Insurance Litigation 2022 Comparisons

In China, the substantive issues of insurance disputes are mainly governed by the following laws and rules:

• the Insurance Law of the People’s Republic of China (as amended in 2015) (hereinafter referred to as “the Insurance Law”) and its related Interpretations promulgated by the Supreme People’s Court (hereinafter referred to as “the Interpretations of the Insurance Law”); and 
• the Civil Code of the People’s Republic of China and its related Interpretations promulgated by the Supreme People’s Court.

Procedural issues are mainly governed by the Civil Procedural Law of the People’s Republic of China (as amended in 2021) and its related Interpretations promulgated by the Supreme People’s Court.

In China, a civil litigation case is normally initiated by the plaintiff by submitting a civil complaint to the people’s court of the place where the defendant is domiciled. 

The litigation proceedings of insurance disputes are as follows.

First-Instance Procedure

For ordinary domestic civil cases, the duration of the first-instance procedure is six months, subject to a six-month extension upon the approval of the president of the court or further extension upon the approval of the people's court at a higher level.

Appeal and Second-Instance Procedure

For domestic parties, the appeal period would be 15 days, and for foreign parties who have no domicile within the territory of the People's Republic of China (PRC), the period would be 30 days. 

Normally, the period of the second-instance cases is three months, subject to further extension upon the approval of the president of the court. However, the law also stipulated that the period for the trials of civil cases involving a foreign element by the people's court shall not be restricted by the periods mentioned above.

After an appellate review, the case should generally be completed and a final judgment will be made.

Supervision Procedure

After the final judgement being rendered, if any party considers that the legally effective judgment or order includes mistakes, the party may apply to the people's court that originally tried the case or to a people's court at the next higher level for retrial; however, execution of the judgment or order shall not be suspended.

General Rules on Limitation

Generally, according to Article 188 of the Civil Code of the PRC, the limitation period for a person to request the people’s court to protect their civil law rights is three years, unless otherwise provided by law. 

However, special rules apply to the limitation of insurance cases. According to Article 26 of the Insurance Law of the PRC, the limitation period for an insured or beneficiary of non-life insurance policies to request compensation or payment from the insurer shall be two years, calculated from the date when they should have known of the insured event. The limitation period for a life insurance insured or beneficiary to request payment from the insurer shall be five years, calculated from the date when the insured or the beneficiary became aware of the insured incident.

In China, alternative dispute resolution (ADR) is prevalent and encouraged. There are generally two types of ADR under the Civil Procedure Law of the PRC (as amended in 2021): mediation and arbitration. ADR is highly encouraged and is rapidly developing, especially in the area of insurance dispute resolution.

Since 2012, the Supreme People’s Court has co-operated with the China Banking and Insurance Regulatory Commission (CBIRC) in exploring ADR in insurance disputes.

In 2016, the Supreme People’s Court and the CIRC (the former version of the CBIRC) co-issued the Opinion on Fully Promoting to Establish the Connection Scheme between Litigation and Mediation for Insurance Disputes in order to establish the multiple dispute resolution mechanisms for insurance disputes in China.

Many ADR organisations (eg, the BNR International Commercial Mediation Centre) have emerged and rapidly developed. In practice, a multiple dispute resolution method that combines arbitration and mediation has become increasingly important.

In respect of jurisdiction, according to Article 25 of the Civil Procedure Law of the PRC, lawsuits arising from insurance contract disputes shall be under the jurisdiction of the people’s court of the place where the defendant is domiciled or the place where the subject matter of insurance is located. In addition, the value of a dispute may impact the level of the trial court.

In respect of the choice of law, according to Article 41 of the Law of the Application of Law for Foreign Related Civil Relations of the People’s Republic of China, the parties concerned may choose the laws applicable to contracts by agreement. If the parties do not choose, the laws at the habitual residence of the party whose fulfilment of obligations can best reflect the characteristics of this contract or other laws which have the closest relation with such contract shall apply.

Foreign judgments can generally be enforced in China, although the procedures may be subject to international treaties acceded to by the PRC under the principle of reciprocity. 

According to the Civil Procedure Law of the PRC, if a legally effective judgment or order made by a foreign court requires recognition and enforcement by a people's court of the PRC, the party concerned may directly apply for recognition and enforcement to the intermediate people's court of the PRC which has jurisdiction. The foreign court may also request its judgments or orders to be recognised and enforced by a Chinese court under the principle of reciprocity, according to the provisions of the international treaties concluded between or acceded to by the foreign country and the PRC. 

In the case of an application for recognition and enforcement of a legally effective judgment or order rendered by a foreign court, the people's court shall recognise the validity of the judgment or order and issue a writ of execution to enforce in accordance with the relevant provisions of the Civil Procedure Law of the PRC (if the judgment or order is applied to be enforced), if after examining the application, in accordance with the international treaties acceded to by the PRC under the principle of reciprocity, the court concludes that it does not contradict the basic principles of the law of the PRC, it does not violate the state sovereignty security, and it is not harmful to the public interest of the country.

However, if the application contradicts the basic principles of the law of the PRC, violates state sovereignty security or is harmful to the public interest of the country, the people's court shall refuse its recognition or enforcement.

International insurers should be aware of the following rules during the litigation procedure. 

Concentrated Jurisdiction System

In order to facilitate the efficiency and the professionalism of the court, some provinces in China exercise a “Concentrated Jurisdiction System”, which designates all of a particular kind of cases to be tried in a particular court. For instance, the Beijing Financial Court was established in March 2021. As declared by the Supreme People’s Court, the Beijing Financial Court has jurisdiction over the first-instance trials of all financial civil and commercial cases related to insurance.

Notarisation and Legalisation of Litigation-Related Documents

Normally, a foreign party needs to submit certain documents for litigation purposes, including power of attorney, a copy of the entity’s business licence or commercial registration certificate, etc. 

Additional procedures on notarisation and legalisation may be needed in the preparation of these documents. According to the Civil Procedure Law of the PRC, if any of the documents mentioned above is sent, consigned or formed outside the territory of the PRC, it must be notarised by the notary office of the country where the party is registered and certified by the Chinese embassy in that country. All documents that are in a foreign language should be accompanied by a Chinese translation certified by a qualified translator.

According to Article 5 of the Arbitration Law of the PRC, a people's court shall not accept an action initiated by one of the parties if the parties have concluded an arbitration agreement, unless the arbitration agreement is invalid.

Furthermore, where the parties concerned have reached an arbitration agreement and one party has filed a suit to be heard before a people’s court without declaring the existence of the arbitration agreement, and following acceptance of the case by the court the other party fails to provide its opposing opinion prior to the beginning of the hearing by the court, the arbitration agreement shall be regarded as having been forfeited and the court shall continue the hearing.

China joined the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention”) in 1986, subject to the following conditions:

• the PRC applies the Convention to the recognition and enforcement of arbitral awards made in the territory of another contracting state only on the basis of reciprocity; and 
• the PRC only applies the Convention to disputes arising from contractual and non-contractual commercial legal relations recognised under the laws of the PRC.

Foreign arbitration awards could be recognised and enforced by a people's court of the PRC. According to the Civil Procedure Law of the PRC, if an award made by a foreign arbitration agency requires the recognition and enforcement by a people's court of the PRC, the party concerned shall directly apply to the intermediate people's court in the place where the party subject to execution has its domicile or where its property is located. The people's court shall deal with the matter in accordance with the relevant provisions of the international treaties concluded or acceded to by the PRC or under the principle of reciprocity.

Arbitration is an important and popular form of insurance dispute resolution in China. 

Many cases concerning the validity of arbitration clauses in insurance-related disputes are about insurance subrogation claims, namely, whether an arbitration agreement reached between the insured and a third party before the insured event is binding on the insurer exercising the right of subrogation. According to Article 98 of the Minutes of the National Courts' Civil and Commercial Trial Work Conference issued by the Supreme People's Court, the right of subrogation is a kind of assignment of statutory claims, thus an arbitration agreement reached between the insured and a third party before the insured event occurs is binding on the insurer, but civil and commercial dispute cases with foreign-related factors will not be governed by such provision.

In respect of arbitration cases, the applicable laws and rules include the Arbitration Law of the People’s Republic of China (as amended in 2017, hereinafter referred to as “the Arbitration Law of the PRC”) and the Interpretations of Supreme People’s Court on the Application of the Arbitration Law of the People’s Republic of China (as amended in 2008). 

The arbitration process is generally private. According to Article 40 of the Arbitration Law of the PRC, arbitration proceedings shall not be conducted publicly. If the parties agree to a public hearing, the arbitration may proceed in public, except those involving state secrets.

An arbitration award is generally final and binding. According to Article 9 of the Arbitration Law of the PRC, an arbitration award is final. After an arbitral award is rendered, where the parties apply for arbitration or initiate an action to the people's court over the same dispute, the Arbitration Commission or the people's court shall not accept it. However, there are certain exceptions where a court may exercise jurisdiction over arbitration-related disputes.

• A court may gain jurisdiction if the validity of an arbitration agreement/clause is contended and brought before the court under Article 5 of the Arbitration Law of the PRC.
• A court may revoke an arbitral award under Article 58 of the Arbitration Law of the PRC, if the claimant can provide evidence proofing that the award involves one of the following circumstances:
1. the award is not supported by a valid arbitration clause/agreement;
2. the matters of the award are beyond the extent of the arbitration agreement or not under the jurisdiction of the arbitration commission;
3. the composition of the arbitral panel or the proceedings violate statutory arbitration procedures;
4. the evidence underlining the award is falsified;
5. the counterparty conceals evidence that can affect the impartial ruling of the arbitration; or
6. the arbitrator(s) has (have) demanded or accepted bribes, committed graft or perverted the law in making the arbitral award.

Where the people’s court decides that the arbitration award violates public interest, it shall order the cancellation of the award. However, in practice, few arbitral awards are revoked by courts.

There are laws and rules in China governing the terms of insurance contracts and making them into a contract of insurance by operation of law. For instance, Article 25 of the Insurance Law of the PRC provides that where an insurer is unable to ascertain the total amount of compensation or payment of insurance benefits within 60 days of receipt of a claim for compensation or payment of insurance benefits and the relevant proof and materials, the insurer shall make payment first based on the amount ascertainable pursuant to the available proof and materials, and the insurer shall pay the corresponding balance upon final ascertainment of the amount of compensation or payment of insurance benefits.

In addition, according to Article 135 of the Insurance Law of the PRC, the insurance clauses and premium rates of insurance policies which relate to social and public interests, insurance policies of mandatory insurance implemented pursuant to the law and newly developed insurance policies of life insurance, etc, shall be subject to approval of the CBIRC. The insurance clauses and premium rates of other types of insurance policies shall be filed with the insurance regulatory authorities for their records. Detailed rules include the Guidelines on Development of Insurance Products by Property Insurance Companies (2016), the Administrative Methods on Insurance Contract Terms and Insurance Rates of Life Insurance Companies (amended in 2015), etc.

According to Article 16 of the Insurance Law of the PRC, where an insurer makes enquiries on the subject matter of insurance or the relevant information of the insured party for the purpose of conclusion of an insurance contract, the insurance applicant shall provide truthful information.

In terms of misrepresentation or non-disclosure by the insurance applicant, Article 16 provides that where the policyholder fails to perform the obligation of providing truthful information intentionally or due to gross negligence, thus affecting the insurer’s decision on underwriting or increase of premium rate, the insurer shall have the right to rescind the contract.

During the past 12 months, policy coverage disputes mainly arose from property and casualty insurance policies, among which motor vehicle insurance disputes accounted for the largest proportion. 

Among personal insurance-related disputes, the main types of insurance policies involved were illness insurance, accident insurance and medical insurance, and the claims were mainly due to the delayed settlement of claims, disputes over the claimed amount, and the burdensome materials that were required for the settlement.

In addition, as online insurance has been accelerated by the development of internet technology, online policy claim disputes mainly have related to the notification and exemption clauses. 

Normally, insurance coverage disputes are resolved pursuant to the Insurance Law of the PRC and the provisions of the insurance contract, through one or more of the mechanisms including settlement, mediation, arbitration and litigation.

In reinsurance contract disputes, the dispute resolution mechanisms are the same. In practice, however, since contractual reinsurance relationships normally include foreign-related factors, the reinsurance companies often take the impact to their business reputation into account in resolving disputes and may prefer to use arbitration when dealing with foreign-related reinsurance cases.

Special laws and rules may apply if the insured party is recognised as a consumer. 

According to the Law of the PRC on the Protection of Consumer Rights and Interest (hereinafter referred to as “the Consumer Protection Law”), the purchase of insurance products by individual insureds should be governed by the Consumer Protection Law, and the insureds shall be specially protected as consumers accordingly. For instance, if an insurance company engages in fraudulent acts in the process of providing insurance services, the insured may request additional compensation for the losses suffered in accordance with the Consumer Protection Law.

In addition, the insured party as a consumer receives greater protection, and particular rules are applied in respect of the interpretation of insurance contracts. Article 30 of the Insurance Law of the PRC stipulates that, where there is a dispute over a contract clause between an insurer and the applicant, and the insured or the beneficiary, and the insurance contract is concluded by adopting the standard clauses provided by the insurer and there are two or more interpretations of the contract clause, the court or arbitration organisations shall adopt the interpretation which is in the interest of the insured party and the beneficiaries.  

A third party that is not a contractual party to an insurance agreement is generally not entitled to bring a direct action against an insurer. However, in terms of liability insurance, Article 65 of the Insurance Law of the PRC provides that an insurer shall, at the request of an insured party, make direct compensation of insurance benefits to a third party for damages caused by the insured party of a liability insurance policy to the third party in the event that the compensation liability of the insured party towards the third party is determined. Where the insured party does not make the request, the third party shall have the right to directly request the insurer to provide compensation in respect of the amount of compensation it should have received.

Under Chinese law, the concept of “bad faith” is not clearly defined. In the area of insurance coverage, “bad faith” appears in the Notice on Carrying out the Work of “Consolidating the Results of the Control of Chaos and Promoting Compliance Construction” (hereinafter referred to as “the CBIRC Notice”). The CBIRC Notice highlights that one of the problems, in practice, is the insurance companies' refusal to perform their obligation of compensation or to pay insurance money stipulated in the insurance contract or to delay payment in bad faith.

Whether the insurer acts in “bad faith” depends on whether the insurer was “knowingly” acting improperly. In judicial practice, the “bad faith” on the part of the insurer is usually recognised in the following situations:

• the insurer refuses to pay the insurance money at the claim stage, on the ground that the insured has committed a misrepresentation or the accident falls within the exemption clause of the insurance contract, but the insurer fails to perform its obligation of inquiry or its duty to inform the insured at the inception of the insurance stage; 
• the insurer refuses to pay the insurance money on the ground that the amount claimed by the claimant is unreasonable, but it cannot present evidence to support this claim; or
• the insurer refuses to pay the insured’s necessary and reasonable expenses to determine the cause of the accident and the severity of the losses. 

Delayed payment may result in the liability of the insurer to compensate the insured or the beneficiary for the losses suffered due to the delay. 

According to Article 23 of the Insurance Law of the PRC, after receiving the claim by the insured or beneficiaries for compensation or payment of insurance benefits, the insurer shall make a timely verification and notify the insured or beneficiaries of the verification results. In complex cases, verification should be completed within 30 days, unless otherwise agreed in the contract. The insurer shall perform the obligations of compensation or payment within ten days after reaching an agreement on the compensation or payment with the insured or beneficiaries if the case is of insured liability. The insurer should settle the compensation or payment according to the insured amount and the time limit as agreed in the insurance contract. Where the insurer has failed to perform the obligation mentioned above, the insurer shall, in addition to payment of insurance benefits, compensate the insured or the beneficiary for the losses incurred.

In addition, the delay in payment may result in administrative penalties on the insurer. According to Article 161 of the Insurance Law of the PRC, for the insurer’s “refusal to perform the obligation of compensation or payment of insurance benefits as stipulated in the insurance contract pursuant to the law”, the insurance regulatory agency may order corrections and impose a fine ranging from CNY50,000 to CNY300,000. Where the violation is serious, the scope of business of the insurance company could be restricted or the insurance company might be ordered to stop accepting new business, or the business permit of the insurance company may even be revoked. 

The delay in payment may also result in penalties for the person-in-charge who is directly accountable and other directly accountable personnel of the insurance company.

Whether the insured should be bound by an insurance broker's representations should be considered under the following situations.

The Insurance Broker is Legally Authorised by the Insured 

The insured shall be bound by the representations made by the insurance broker if the representations were made in the insured’s name and within the scope the agency. According to Articles 161 and 162 of the Civil Code of the PRC, a civil subject may perform civil juristic acts through its agent, and the acts performed by the agent are binding on the principal if the agent acts in the principal’s name and within the scope of the agency. 

The Insurance Broker is Not Legally Authorised by the Insured 

The insured shall not be bound by the representations made by an insurance broker that is not legally authorised by the insured, unless the insured reconfirms the authorisation after the representations were made. According to Article 171 of the Civil Code of the PRC, an act performed by a person without authority, beyond the scope of a person's authority or after the authority is terminated is not effective against a principal who has not ratified it. 

Insurance companies may authorise insurance agents to assist with underwriting and claims processing; however, the final decision on underwriting and claims processing will be generally reserved by the insurance company since they are the core functions of insurance companies. 

When the insurance agent handles insurance business according to the authorisation of the insurer, the insurer shall bear the responsibility. Disputes and litigation may arise if the insurance agent does not have or does not exercise the authorisation in a proper manner. 

Liability insurance is the main area of claims where insurers fund the defence of the insured. Unless otherwise agreed in the insurance contract, the defence costs shall be borne by the insurer of the liability insurance. For instance, the defendant's costs involved in a claim against the insured are most typical in motor vehicle traffic accidents

The defence costs may cover the legal costs which relate to the cost of litigation or arbitration to be legally borne by the insured and other necessary and reasonable expenses paid upon the prior consent of the insurer. Defence costs normally include case acceptance fees, necessary reasonable expenses incurred by the insured for preventing or reducing losses that should be compensated under the contract, inspection fees paid to ascertain and determine the nature and causes of insured accidents and the extent of insured losses, etc. 

In the next few years, the insured may still be encouraged to actively respond to the lawsuit when the third party (victim of a liability insurance accident) is suing for compensation, and liability insurance would continue to be the main area in which the insurer funds the defence of insureds, especially in the area of motor vehicle liability insurance.

The cost and complexity of such litigation have increased in the last few years. The increase in cost is related to the increase in the amounts disputed in the litigation cases, the number of cases, and the litigation requests on appraisal fees and attorney fees. The complexity of the cases is mainly reflected in the determination of the responsibility, the scope of the basic legal relationship, and the payment of litigation costs. This trend will continue in line with the public's improved awareness of rights protection, legal concepts and insurance awareness, and the vigorous development of the insurance industry.

The claimants can buy legal expenses insurance against costs risks. Legal expenses insurance exists in the form of main insurance, additional insurance, an extended insurance clause or a special insurance agreement. 

There is an automatic right of subrogation of the insurer upon payment of an indemnity by the insurer. 

According to Articles 60 and 62 of the Insurance Law of the PRC, where the occurrence of an insured accident resulted from damages to the subject matter of insurance caused by a third party, the insurer shall, with effect from the date of paying compensation of insurance benefits to the insured party, exercise subrogation rights within the scope of the compensation amount to claim compensation from the third party. However, an insurer shall not exercise subrogation rights to claim for compensation from a family member or staff member of the insured party, except for an insured accident which is caused intentionally by a family member or staff member of the insured party.

The outbreak of the pandemic has been a significant factor for litigation. Industries such as transportation, tourism and catering have all been seriously adversely impacted, and auto insurance, accident insurance and freight insurance, and disputes closely related to these industries, have also been affected.

The war in Ukraine has also been a major factor affecting China's insurance industry. It is expected that property insurance companies will face huge losses, especially in fields such as aviation insurance and cybersecurity insurance. In addition, disputes in relation to marine insurance may occur since international trade and cross-border transportation related to Europe would be adversely affected by these circumstances.

In the next 12 months, insurance companies may continue to face insurance claims and insurance-related disputes arising from the impact of COVID-19 and the war in Ukraine. In addition, insurance-related disputes may also occur due to sanctions arising from political conflicts.

The pandemic has brought about many underwriting issues, such as whether COVID-19 is a statutory infectious disease, whether it belongs to the scope of coverage of personal insurance such as health insurance and accident insurance, and what impact the pandemic and related prevention and control measures will have on business interruption insurance and insurance disputes.

The CBIRC has promulgated certain insurance policies and measures related to the pandemic. For instance, insurance coverages have been extended to protect the interests of customers infected by COVID-19, and insurance payments could be paid in advance.

In respect of the war in Ukraine, many countries have announced sanctions on some Russian personnel, companies and goods since the war began. At the same time, many insurance companies refuse to cover goods and properties in Russia. As for cargo insurance, some insurance companies require an additional “sanction” clause. Ship-owners’ P&I insurance has also been greatly impacted, since ships travelling back and forth from Russia rarely obtain international coverage.

The pandemic has affected the scope of the insurance cover of many Chinese insurance companies. Many life insurance companies have included death, disability and serious illness caused by COVID-19 in their insurance coverage. Insurance products such as COVID-19-related insurance and vaccine-related insurance were also launched. Business interruption insurance due to COVID-19 was launched as well. 

The pandemic has changed people's risk appetite and stimulated people's awareness of protecting themselves from health risks and of the value of purchasing insurance. Serious illness insurance, medical (reimbursement) insurance and accident insurance are the options to prioritise among all types of insurance.

With respect to the war in Ukraine, marine insurance may be the focal issue, and the scope of insurance coverage and risk appetites are subject to change accordingly. The need for war risk insurance and export credit insurance are increasing as a result of the war.

ESG has a significant impact on the operations of insurance companies in China, and the underwriting business and the use of insurance funds are closely related to ESG factors. In terms of underwriting, drastic changes in the climate may lead to an increase in the probability of property loss claims, such as claims due to the rainstorm in July 2021 in Henan Province and an increase in underwriting costs. Other ESG risks faced by insurance industries include reputation damage, credit, market and liquidity risk, litigation risk, and product diversity risk.

Many insurance companies try to consider ESG factors, explore green insurance product innovation and green claim management, and contribute to the global sustainable development goals through insurance products and services.

In terms of legislation, the implementation of the Civil Code of the PRC will bring new changes to the judicial application of insurance conventions, the insurance contract trials, and the settlement of insurance disputes. 

With the development of internet technology, internet security-related risks have increased. The promulgation of the Data Security Law of the PRC and the Personal Information Protection Law of the PRC provide opportunities for the development of the internet security-related insurance market.

In terms of supervision, since 2019, the CBIRC has issued and revised various laws and regulations, such as the Measures for the Supervision of Internet Insurance Business, the Administrative Measures on Health Insurance, the Notice on Issues concerning Regulating Endowment Insurance Products, the Opinions on Promoting the Development of Commercial Insurance in the Social Services Sector, the Opinions on Accelerating the Reform of Accident Insurance, the Notice of Issuing the Measures for Regulating the Credit Insurance and Surety Bond, and the Notice on Issuing the Regulatory Measures for Liability Insurance Business to specify the scope of insurance products and the assumption of insurance liabilities.