectively to deal with the crisis of directors' liability insurance market and achieved certain results. Although China's director's liability insurance market has not yet reached the scale of the United States, there is no doubt that the crisis of the American director's liability insurance market and its countermeasures have great significance for the development of China's director's liability insurance market.
After the 1970s, the market demand for directors' liability insurance in the United States kept heating up, and some insurance companies that did not originally operate directors' liability insurance also launched this kind of insurance business one after another, which made the market scale of directors' liability insurance continuously increase. In this case, many insurance companies in order to compete for market share, constantly reduce premiums and expand coverage. After some time, the rate of directors' liability insurance fell to the lowest point in history. During this period, however, the number of claims against directors and officers continued to increase. According to the results of a survey of 917 companies in the United States and Canada, the number of claims against directors and officers increased by 58% in 1984 compared with 1980. While Banks, petrochemicals, steel, insurance and computers are among the most heavily litigated industries, others have been hit hard. The unprecedented increase in the number of lawsuits against directors and senior staff directly led to the increasing amount of directors' liability insurance claims, which often reached millions of dollars. Even if the insured reached a settlement with a third party, the insurance company had to pay a large amount of settlement fees. For example, in 1984, the average compensation or settlement cost per case was $1.3 million and the average defence cost was $461,000, an increase of approximately 69 per cent compared with 1980.
With the rapid increase of the number of lawsuits filed by directors and the continuous increase of the claim amount, many companies selling directors' liability insurance gradually feel inadequate. In order to reduce the operational risk, they have to expand the deductible of insurance contract and reduce the compensation limit of insurance contract. From 1984 to 1987, for example, the deductibles on directors' liability insurance contracts grew by 44 per cent a year. At the same time, the compensation limit of director liability insurance contract is also decreasing. In the first quarter of 1986 alone, the limit on directors' liability insurance contracts fell by 50%, according to a report by Wyatt. With the decrease of the limit of indemnity in the insurance contract, the directors' liability insurance premium is rising successively. From 1985 to 1986, the premiums of about 80% of the companies' renewal policies began to rise, and about half of the insurance companies' premiums increased by more than 200%. Some insurance companies even increased the premiums by 15 to 20 times. As a result, many companies, especially small and medium-sized ones, simply cannot afford the huge premiums. Therefore, many companies have to reduce the amount of directors' liability insurance they buy or even give up the insurance completely. The decline in purchasing power further worsened the operating conditions of those companies selling director's liability insurance, and many companies gradually withdrew from the director's liability insurance market due to the consideration of operating costs. As a result, many companies in urgent need of director's liability insurance to disperse the risk of operator's liability cannot obtain director's liability insurance at normal prices, which triggered the crisis in the American director's liability insurance market, and thus produced a series of effects.
At present, China's director's liability insurance market is in the initial stage of development. Although there is still a considerable gap between the size of the market and that of the United States, the crisis of the American director's liability insurance market and its countermeasures have great inspiration and reference significance for the healthy and stable development of China's director's liability insurance market.
The crisis in the American directors' liability insurance market does not arise out of thin air, but has its profound social and legal background, which is mainly reflected in the following four aspects.
In the daily operation and management of a company, the risk of lawsuits against directors and senior staff comes from various sources, including shareholders, creditors, liquidators, receiver, government regulators, employees, customers, consumers and even the general public. In the United States in the 1980s, the number of directors and senior staff suffering from claims litigation increased dramatically, mainly due to the following three reasons.
The boom in the us stock market in the 1980s led to a boom in new share offerings, particularly in the technology sector. Due to the strong legal consciousness of American investors and the prevalence of litigation, once the price of a new issue falls, investors will quickly file a lawsuit under the federal securities and exchange act to seek compensation. As a result, many scholars attribute the surge in shareholder lawsuits in 1985 to an increase in the number of new issues. With the increasing number of shareholder lawsuits, the probability of insurance companies to pay insurance compensation increases gradually, thus setting the stage for the outbreak of the crisis of directors' liability insurance market.
With the prosperity and development of the stock market, the number and scale of mergers and acquisitions in the capital market have been increasing since the 1980s due to the influence of the financial and legal environment and the prosperity and development of the stock market. Representatives from the legal, economic and media circles all believe that the booming m&a market is one of the reasons for the outbreak of directors' liability insurance crisis. In the process of enterprise merger and acquisition, shareholders may file huge claims against directors and senior staff for opposing the conditions of merger and acquisition, or believing that the company did not disclose relevant information in the process of merger and acquisition, or believing that the directors of the acquired company took hostile actions to resist merger and acquisition.
During this period, bankruptcies continued to occur, with a much higher rate of bankruptcies among oil companies and Banks than among other companies, especially those with a high percentage of loans. The increase in the number of bankrupt enterprises has a direct impact on the insurance companies, because the receiver and creditors usually file lawsuits to seek relief from the directors and senior staff of the bankrupt enterprises, which to some extent also increases the risk of directors' liability insurers' compensation.
In the United States, with the continuous development of economy, the shareholder derivative litigation against directors of the number of cases is increasing, but according to the provisions of the business judgment principle, the director of the breach of duty of care, thereby causing loss to the company, if the director and the decision-making matters not interested, involved a legitimate reason to believe that their business decisions are made on the basis of collecting enough information, and there is reason to believe that its business decisions in the company's best interests, the director of business negligence can get the protection of the business judgment rule, court does not usually director shall bear the liability for compensation. However, in the case of Smith v. Gorkom in 1985, the Delaware Supreme Court bypassed the business judgment rule and ruled that the directors of Trans Union company should be liable to shareholders. The judgment makes the applicable standard of operating judgment principle more strict and increases the operating cost of insurance companies selling directors' liability insurance to a certain extent.
The shrinking of the reinsurance market is a key factor leading to the outbreak of the crisis in the directors' liability insurance market, because most companies selling directors' liability insurance will sign reinsurance contracts, and the signing of reinsurance contracts can greatly reduce the compensation risk of insurance companies. In fact, since the 1970s, American insurance companies began to compete with British insurance companies in the field of director's liability insurance. With the support of European reinsurance companies, many inexperienced American companies also entered the market of director's liability insurance. However, in the mid-1980s, with the increasing business risks of reinsurance companies, the worldwide reinsurance market was seriously affected and began to shrink. Owing to the directors liability insurance reinsurance is original underwriter and reinsurance person alone the result of the negotiation, so this kind of insurance are more easily affected by reinsurance market, once the reinsurance market crisis, many directors liability insurer because unable to obtain appropriate reinsurance contract, also had to give up the sales director liability insurance plan.
In the process of interpreting directors' liability insurance contracts, courts usually tend to assign liability risks to insurance companies. For example, in the course of the trial of the directors' liability insurance case, the court will usually require the insurance company to pay the defense fee to the insured, even though the said fee may not be included in the indemnity of the policy. When the insured goes bankrupt, the court will usually limit the exercise of the right of rescission of the insurance company. In addition, if the policy does not specify the scope of the insured, the court's interpretation will normally include the litigation suffered by the outside directors in the coverage of the policy.
Directors liability insurance market in the United States, the United States government and insurance companies have adopted a series of measures to cope with the crisis of directors liability insurance market and tried to alleviate the negative effects brought by crisis, comprehensive view, these measures can be divided into two categories: basic approach and the enacted law enacted law approach.
Influenced by the case of Smith v. Gorkom, some state legislatures began to reconsider how to reasonably hold directors responsible for business while looking for a solution to the crisis of directors' liability insurance market. For example, under section 102, paragraph 8, of the Delaware companies act, a company may amend its articles of association and add provisions limiting or exempting directors from liability. At the same time, this section also provides exceptions to limit or exempt the liability of directors, that is, the liability for compensation arising from the breach of duty of loyalty, malicious misconduct, intentional violation of the law and the pursuit of personal interests shall not be limited or exempted.
Corporate legislation now authorizes companies in all 50 states to compensate directors and officers. Many scholars believe that directors and officers alike with others will inevitably make some mistakes, the causes of these errors is because of not fully predictive of future events, and is not due to the directors and officers failed to perform as a common industry managers should have the obligation to the attention of the results. Therefore, the directors and officers of the company believe that the company should compensate them for the compensation and defense costs incurred in the lawsuit, only in this way can it be in the spirit of fairness and justice.
In the wake of the crisis in the directors' liability insurance market, many American states have expanded the right of directors and officers to receive compensation from companies by modifying their compensation schemes. Missouri and New York, for example, offer more flexible compensation. In accordance with sections 351 and 355 of the Missouri companies act, the state has no restrictions on compensation for liability arising out of ACTS of good faith and ACTS carried out in the best interests of the company. New York's corporate law also provides directors with wide scope for compensation. Under section 721 of the New York state companies act, a company may provide compensation to directors and officers for ACTS that are not malicious, dishonest, or otherwise of unlawful personal benefit.
Another way to deal with the crisis in the directors' liability insurance market is to reform and regulate the insurance industry itself. In Virginia, for example, there was a reform to regulate the behavior of insurance companies. According to the provisions of Virginia law, insurance companies must inform the insured of the termination of the contract of directors' liability insurance some time in advance, which is intended to give the insured sufficient preparation time, thus protecting the legal rights and interests of the insured.
However, unexpectedly, the approach taken by Virginia to eliminate the directors' liability insurance crisis did not achieve the expected effect, but had the opposite effect. Though restricted the state promulgated the provisions of the insurance company to remove directors liability insurance contract shall take effect on June 1, 1987, in response to these measures, however, in the state registration of most insurance companies to cover the company issued a notice, the notice stated, the sales director liability insurance contract will be on May 31, 1986 is lifted.
The Virginia legislation and the insurance companies' response illustrate an important fact: when the state legislature passes laws affecting insurance companies, insurance companies will not remain silent. On the contrary, insurance companies have enough strength to resist the restrictive legislation of state legislatures, which greatly hinders the state government's plan to eliminate the crisis of directors' liability insurance market by directly regulating the insurance industry.
51due留学教育原创版权郑重声明:原创essay代写范文源自编辑创作,未经官方许可,网站谢绝转载。对于侵权行为,未经同意的情况下,51Due有权追究法律责任。主要业务有essay代写、assignment代写、paper代写、作业代写服务。
51due为留学生提供最好的essay代写服务,亲们可以进入主页了解和获取更多essay代写范文 提供代写服务,详情可以咨询我们的客服QQ:800020041。