Insurance and reinsurance

Captive insurance

Summarise any captive insurance regime in your jurisdiction as applicable to aviation.

In Belgium, it is not required that insurance be placed with insurers incorporated in Belgium. Nevertheless, as for aircraft registered in Belgium, insurance must be placed with an insurance company authorised to sell insurance products in Belgium. Reinsurance can be placed anywhere, but non-European reinsurance companies may need approval from the National Bank of Belgium as per the 2016 Act on insurance and reinsurance companies that offer their products in Belgium.

Cut-through clauses

Are cut-through clauses under the insurance and reinsurance documentation legally effective?

There is no legal relationship between the reinsurer and the insured party under Belgian reinsurance law, with the consequence that the insured party cannot directly seek payment from the reinsurers. To our knowledge the validity of cut-through clauses in the event of insolvency of the insurer has not been disputed before Belgian courts.

Reinsurance

Are assignments of reinsurance (by domestic or captive insurers) legally effective? Are assignments of reinsurance typically provided on aviation leasing and finance transactions?

We are not aware of any issue regarding the transfer of reinsurance portfolios. Assignment of reinsurances are typically provided in aviation leasing and finance transactions.

Liability

Can an owner, lessor or financier be liable for the operation of the aircraft or the activities of the operator?

Under Belgian civil law, only the person having custody over the aircraft is liable for any damage caused in the operation of the aircraft. Owners, lessors and financiers should not be liable for operation of the aircraft by the operator, unless the damage stems from their own negligence under general principles of tort.

Strict liability

Does the jurisdiction adopt a regime of strict liability for owners, lessors, financiers or others with no operational interest in the aircraft?

The 1952 Rome Convention on surface damage, which has been ratified by Belgium, provides that in cases where the identity of the owner of the aircraft is mentioned in the Belgian registry, the owner will be considered as the operator of the aircraft, with the consequence that it could be liable for the surface damage caused by the aircraft, unless the owner demonstrates that it is not the operator of the aircraft.

Strict liability also exists on the aircraft manufacturer under the 1991 Product Liability Act. If the manufacturer is based outside the European Union, strict liability will attach to the importer of the aircraft.

Third-party liability insurance

Are there minimum requirements for the amount of third-party liability cover that must be in place?

Aviation insurance in Belgium is regulated by the Regulation (EC) No. 785/2004 on insurance requirements for air carriers and aircraft operators, which sets minimum insurance limits.

The authors would like to thank Ms Giulia Mauri, who contributed to a prior edition of this chapter.