Impacts of One-Party Financial Distress to Reinsurance Contract Concluded Between the Ceding Company And The Reinsurer

10.2478/bjlp-2022-007100

Abstract

The reinsurance contract is similar to an insurance contract, but it differs in that it guarantees the risk to which the ceding company (the insurer) is exposed to the risk when it enters into a contract with the insured. This obliges the implementation of all legal rules that apply to regular insurance contracts, the most essential of which are related to reinsurer obligations, which often only include the reinsurer and the ceding company, without the involvement of any other parties. Due to the subjectivity and independence of the reinsurance agreement from the original insurance agreement between the insurer and the insured, it is believed to be a guarantee for the reinsurer's performance of its indemnification obligation in addition to facilitating the method for fulfilling these mandatory responsibilities. These financial rights represent the ceding company's financial rights towards the reinsurer. In addition to the payment of the ceding firm's administrative costs, these duties also include a deposit left with the ceding company and a commission paid for the reinsured policies. Judicial applications have stipulated the obligations on the reinsurer before the insured under the insurance contract (the subject-matter of the reinsurance contract), despite the fact that the latter is foreign to the reinsurance contract, contrary to what the legislation generally says and what is confirmed by jurisprudence in most cases. These judicial applications were based on the provisions of the reinsurance policy that create a kind of indirect relationship between the insured under the insurance contract (the subject-matter of the reinsurance contract) and the reinsurer. This relationship occurs when the ceding company faces financial distress or liquidation, as expressed by Jordan's legislator as the cut-through clause, which means that the reinsurer's relationship with the insured under the insurance contract becomes the subject-matter of the reinsurance contract rather than the ceding company's liquidator. This study dealt with the issue in terms of the impacts of the financial distress of one of the parties to the reinsurance contract on their obligations towards each other and towards the insured under the insurance contract (the subject-matter of the reinsurance contract).  As the legislative purpose in this regard was not clear, the researcher tried to shed light on it and find practical and legal solutions.