Financial fairness and conditional indexation

Collective pension contracts can generate advantages for their participants by implementing forms of risk sharing. To ensure the continuity of a collective scheme, it has to be monitored whether the contracts offered to participants are financially fair in terms of their market value. When risk sharing is implemented by means of optionalities such as conditional indexation, the analysis of financial fairness is not straightforward. In this paper, we use a stylised overlapping generations model to study financial fairness for a conditional indexation scheme. We find that financial fairness for all participants at all times is not feasible within a scheme of this type, unless the nature of indexation is such that the scheme is reduced to DC. However, financial fairness for incoming generations at the moment of entry can be realised. We show how to compute the fair contribution rate as a function of the current nominal asset/liability ratio for a given level of nominal entitlements. At low levels of the ratio, the fair contribution for incoming generations is also relatively low; nevertheless, the joining of a new generation still has a positive effect on the asset/liability ratio.     

Verzicht auf das Recht zur Arglistanfechtung in AGB/AVB – zur Rechtsprechung des BGH und ihrer Auswirkungen auf die D&O-Versicherung

The ruling by the BGH dated 21.09.2011 (VersR 2011, 1563, Heros-II) on the consequences relating on insurance law arising from the insolvency of the Heros Group raises the question as to the decision’s implications for D&O insurance. The Fourth Civil Senate, which is the competent court for insurance law, came to the conclusion that waiving one’s right to rescission on grounds of fraudulent misrepresentation, contractually agreed upon in advance, is incompatible with the intended protection of the right to self-determination expressed in §123 BGB, and is therefore invalid. Confirming a landmark decision by the Eighth Senate dated 17.01.2007, the ruling furthermore affects the rights of insured individuals: according to the BGH they lose coverage following the insurer‘s rescission on grounds of fraudulent misrepresentation (§334 BGB) since they only acquire rights to the extent designed by the policyholder. This article offers an introduction to the issue (Sects. 1, 2) and analyses the dogmatic derivation of the invalidity of the preemptive waiver on grounds of fraudulent misrepresentation (Sects. 3–5). Finally it explores whether the insurance coverage is required by law to be maintained for bona fide persons and whether a contractual agreement is possible.     

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