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Risk Management Forum

Risk is the combination of the probability of an event and its consequences. These consequences can be positive (opportunities) or negative (threats). Grouped the risks into four groups, strategic, financial, operational and fortuitous or random, the knowledge of their behavior results in their global vision and in their strategic management, in order to protect the assets and resources of those who support them. to the possible losses to which it is exposed and to take advantage of the opportunities that can be obtained by managing risks efficiently.

The Forum aims to deepen the scientific analysis of risks, in their legal and economic aspects, which enables the identification, evaluation and control of those risks of companies, Public Administrations, professionals, individuals, etc ..., which allows to reinforce the strategic objectives of those who live with risks, acting in all their areas, to achieve a common goal, their minimization, the correct legal treatment of them, as well as their financing through insurance underwriting or their total or partial retention and finally the increase of the value for stakeholders in their economic, social and environmental spheres and an adequate governance of those who generate the risks.

The study and knowledge of the risks and the solution to the problems raised, implies an improvement in their management, incorporates improvements to eliminate or control / mitigate potential losses and take advantage of opportunities for competitive improvement, promoting the development of a society with greater legal guarantees , with solid values, as well as the establishment and dissemination of information and training principles in the professional field of risks with public and private institutions, companies and organizations in general.

Gonzalo Iturmendi Morales

Director.
Managing Partner, G. Iturmendi y Asociados Law Firm. Member of the Academic Council of Fide.

Publications

Discover all the publications, session summaries and other documents related to the activity of this forum:

1 October 2019

Speakers:

  • Gonzalo Iturmendi Morales, Managing Partner, G. Iturmendi y Asociados Law Firm. Member of the Academic Council of Fide
  • Jose Maria Elguero Merino, Professor, Comillas Pontifical University

 

Moderator: Vicente Magro Servet, Magistrate of Chamber II, Supreme Court

Summary:

Fide organized this session on the occasion of the publication of the book: «D&O Liability and Insurance", by Gonzalo Iturmendi and José María Elguero, with a foreword by Vicente Magro and edited by Agers.

Administrators and executives are aware of being in the crosshairs of different interest groups of potential civil liability claimants, therefore they aspire to be protected against the increase in claims.

The insurance response to the concern of senior officials about their responsibility is specified in the civil liability insurance of administrators and executives (Directors & Officers, D&O), which generates interpretation problems both in the company taking the insurance, as well as the policyholders. The recent positions created within the organizations - such as the Chief Agile Officer or the Chief Experience Officer - reveal the current situation in the treatment of insurance for administrators and directors.

The session analyzed the usefulness and main problems of D&O insurance, its coverage and especially those of greater practical interest in current issues such as fraud in insurance, bonds, legal defense expenses, the assurance of administrative sanctions. , tax debts and the relationship between D&O insurance and the organization's compliance programs. In this session the book “D&O Liability and Insurance”Written by the speakers and prefaced by Vicente Magro Servert, a work that studies in detail the civil liability regime of administrators and directors and insurance solutions, from the experience of its authors, who seek a pragmatic approach to solving the issues current on the matter.

December 2 2019

Speakers:

  • Maria Jose Cruz, M&A Director for the Mediterranean region, RiskPoint A / S
  • Jose bridge, Lawyer, Gómez-Acebo & Pombo Abogados, GA_P

 

Moderator: Gonzalo Iturmendi Morales, Managing Partner, G. Iturmendi y Asociados Law Firm. Member of the Academic Council of Fide

 

Summary:

Traditionally, the buying and selling parties in M&A operations have shared responsibility for the possible contingencies that may exist in the company, business or assets that are the object of the operation. The negotiation between them of said division of responsibilities is probably the question that usually takes the most effort. Following Anglo-Saxon models, such regulation is done through the contractual mechanisms of representations and guarantees (“representations and warranties") And indemnities ("indemnities”), And the procedures to follow to claim an infringement of said manifestations or the occurrence of a contingency that gives rise to compensation.

Insurers have progressively designed products with which to insure said risks of M&A operations, insurance that is not limited to insuring the contractually agreed risks, but can go further, covering fiscal or legal treatment of the operation, assuming responsibilities in relation to ongoing litigation or contingencies that the parties were not willing to assume and would have resulted in deal breakers, or guaranteeing the continuity of an activity under existing licenses.

This type of insurance has evolved remarkably. It began by insuring the responsibilities assumed by one of the parties in the M&A contracts (usually the sellers), acting as a kind of reinsurance of the contractual coverage, to later insure the buyers by granting them coverage in relation to possible contingencies, risks or amounts. not assumed by the sellers, until reaching the current situation in which the insurers insure possible breaches of statements and guarantees made by the seller but for which the seller does not assume any responsibility.

The objective of the session was to analyze the risks and M&A insurance, to understand what they cover, the importance of buyer due diligence, understand the differences between the different types of insurance, as well as what are the main issues subject of negotiation.

We have also analyzed the impact of insurance on M&A operations, on auditing processes and on the contracts that are signed. It is possible that the scheme of M&A operations contracts will change in the coming years, as the regulation of representations and guarantees becomes a matter to be dealt with by insurers.

The rise of these insurances was addressed, looking at the sectors in which they are most used in Spain (real estate and renewable energies).

11 of February 2020

Speaker: José Luis Seoane Spiegelberg, Magistrate of Chamber I of the Supreme Court

Moderator: Vicente Magro Servet, Magistrate of Chamber II of the Supreme Court

Summary:

The determination of whether the wrongful act is a real and true cause of the damage, leads us to analyze the operation of the causal relationship in civil liability processes, the active or passive conduct of a subject of law and the harmful result produced.

The objective of the session was to analyze the operation and limits of material and natural causation and legal causation in civil liability processes and whether or not material causation is detached from legal connotations.

There is a material causality and a legal causality, both closely linked. The session will address –analyzing specific cases- the conditioning of the judicial assessments and the normative criteria, among which are the assessment rules of the evidence and the burden thereof, such as the principle of availability and evidentiary ease of the articles 217 and 218 of the Civil Procedure Law. The Supreme Court adopted the doctrine of objective imputation, demanding double causality: physical, natural or empirical, depending on the evidentiary activity displayed in the process, determined by the intellectual experiment of the appreciation of whether the prosecuted conduct constituted a conditio sine qua non in the genesis of the damage, according to the principles of European civil liability law; or according to the doctrine of "But for test" of Anglo-Saxon law ("if it had not been for"), which acts as a presupposition of a necessary and additional legal causality, the latter operating through the selection of legally relevant causes for the attribution of a fact to human conduct, handling criteria such as the end of protection of the norm, the increase in risk, the alternative behavior in accordance with the law, the prohibition of return, the competence of the victim, the voluntary assumption of risks, the general risks of life, among others, through the which were resolved the successive claims of civil responsibility.

March

Speakers: 

  • Lourdes Arastey, Magistrate of the Social Chamber, Supreme Court
  • Vicente Magro Servet, Magistrate of Chamber II, Supreme Court
  • José Luis Seoene Spiegelberg, Magistrate of Chamber I of the Supreme Court
  • Cesar Tolosa, Magistrate of the Contentious-Administrative Chamber, Supreme Court

 

Moderator: Gonzalo Iturmendi Morales, Lawyer, Partner and Director of Bufete G. Iturmendi y Asociados, SLP, Member of the Academic Council of Fide

Summary:

We approach this issue from four different perspectives, depending on the four jurisdictions, civil, criminal, contentious-administrative and labor. We have four experts with knowledge of material law from each of the aforementioned jurisdictions who will provide their views on the legal consequences of force majeure due to the coronavirus epidemic in non-compliance with civil, criminal, administrative and labor obligations. What are the limits of liability when force majeure occurs in a case like this?

The different views and interpretations of the legal reality of the same phenomenon (the coronavirus and force majeure) from four sources of law, but the same legal system, can draw attention. To all this we must add that - for the moment - we are not talking about a pandemic or a catastrophe; In other words, now we are more faced with a “fear of fear” that is generating chains of non-compliance, border closures, etc. actions by companies, Administrations, professionals, etc. that can be more or less justified by the prevention and control measures of the organizations.

Academic coordination: Carmen Hermida

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