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Emerging Risk Report Q2 2018
July 05, 2018
XL Catlin’s Emerging Risk Task Force actively monitors a wide array of emerging risks to provide our underwriters, as well as clients, with pertinent information regarding new and existing emerging risks. This quarterly report provides key highlights and developments for the emerging risks that are generating notable activity and media attention.
- With the arrival of the General Data Protection Regulation (GDPR), insurers are faced with managing their own compliance, as well as managing exposure to insureds now required to follow more stringent data protection laws.
- GDPR requires any company that does business with EU residents or has EU employees to follow specific obligations relating to the processing, retention, usage and reporting of personal data.
- While data privacy laws in the EU existed prior to GDPR, these are significant in their requirements and potential fines and penalties against organizations failing to adequately comply to its laws.
- Organizations in breach of GDPR can receive penalties up to the greater of EUR20m or 4% of a company’s total worldwide revenues of the preceding year – depending on the type and severity of the violation.
- From an insurance perspective, there is some uncertainty regarding how well insurance buyers are compliant. Generally, standalone cyber policies could offer some type of coverage for regulatory mitigation in the form of associated fines and penalties. There is also potential exposure for directors and officers, should it be proven that failure to comply was a result of the D&Os oversight or negligence.
Read more about GDPR on Fast Fast Forward including these articles: Count-down: New rules on data protection across Europe and The Impact of GDPR: EU data protection meets US-based businessThird-party litigation funding
- Litigation funding is a practice that provides financing to a litigant and law firms to pursue a lawsuit, in exchange for a portion of any settlement or judgement award.
- The practice continues to grow, primarily in Australia, UK and the US. In the US, there is growing pressure for increased transparency and disclosure in court cases.
- Primary concerns of this practice for defendants and their insurers are:
- Increased litigation and claims costs
- Prolonged litigation
- Lack of control of litigation
- Potential conflicts of interest
- Funders and their motives vary. Increasingly funding companies operate similar to venture capitalists – seeking and vetting lawsuits with the highest return potential and sometimes in creative ways.
- In the US, the federal judiciary is considering whether courts should require civil cases to disclose third party financing deals. Pending that decision courts remain divided on disclosure of these arrangements. In Australia, the rise of securities class actions in recent years is being tied to the increased involvement of third party litigation funders driving major class actions. In response, Australian regulators are looking into class actions, investigating the role of litigation funding and potential considerations for any changes or rules affecting securities litigation.
- Development of nanotechnology and its applications and uses across most industries continues at an accelerated rate – in spite of concerns over its impact on human health.
- Several organizations have raised concerns over the possible health risks of nanotechnology, particularly related to occupational inhalation of certain fibers such as titanium dioxide, carbon nanotubes, and carbon nanofibers.
- Globally, regulators continue to take action to increase awareness and transparency of companies using nanomaterials in consumer products.
- In January 2018, the European Food Safety Authority released a draft guidance that, in part, lays out a plan for assessing and testing the safety of nanomaterials in food / animal feed, in order to determine its applicability with EU food laws. This indicates a desire to monitor nanomaterial use in foods in the EU.
- While the US Food and Drug Administration (FDA) has not yet taken a position on regulation of nanotechnology, it has issued guidance on evaluation of drugs and biologics containing nanomaterials or created using nanotechnology. In previous years, they have published similar guidance on food and cosmetics.
- This remains an important area for the industry to watch as the body of science is increasingly trying to identify linkage between injury and exposure to nanoparticles. Read more about the FDA’s stance on nanotechnology on Fast Fast Forward