D&O in Different Jurisdictions | FAQs

The pre-contract duty to provide information is the duty to give accurate and complete answers to the insurer’s proposal form and underwriting questions, on a good-faith basis; in Brazil, the obligation is generally questionnaire-driven rather than a broad spontaneous duty to volunteer every conceivable material fact. If there is intentional misrepresentation or intentional non-disclosure, cover may be lost; if the issue is non-intentional, the remedy may instead be proportional or contractual, depending on the wording and applicable law.

Late notification of claims or circumstances can prejudice cover where timely notice is a contractual condition, and in claims-made structures it is especially important because the timing of the claim, notice and any notification of circumstances is central to attachment of cover. SUSEP (Brazilian Entity Regulator for Private Insurances) requires claims-made wordings to state clearly when claims, notifications and notices of loss must be presented, and for notification-based wordings it says notifications must be given as soon as the insured becomes aware of relevant potentially harmful facts or circumstances.

The choice of lawyers is usually addressed expressly in the policy, but SUSEP requires the contractual conditions to say whether the insured has free choice of counsel or must use panel/referenced professionals where defence-cost cover is sold. So, the decision is not fixed by law in one direction; under Brazil D&O wordings it is commonly either the insured’s free choice, or free choice subject to insurer consent/rates, or use of approved counsel, depending on the policy.

Yes, policies may cover an insured person’s legal costs connected with investigations, but only if the wording extends defence costs that far. SUSEP permits defence-cost cover, and market commentary in Brazil notes that D&O wordings often respond to judicial, administrative and sometimes investigative defence costs, yet this remains wording-specific and may be narrower for internal, informal or pre-investigative stages.

Policies do not provide final cover for dishonest or intentional wrongful conduct. SUSEP expressly requires mention of the insurer’s right to recoup amounts advanced for defence costs where the damage to third parties resulted from intentional unlawful acts, so policies may advance defence costs first, then seek reimbursement if dishonesty or wilful illegality is established.

Employees are not automatically covered merely because they are employees. They are covered if they fall within the policy’s insured-person definition, such as holding a management role, or if the policy includes a specific extension that brings them within cover.

Policies may cover fines and penalties, but this is optional rather than mandatory. SUSEP Circular 637/2021 expressly permits insurers to offer cover for fines and penalties, yet market commentary also shows continuing sensitivity in Brazil, especially around punitive or regulatory fines, so this point must be checked in the exact wording and any applicable endorsements.

Retired directors are generally capable of being covered because SUSEP’s definition of insured includes persons who “have occupied” the relevant role during the policy period or retroactive period. In practice, cover for retired directors will still depend on the claims-made trigger, the retroactive date, run-off or extended reporting arrangements, and whether the claim relates to acts in the insured capacity.

Since the implementation of the Insurance Act 2015, policyholders have been subject to a duty of fair presentation of the risk, which replaced the former duty of disclosure.  There are many nuances to the legislation (beyond the scope of this article) but, at its heart, it requires a policyholder to provide to insurers all information of which it is (or is deemed) aware that would influence a prudent insurer in determining whether to make an offer of insurance and on what terms, including as to price.

That obligation is not hugely different to the duty of disclosure that was required prior to the Insurance Act.  What is noticeably different is the remedy regime.  Whereas, previously, insurers could always avoid the policy for any breach, they can now only do so if (a) the breach was not deliberate or reckless and the insurer can demonstrate they would not have offered insurance had they known of the fact; or (b) the breach was deliberate or reckless.  If the breach falls within (a), the insurer may be entitled to impose additional terms retrospectively or reduce the sum to be paid for a claim in proportion to the additional premium it would have charged.

It is possible to restrict insurer remedies further, and many D&O policies contain Innocent Non-Disclosure, Avoidance Waiver, or similar clauses that do just that.

If notification is expressed as a condition precedent (either because the policy states that expressly, or because the notification term is interpreted in that way) insurers will be entitled to decline the claim.  If notification is not a condition precedent (and so is a mere condition) insurers will have to prove prejudice caused by late notification, and then can only reduce a claim to the extent they have suffered loss. 

Nonetheless, late notification will almost always make the claim process more difficult from a practical point of view and so prompt notification in all cases is advised.

The policy wording will dictate the choice of lawyers.  It is more common in D&O than some other areas (particularly Professional Indemnity or Errors & Omissions insurance) for the policy to allow the Insured Person to select their own lawyers.  However, that is not universally the case, with some policies requiring the Insured Person to use a pre-approved lawyer (often referred to as an Insurer Panel lawyer) or allowing the insurer to choose the lawyer and take over the defence directly. 

Even where the Insured Person holds the right to appoint a lawyer, costs have to be “reasonable” and insurers are unlikely to agree rates at the top end of the scale unless the claim is particularly large and complex.  It is important to seek insurer consent before appointing a legal team.

Most D&O policies provide cover for lawyer fees in responding to formal regulatory investigations into an Insured Person and appearing at interviews and related hearings. Some policies provide broader cover for less formal inquiries or responding to internal investigations, where legal representation is necessary.  The cover may be sub-limited.

A standard policy will contain a dishonesty exclusion, engaged only once there has been a judicial finding of dishonest conduct or (on some wordings) an admission of such conduct by an Insured Person.  That means an Insured Person accused of dishonesty is entitled to defence costs from insurers unless and until there is such a finding or admission. 

In the event of a finding or admission of dishonesty, the policy would not respond to pay any damages due or the legal costs of the other side (for example).  Insurers may seek recovery of defence costs paid to or on behalf of the Insured Person. 

Most modern policies now extend cover to roles  beyond directors and officers.  Employee cover may be restricted to where acting in a managerial or supervisory capacity, or where named as a defendant in the same claim as a director or officer, or may be totally unrestricted.  Certain senior non-director roles may be covered specifically.

Many (but not all) policies will cover fines and penalties, to the extent those fines and penalties are insurable as a matter of law. English public policy dictates that certain fines and penalties cannot be insured, but the relative lack of case law means what can and cannot be insured is still uncertain. 

Criminal fines are considered by many commentators to be uninsurable, whereas civil fines involving negligence are thought more likely to be insurable.  There is less certainty about something in the middle (a civil fine with a finding of intent) and the fact some criminal fines can be imposed on a strict liability basis means the position on all criminal fines may not be straightforward (if the purpose of the public policy rule is to prevent insurance for deliberate poor conduct).

One of the bodies that most frequently imposes fines on directors and officers, and other senior personnel, is the Financial Conduct Authority (FCA).  Its fines are specified by FCA rules to be uninsurable.

If a company continues to buy D&O cover, directors that have retired in the normal course of business will continue to be covered under the policy in place at the time a claim is made. 

If a company stops buying D&O cover, there is usually a retired directors extension in the final policy that continues to provide cover for claims made for a period of at least six years (the usual limitation period in England) so long as the alleged conduct forming the basis for the claim took place before the expiry of the policy. However, this extension will usually not apply if the retirement has occurred because of a takeover of the company, or its insolvency.

Under French law, the duty of disclosure is governed by Article L113-2 of the French Insurance Code, which requires the insured to answer accurately the questions asked by the insurer at the underwriting stage.  Unlike common law systems (UK/US), there is no general duty of disclosure requiring insureds to disclose all material facts.

The French system is therefore structured around a pre-contractual questionnaire, making it more objective and protective of the insured. In practice, the effectiveness of this duty depends on the quality and enforceability of the questionnaire.

In cases of fraudulent misrepresentation or intentional non-disclosure of information material to the insurer’s assessment, Article L113-8 applies and the sanction is the nullity of the policy (with retroactive effect).  Where the omission is non-intentional, Article L113-9 applies, and the sanction consists of a proportional reduction of indemnity.

The burden of proof lies with the insurer, which often gives rise to litigation, particularly regarding the clarity and enforceability of the questionnaire and the application of proportional remedies.

Under French law, late notification is only enforceable against the insured if:

• The policy expressly provides for forfeiture of coverage; and
• The insurer can demonstrate actual prejudice resulting from the late notification.

This approach is generally protective of the insured.

In D&O insurance, most French policies operate on a “claims-made” basis (Article L124-5 of the Insurance Code). Therefore, notification is a condition precedent to coverage.

In practice, insurers may attempt to argue prejudice (e.g. inability to properly assess the risk or control the defense strategy), but such prejudice is often difficult to establish.

In France, the appointment of defence counsel is not governed by a single rule but results from a combination of contractual provisions, insurance law, and the principle of free choice of lawyer.

In D&O practice, the defence is generally managed by the insured (typically the director), who freely selects their lawyer subject to insurer approval.  Insurers will closely monitor potential conflicts of interest and costs and typically require fee agreements and detailed invoices. Billing rates and the scope of legal work are often subject to discussion and review with the insurer.

Under French law, D&O policies generally cover legal costs incurred by directors in connection with investigations, but this coverage is strictly framed.  A key condition is that the insured must be personally implicated in an identifiable manner (e.g. formal investigation or summons requiring legal representation).

Where both the company and the director are investigated simultaneously, allocation issues may arise, particularly if the same counsel is appointed.

Under French law, coverage for fraudulent or dishonest conduct is subject to a fundamental principle of public policy: intentional misconduct is uninsurable.  This principle derives from Article L113-1 of the Insurance Code.  As a result, no D&O policy may cover liabilities arising from intentional or fraudulent acts. However, this exclusion only applies upon a final judicial decision.

In practice, defence costs are typically advanced until a final decision is rendered, and insurers rarely seek reimbursement even if intentional misconduct is ultimately established.

Historically, French D&O policies are designed to cover de jure and de facto directors in relation to management liability.

Employees are not generally covered.  However, some policies extend coverage to certain employees, particularly those exercising managerial or supervisory functions, those jointly named in claims with directors, or those expressly included in the definition of de facto directors.

Under French law, fines and penalties of a criminal or punitive nature are uninsurable.

D&O policies expressly exclude such amounts from the definition of covered loss.

The issue of administrative fines is more debated. Although some policies provide specific coverage, the ACPR issued a statement on 18 March 2025 indicating that the indemnification of administrative penalties would likely be contrary to public policy, subject to court interpretation.  As a result, insurers are increasingly reluctant to cover such fines.

French D&O policies typically cover past, present, and future directors.  Coverage therefore extends to former directors, but only for acts performed during their mandate, even if the claim arises after their departure.

If the policy is terminated, coverage may still apply through an extended reporting period.

Under German law, the pre-contractual duty of disclosure is governed by sections 19 of the German Insurance Contract Act (VVG). Accordingly, the policyholder is obligated to answer the insurer’s written questions regarding risk-relevant circumstances fully and truthfully prior to the conclusion of the contract. Unlike some common law jurisdictions, there is generally no broad duty to volunteer information beyond the questions asked.

In the D&O context, this duty is typically proposal-form driven and focuses on matters such as financial condition, prior claims or circumstances, known investigations, insolvency risks, shareholder disputes and compliance issues. The consequences of non-disclosure depend on whether the breach was negligent, grossly negligent or intentional, and range from policy adjustment or proportionate reduction to rescission or avoidance in cases of intentional or fraudulent non-disclosure. 

Many T&Cs include waivers of the right to void the policy by the D&O insurer. These are intended to protect insured persons acting in good faith from losing their insurance cover as a result of the entire D&O policy being voided on the grounds of a breach of pre-contractual disclosure obligations. However, whether and to what extent such a clause is valid is a subject of ongoing debate and is currently the subject of legal court decisions. 

A late notification of claims is a violation of the contractual duty to report claims immediately. Under section 28 VVG, late notification does not automatically entitle the insurer to decline cover; the insurer must generally demonstrate prejudice caused by the delay, unless the notification breach was fraudulently.

In practice, German insurers tend to take a pragmatic approach where notification is late but no material prejudice has occurred. However, late notification often creates practical complications, particularly where defence costs have already been incurred, procedural steps taken, or settlements discussed without insurer involvement. Prompt notification is therefore strongly recommended, especially for regulatory or investigative matters.

In the German D&O market, insured persons frequently have the right to select their own lawyers, subject to insurer consent regarding fees. Insurers typically require defence costs to be reasonable. A lawyer, who bills in accordance with the German Lawyers’ Fees Act (RVG) is generally considered acceptable, however in most D&O cases lawyers only work on hourly rates, which must be agreed upon with the insurer in advance. 

Most German D&O policies provide cover for defense costs incurred in connection with formal regulatory, administrative or criminal investigations against an insured person, provided that the investigation is likely based on an insured breach of duty of an Insured Person. The cover usually is sub-limited. Informal enquiries or purely internal investigations are usually excluded.

German D&O policies typically contain exclusions for intentional wrongdoing. In line with market practice, these exclusions are usually triggered only after a final and binding determination (e.g. final court judgment).

As a result, defence costs are generally advanced while allegations remain unproven. If intentional conduct is ultimately established, the policy will not indemnify resulting loss, and insurers may seek recovery of defence costs advanced, if the wording provides for recoupment. As a matter of German law and public policy, intentional acts are not insurable, § 103 VVG.

Employees are not automatically covered solely by virtue of their employment. Coverage depends on the definition of “Insured Person” in the policy. German D&O policies commonly extend cover next to directors and officers to senior managers, authorised signatories (Prokuristen), de facto directors and, in some cases, employees acting in a managerial or supervisory capacity. 

Unless there is a legal prohibition on insuring fines, fines are generally covered by insurance. There is no explicit prohibition on insuring fines in Germany; however, many insurers invoke a general clause in German law and argue that paying out on such claims would be contrary to good faith.

Therefore, whether fines are covered depends largely on the specific insurer and its claims-handling practices. Some insurers cover the costs of defending against the fine/penalty but not the actual fine/penalty itself, while others refuse to pay out at all. Still others assess each case individually to determine the nature of the fine. Furthermore, a distinction must be made as to whether a fine/penalty is imposed on a company, which is then recouped from a member of the executive body, or whether a fine/penalty is imposed directly on an Insured Person. The former is highly controversial and has not yet been clarified by the highest courts.

Retired directors are typically covered under German D&O policies, even if they left the company before the insurance contract was concluded. 

If a company stops buying D&O cover, there is usually a retired directors extension in the final policy that continues to provide perpetual cover for claims so long as the alleged conduct forming the basis for the claim took place before the expiry of the policy.  However, this usually applies only to Insured Persons who have left the company solely for reasons of age or health, or solely as a result of a restructuring that leads to the elimination of their respective position.

Greek insurance contracts are primarily governed by Law 2496/1997 on insurance contracts, together with the Greek Civil Code and other applicable insurance legislation.

The policyholder is generally required to disclose to the insurer, before inception of the policy, all material circumstances known to it which may be relevant to the insurer’s assessment of the risk.

Law 2496/1997 is the key statutory framework governing insurance contracts in Greece.  

In the D&O context, this duty is particularly relevant to the proposal form, financial information, prior claims and circumstances, regulatory investigations, insolvency-related risks, pending disputes, shareholder disputes and any known facts which could reasonably give rise to a claim.

The consequences of non-disclosure or misrepresentation will depend on the applicable law, the nature of the non-disclosed information, whether the omission was innocent, negligent or intentional, and the specific policy wording.

Many D&O policies placed in the Greek market are based on multinational insurer or London market wordings, and therefore may also contain specific non-disclosure, severability, innocent non-disclosure or avoidance-related provisions.

D&O policies in Greece are typically written on a claims-made basis, meaning that timely notification of claims and circumstances is a critical requirement. The specific consequences of late notification will depend on the policy wording, including whether notification within the policy period or extended reporting period is expressed as a condition of cover.

In practice, Greek D&O claims are not commonly rejected solely on the basis of late notification where the delay is not material and the insurer has not been prejudiced. The matter is often handled pragmatically, particularly where the insured can provide a reasonable explanation for the delay and the insurer’s position has not been adversely affected.

That said, late notification can create practical difficulties, especially where defence costs have already been incurred without prior insurer consent, where settlement discussions have taken place, or where the insurer has been deprived of the opportunity to participate in defence strategy.

The position will depend on the wording of the relevant D&O policy. In the Greek market, policies usually require the insurer’s prior written consent before defence costs are incurred. However, in practice, the insured person will typically retain the right to propose or select their own lawyer, particularly where the matter involves personal liability, regulatory exposure, criminal proceedings or reputational sensitivity.

Insurers will usually expect the appointed lawyers to have appropriate expertise and for their fees to be reasonable and proportionate to the complexity and value of the matter. Where defence costs are likely to be significant, prior agreement on scope, rates and reporting arrangements is important.

In serious D&O matters, especially where criminal or regulatory aspects are involved, insured persons often appoint their own external counsel, subject to insurer approval and the terms of the policy.

Many modern D&O wordings are capable of providing cover for legal costs incurred by an insured person in connection with formal regulatory or official investigations, depending on the definition of “Investigation”, “Claim”, “Defence Costs” or equivalent terms.

However, in the Greek market, investigation costs cover is not always heavily utilised in practice. This may be because many notifications arise after a more formal claim, criminal complaint, prosecutor-led process or regulatory step has already been taken, rather than at an earlier investigation stage.

Where available, investigation costs cover will usually depend on the investigation being formal, directed at or involving an insured person in their insured capacity, and falling within the policy’s definitions. It may also be subject to sub-limits, prior consent requirements and specific exclusions.

D&O policies generally contain exclusions for fraud, dishonesty, intentional misconduct or illegal personal profit. The exact trigger will depend on the wording. In many policies, the exclusion is only applied following a final adjudication, admission, or other conclusive determination that the relevant conduct occurred.

Accordingly, where an insured person is merely accused of dishonest or fraudulent conduct, the policy may still respond to defence costs until such conduct is finally established, subject always to the policy wording. If dishonesty, fraud or intentional misconduct is ultimately established, insurers may deny indemnity for loss connected with that conduct and may seek reimbursement of defence costs, if the wording allows.

Under Greek law, D&O insurance is generally permissible, but cover for intentional or malicious acts is not acceptable as an insurable risk. Recent legal commentary also notes that D&O cover in Greece should not extend to liability arising from intentional or malicious acts or omissions.  

D&O policies placed in Greece often extend cover beyond formally appointed directors and officers. Employees may be covered depending on the definition of “Insured Person” and the circumstances of the claim.

Typically, employee cover may apply where the employee acts in a managerial or supervisory capacity, is named together with a director or officer, or is involved in an employment practices claim or other covered management-related matter. Some broader wordings may provide more extensive employee cover.

The position is therefore wording-specific and should always be checked against the definition of insured person, claim, wrongful act and any relevant employment practices liability extension.

As a general market position in Greece, fines and penalties are usually excluded under the relevant D&O wordings and not covered to the extent they are not legally insurable. In practice and in any case, fines and penalties are treated with caution.

Criminal fines and sanctions imposed in the context of criminal proceedings are not considered insurable. Administrative fines or monetary penalties may also be problematic, particularly where the underlying infringement involves criminal liability, intentional misconduct or punitive/sanctioning public policy considerations. Recent Greece-focused insurance commentary states that criminal fines and sanctions imposed in criminal proceedings are not insurable, and that D&O insurance may not cover administrative fines or monetary penalties where the infringement constitutes or entails criminal liability.  

In practice, even where the fine itself is not covered, defence costs incurred in responding to the relevant proceedings may be covered, subject to the policy wording, exclusions, allocation and applicable law.

Retired directors are commonly covered under D&O policies, provided the claim relates to wrongful acts committed before their retirement and during their insured capacity. The relevant policy will usually be the policy in force when the claim is first made, subject to the claims-made nature of the cover.

If the company continues to purchase D&O insurance, retired directors may remain protected under the ongoing programme. If the company ceases to purchase cover or undergoes a transaction, the position will depend on the run-off provisions, discovery period, change in control clause and any specific retired directors extension.

The wording should always be reviewed carefully where retirement coincides with insolvency, transaction, change of control or non-renewal of the D&O programme.

Under Israeli law, the insured’s pre-contractual duty of disclosure is governed primarily by the Insurance Contract Law, 1981, especially sections 6–8. In essence, before the contract is concluded, the proposer must give a full and truthful answer to the insurer’s written questions regarding a material matter, namely a matter that could influence a reasonable insurer’s willingness to insure the risk or the terms on which it would do so. Israeli law therefore does not generally impose an open-ended common law style duty to volunteer every material fact; rather, the duty is framed mainly through the insurer’s questions in the proposal form.

Most policies that are subject to Israeli law expressly specify the relevant legal requirement in the policy terms/wording itself.

Israeli law also addresses situations of fraudulent concealment. Even where a matter was not fully disclosed, the insurer’s remedies depend on the circumstances, including whether the non-disclosure was made with an intention to deceive and whether the insurer would have entered into the contract, or would have done so on different terms, had the true facts been known. The remedies are therefore not automatically all-or-nothing in every case. In broad terms, where there is a breach of the duty of disclosure, the insurer may in some circumstances cancel the policy, reduce its liability proportionately, or deny cover entirely in cases involving fraudulent intent, subject always to the statutory framework and the facts of the case. 

In practice, Israeli case law (not necessarily in relation to D&O policies) has treated the duty of disclosure as significant, but also as a duty that must be examined carefully against the insurer’s actual questions, the materiality of the information, the insured’s subjective understanding, and the causal/legal requirements under the statute. As a result, coverage disputes in Israel often focus not only on whether information was omitted, but also on whether the matter was truly material, whether there was intent to mislead, and what remedy is proportionate under the Law.

Under Israeli law (Sections 22–24 of the Insurance Contract Law), late notification does not automatically discharge the insurer from liability. The issue is addressed in the Insurance Contract Law, 1981, which provides that breach by the insured of duties after the insured event, including notification-related duties, does not necessarily lead to a total denial of coverage. Instead, the insurer’s remedies depend on the circumstances of the case and, typically, on whether the delay prejudiced the insurer’s ability to clarify liability, investigate the facts, manage the defence, or mitigate the loss. 

Accordingly, under Israeli law an insurer usually cannot rely on late notice alone in a purely technical way if no real prejudice was caused. If, however, the insurer can show that the delay materially harmed its position or the insurer can show that it could mitigate the damage, it may be entitled to reduce or deny payment, depending on the seriousness of the breach and the statutory requirements. The analysis is therefore more insured-protective than in legal systems where notice provisions can operate automatically as strict conditions precedent. 

That said, from a practical perspective, prompt notification remains very important in D&O matters in Israel, especially where defence strategy, regulatory interaction, document preservation may arise at an early stage and legal advice is needed.

In Israel this is determined first and foremost by the policy wording. 

Most D&O policies in Israel allow the insured discretion in selecting defence counsel, subject to the insurer’s approval of the identity of the attorney and reasonableness of the legal fees.

There are cases in which several directors or officers are sued, and conflicts of interest arise between them. In such circumstances, they may need to satisfy the insurer that separate representation and a split defence are necessary.

D&O policies generally allow the insured to choose their own defence counsel because these claims often involve personal exposure for the insureds, and in claims against directors and officers there is particular importance attached to the insured’s personal trust and confidence in the lawyer representing them.

Such claims may at times involve serious allegations against directors and officers and concerns regarding damage to their reputation, requiring sensitive and highly professional representation. They may also involve parallel regulatory, criminal, or administrative proceedings, which can further justify the insured’s personal choice of counsel.

There may also be situations involving a conflict of interest between the company and the officer or directors, and their interests are not always aligned. Accordingly, most policies in Israel allow insureds to choose their own counsel, while the insurer is required to approve the reasonableness of the fees.

Where no agreement can be reached between the insureds and the insurer regarding the legal fees, some policies contain an agreed arbitration mechanism to resolve that issue.

It should be noted that, naturally, where the insured selects their own defence counsel rather than appointing counsel from the insurer’s panel, the legal fees are often significantly higher. As broker, we at Howden are frequently involved in discussions with the insurer regarding the reasonableness of such fees.

The policy does not define what constitutes “reasonable legal fees,” and in most cases the determination is made based on comparable matters/claims and Law offices.

Yes D&O policies do provide cover for certain legal costs incurred by insured persons in connection with regulatory, administrative, criminal, or official investigations, but the answer depends heavily on the precise wording. Some policies cover only a formal investigation once the insured person is required to appear, provide testimony, be interviewed under caution, or respond to an official demand. Certain policies may also cover costs even where the insured is not summoned personally or specifically, but rather in their capacity as a representative of the company in connection with a matter relating to the company affair.

In most policies, investigations are defined as a “Claim,” and therefore the legal costs associated with legal representation in connection with the investigation are covered by the insurer.

There are quite a few cases in which directors and officers are involved in investigations, and legal representation at the initial stage is very important.

It should be noted that considering the Israeli Companies Law and subject to the policy terms, there is no coverage where the proceedings end in a conviction. Accordingly, if legal costs were advanced by the insurer, the insured will be required to reimburse the amounts paid.

Israeli D&O policies generally provide defence cost protection (advances costs) unless and until dishonest, fraudulent, or intentionally unlawful conduct is established in the manner specified in the policy. Typically, the exclusion is triggered only upon a final adjudication, or in some wordings an admission, that the insured person committed fraudulent, dishonest, or deliberate misconduct.

This means that mere allegations of dishonesty do not usually by themselves bar advancement of defence costs. However, In the event of a legal determination, indemnity for the dishonest conduct itself will normally be excluded, and the insurer may also seek repayment of defence costs already advanced if the wording permits.

It should be noted that under the Israeli public policy, no fraudulent act or intentional behaviour can be insured.

In Israel, a typical D&O policy primarily covers directors and officers, but many policies also extend cover to certain categories of employees. In some policies, employees are considered insured when acting in a managerial or supervisory capacity. In other policies, the definition of “Insured Person” is broader and expressly includes employees in specified roles.

Accordingly, employee cover is common and depends on the policy’s definitions, and on whether the employee’s alleged conduct falls within his managerial or supervisory capacity.

Whether a D&O policy covers fines and penalties depends on both the policy wording and Israeli public policy / insurability rules. Some policies expressly include certain civil or administrative fines and penalties, but only to the extent insurable by law; others exclude them altogether.

It is usually stated that civil and administrative fines and penalties may be covered only to the extent that they are insurable under the law of the relevant jurisdiction.

As a general principle, there is a stronger argument for insurability of some administrative or civil monetary exposures, particularly where they are not purely punitive in nature. By contrast, criminal fines and amounts that are considered punitive or contrary to public policy can’t be insurable under Israeli law.

Yes, generally, retired directors may remain covered under Israeli D&O policies, but this depends on existence of a policy.

If the company continues to purchase D&O policy, former directors are often included within the definition of insured persons for wrongful acts committed during their period in office. If the company ceases to purchase cover, protection may continue only if there is an applicable run-off or extended reporting period.

In Israel, as in other jurisdictions, D&O policies are usually on a claims-made basis, so the key issue is often not when the wrongful act occurred, but when the claim is first made and reported, and whether the former director falls within the insured definition at that time.

In addition, most policies in Israel include an extension relating to former directors and officers. Pursuant to this extension, if the company does not renew the policy or replace it with any other insurance providing directors and officers liability coverage and on of the Discovery Period Options has not been purchase, the insured will be automatically entitled   up to 7 years of Discovery Period at no additional premium after the expiry of the Certificate period.

Under Singapore insurance law, insurance policies are based on a principle called the duty of utmost good faith. In simple terms, this means the policyholder must be open, honest, and fair with the insurer when buying or renewing the policy.

Practically, this requires an insured to provide a fair and accurate picture of the risk to the insurer. You should not make incorrect statements or leave out important information that an insurer would reasonably want to know before deciding whether to insure you, or on what terms.

Common examples of information that should usually be disclosed include:

• known claims, investigations, or disputes involving directors or officers; and
• facts or circumstances that could reasonably lead to a claim.

If material information is not disclosed or is misstated, the insurer may have the right to:

• treat the policy as if it never existed, or
• decline cover for claims connected to the non‑disclosed information, depending on the situation and the policy terms.

To help policyholders meet this duty, insurers usually ask specific questions in proposal forms and declarations. As a general rule, if something could reasonably be relevant to a claim, it is safer to disclose it and explain the context, rather than omit it.

Most D&O policies work on a “claims‑made and notified” basis. This means it is not enough for a claim to happen — it must also be reported to the insurer on time.

If a claim (or a situation that could later turn into a claim) is not notified within the policy period (or any agreed extended reporting period), the insurer may say that there is no cover, even if the claim itself would otherwise have been covered.

Because of this, best practice is to notify insurers as soon as reasonably possible once you become aware of:

• a written demand,
• legal proceedings,
• a regulatory investigation or notice, or
• any situation that could reasonably lead to a claim.

Policies also usually allow notification of “circumstances”. This is helpful because it can preserve coverage for future related claims, even if those claims only arise later.

In short, early notification protects your coverage, while late notification can put it at risk.

This is driven by the policy wording. Typically, the insured can propose counsel, but the insurer has consent/approval rights over the appointment and rates (often via panel counsel arrangements). Many policies require the insured to obtain the insurer’s prior written consent before incurring defence costs, except for limited “emergency costs” provisions. 

In practice, the choice of lawyers is usually agreed between the insured, broker and insurer, balancing (i) conflicts and independence, (ii) relevant regulatory/litigation experience, and (iii) cost control expectations.

Often yes, but it depends on how “Investigation” (or “Inquiry”) is defined and what triggers cover. Many modern Singapore-market wordings provide some form of investigation / inquiry cover (or “pre-investigation” / “interview attendance” costs), especially where an insured person is formally named in writing by an authority as being under investigation or required to attend an interview. Coverage is commonly subject to: (i) a formal trigger (e.g., written notice from a regulator), (ii) insurer consent, and (iii) allocation and exclusions for intentional wrongdoing.

Generally, D&O policies do not provide indemnity for dishonest, fraudulent or criminal conduct. However, many policies still advance defence costs until there is a final determination that the exclusion applies (commonly expressed as a “final, non-appealable adjudication” and / or “admission” trigger). Practically, this means allegations alone should not automatically remove defence cost funding, but a final finding of fraud/dishonesty can result in denial of indemnity and may allow the insurer to seek repayment of advanced defence costs, depending on the wording.

It depends on how the policy defines “Insured Person”. A typical D&O policy primarily covers directors and officers, but many wordings extend cover to certain employees when they act in a managerial or supervisory capacity (and sometimes to committee members). Non-managerial employees are more commonly addressed under Employment Practices Liability (EPL) insurance, or via entity-side cover for employment claims, rather than as insured persons under the D&O policy itself.

Some policies extend “Loss” to include certain civil fines and civil penalties, typically only “where insurable by law”. In Singapore, insurability turns on statute and public policy, and there are important limitations—particularly for criminal fines and penalties, and for intentional or dishonest wrongdoing. In practice, even where the ultimate fine/penalty is not indemnifiable, D&O insurance is often still valuable for defence costs and investigation response costs associated with regulatory action.

Often yes. Most D&O wordings define “Insured Person” to include past (former) directors and officers for wrongful acts committed during their tenure. Separately, many policies offer an extended reporting period (run-off / tail cover) for retired directors or following a transaction/change in control, so that claims made after retirement (but arising from prior acts) can still be notified. The detail is policy-specific (duration, premium, and triggers).

Under Spanish insurance law, the pre‑contractual duty of disclosure is governed primarily by Article 10 of the Spanish Insurance Contract Act (Ley 50/1980, de Contrato de Seguro).

The policyholder is required, prior to contract inception, to disclose to the insurer all circumstances known to the policyholder which may influence the assessment of the risk, but only insofar as such information is requested by the insurer through a questionnaire. This is a key difference compared to some common law jurisdictions: the Spanish insured does not have a general or spontaneous duty to disclose information not requested.

The consequences of breach depend on the degree of fault:

• If there is intentional or grossly negligent misrepresentation, the insurer may avoid the policy.
• If the misrepresentation is non‑intentional, the insurer’s remedy is typically a proportional reduction of the claim amount, based on the difference between the premium charged and the premium that would have been charged had the correct information been provided.

Spanish law adopts a more policyholder‑friendly approach to late notification than many other jurisdictions.

Pursuant to Article 16 of the Insurance Contract Act, the insured must notify the insurer of a claim within seven days of becoming aware of it (unless a longer period is agreed in the policy). However, late notification does not automatically entitle the insurer to decline coverage.

The insurer may only reduce the indemnity to the extent it can demonstrate actual prejudice caused by the delay. Total denial of coverage is generally only possible if the insurer can prove bad faith on the part of the insured.

In practice, modern D&O policies ruled by Spanish law usually contain claims‑made notification provisions, often with specified reporting periods and extended reporting options. While Spanish courts generally respect claims‑made structures, insurers must still show prejudice in order to rely on late notification arguments.

Under Spanish D&O policies, the insured person is the only person that has capability to choose its defense. Only in some cases does the insurer provide a panel of potential law firms. But in any case, the final decision always rests with the insured person.

Even where the Insured Person has freedom of choice, defence costs must be reasonable and proportionate, and insurers typically require:

• prior approval of the appointed law firm; and
• agreement on hourly rates.

From a practical standpoint, early engagement with insurers is critical to ensure alignment on defence strategy and avoid recoverability disputes.

Yes. Spanish D&O policies generally cover defence costs incurred in formal administrative, regulatory or criminal investigations involving an Insured Person, provided such investigations are directed at the individual in their insured capacity.

Coverage typically includes:

• legal representation during regulatory proceedings;
• in some cases, representation at interviews, 
• preparatory legal advice directly linked to the investigation.

Some policies also extend coverage to pre‑claim inquiries or informal investigations, although this may be subject to:

• specific triggering events;
• narrower definitions; and/or
• sub‑limits.

Internal investigations are usually excluded unless expressly included by endorsement and linked to a foreseeable external claim.

Spanish D&O policies universally include exclusions for fraudulent, dishonest or intentionally unlawful conduct. However, consistent with market practice, such exclusions are generally deferred until there is a final, non‑appealable judicial decision or formal admission establishing such conduct.

As a result:

• defence costs remain covered while allegations are unproven; and
• insurers cannot rely on the exclusion at an early procedural stage, although some terms and conditions reverse this condition, and if the third party alleges fraudulent conduct, the insurer will only act in reimbursement in a final judgment if it is determined that there was no such fraud.

Most modern Spanish D&O policies extend coverage beyond directors and officers to certain employees, though the scope varies, and depend in that those employees acts us directors, in a practical view.

As a general rule:

• criminal fines are considered uninsurable as a matter of public policy;
• administrative fines may be insurable if they arise from negligent conduct and are not explicitly prohibited by law.

Therefore, fines are usually excluded, except for administrative fines, which are usually sub-limited in the policy.

Yes. Retired or former directors are generally covered under Spanish D&O policies, provided:

• the alleged wrongful act occurred while they held office; and
• the claim is first made during the policy period or any applicable extended reporting period.

If the company continues to renew the policy, former directors remain insured. Where cover ceases (e.g. due to dissolution or acquisition), policies usually include a run‑off or extended reporting period, commonly aligned with Spanish statutory limitation periods (typically four to six years, depending on the claim type).

Run‑off cover may be subject to limitations in cases of insolvency or change of control, depending on the wording.

UAE onshore – Civil Code - With effect from 1 June 2026, the Insured is required to disclose information that the Insurer asks for in order to assess the risk.   

DIFC / ADGM – Duty to disclose all material facts / make a fair presentation of the risk.

Bahrain – Duty to disclose all material facts.

Oman – Good faith disclosure.

Tanzania - Duty to disclose material facts.

In the UAE (onshore) and Oman, an Insurer needs to demonstrate that there has been prejudice. In Bahrain and Tanzania, late notification can lead to a claim being declined even where there is no prejudice. DIFC / AGDM follow common law of England and Wales principles. 

Where London market wordings are used, the Insured is more likely to be able to decide on their own lawyers (most likely with DIFC / AGDM companies). Where local wordings are used, the Insurer typically must approve lawyers that the Insured uses in advance of their appointment. 

Cover for regulatory investigations is most prevalent in policies for DIFC and AGDM companies. D&O regulatory investigation levels are relatively rare elsewhere in the region. 

Yes, subject to the conduct exclusion which only applies once there is a final adjudication or an admission of liability. Defence costs are advanced until that point. 

Employees when acting in a managerial or supervisory capacity are generally covered within the Insured Person definition. 

Where insurable. In UAE, Bahrain, DIFC, AGDM, criminal fines are not insurable. In Oman and Tanzania, fines are not insurable at all.

Where a policy is not renewed or replaced, most policies provide a Discovery Period for Retired Insured Persons.  The period varies between wordings, but 84 months is common.

Anything material to the risk.

Because timely reporting is typically a condition to coverage – in order for a carrier to deny coverage based on late notice, the carrier will need to demonstrate prejudice. 

Different story when the policy is written on a claims made and reported basis.

It depends on who controls the defense.  

If the client controls the defense, they can appoint counsel subject to carrier consent which can’t be unreasonably withheld.  The carrier in that instance can allocate based on covered/noncovered parties and covered/ noncovered claims.  

If the carrier controls the defense, they can appoint counsel even in a Side A context.  The carrier in that instance must defend the entire suit -- even if only a single allegation or count falls within coverage. 

Due to Anti-Trust claims in the Private D&O context, many policies are written with optionality (client can select duty to defend or reimbursement).  

Yes.  Coverage for the entity tends to be much more limited (coverage may not start until late in the day e.g., Wells Notice/Enforcement Action).   The debate that arises is whether the work performed was for the Insured Person or the Entity.

Yes, subject to final adjudication triggers which tend to keep coverage in place until every last avenue for appeal has been exhausted.  “Dole” settled their claim after trial and for the entire judgment amount. It was held in the ensuing DJ that – because an appeal had been filed and as such the judgment was not “final non appealable”- the settlement was covered.

No.  Unlike many other jurisdictions, employees are not covered under typical US wordings.

Yes, unless uninsurable as a matter of law/public policy

Yes.