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Transaction Liability
(Reps & Warranties)

Essential coverage for your corporate transactions.

At Eirsure we offer Transactional liability insurance that is specialised insurance that protects buyers and sellers in mergers, acquisitions and other corporate transactions from certain financial risks that can arise after the deal closes. It is designed to reduce or transfer the financial exposure that might otherwise be covered by contractual indemnities.

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Expected trends:

Artificial Intelligence (AI), particularly Generative AI (GenAI), is expected to play a critical role in revolutionizing processes such as risk assessment, claims processing, and customer service in the transactional liability space.

The shift from bank lending to private credit has become a significant trend in recent years. As competition in the private credit space grows, more funds and institutional investors are entering the market, leading to a wider array of products. As this trend continues, it will lead to more sophisticated underwriting and lending practices, influencing how risk is assessed and managed.

The property market, a key component of the transactional liability landscape, is showing signs of softening, with the rate of increase in premiums slowing down for most insureds.

The upcoming reinsurance renewal seasons are expected to become more organized, with retention levels stabilizing and rates likely to remain steady or close to current levels.

There is an expected emphasis on underwriting discipline, with a stronger focus on risk selection. Risks that were once considered secondary are now expected to undergo higher scrutiny, highlighting a shift in underwriting priorities.

The increase in capital and investors into the market is anticipated to intensify competition, which could influence pricing strategies and profitability across the industry.

Economic and inflationary data coupled with Geo-political risk in 2025 will impact transactional liability market dynamics, potentially affecting risk assessments and pricing models.

Heightened regulatory oversight along with increased competition are expected to challenge market participants, necessitating strategic adaptations to stay competitive.

Types of Transactional Liability Policies

Tax Indemnity Insurance

Purpose

Provides coverage for known tax exposures that might arise from historical tax issues.

Typical Triggers

Pre-existing tax issues, changes in tax laws, or unexpected audit results.

When Needed

Useful in transactions with complex tax structures across different jurisdictions.

Contingent Liability Insurance

Purpose

Covers known risks that have a contingent probability of materializing after the transaction.

Typical Triggers

Pending litigation, regulatory investigations, or potential environmental liabilities.

When Needed

Suitable for deals where specific, identifiable risks could impact the transaction post-closing.

Representations & Warranties (R&W) Insurance

Purpose

Protects against breaches of the seller’s representations and warranties.

Typical Triggers

Inaccurate financial statements or undisclosed liabilities.

When Needed

R&W insurance offers buyers coverage after the closing for losses, including defense costs, resulting from breaches of the seller’s representations and warranties. This reduces or eliminates the seller’s escrow and offers the buyer additional protection and a longer survival period than what might otherwise be available.

Common Transactional Liability Covers

Representations & Warranties (R&W) Insurance

Protects against breaches of the seller’s representations and warranties.

Tax Indemnity Insurance

Covers historical tax issues.

Contingent Liability Insurance

Addresses risks that could materialise after the transaction.

Reasons for Coverage

Mitigates Financial Risks

Protects against financial loss arising from unforeseen liabilities

Enhances Deal Certainty

Reduces the negotiation time by addressing potential post-transaction disputes.

Increases Transaction Value

Ensures a higher degree of confidence in the deal from all parties involved.

Importance of R&W Insurance

Risk Management:

Addresses breaches of representations and warranties provided by the seller.

Compensation for Unknown Risks

Ensures that the buyer is compensated for unknown risks that become evident after the deal closes.

Timing

Typically arranged at the negotiation stage and should be in place before the transaction closes.

Benefits of Transactional Liability Coverage

Risk Transfer

Transfer certain risks from the buyer and seller to the insurance provider.

Deal Facilitation

Simplifies negotiations by reducing buyer-seller disputes.

Enhances Value Assessment

Assures accurate deal valuation by mitigating post-transaction uncertainties.

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