Insurance Litigation 2026 Comparisons

Most Belgian insurance disputes relate to claims handling in the liability insurance sector. Coverage disputes are rare, especially in financial lines and industrial risk insurance, because of major broker commercial pressure on insurers.

A recurring trend in recent years has been for Belgian courts, including the Belgian Court of Cassation (the highest court for all civil disputes, including insurance disputes), deciding in favour of the insured or policyholder, rather than in favour of the insurer in matters where the insurance policy is not clear, or where there is discussion about the interpretation of the relevant provision in the Belgian Insurance Act.

Clauses that typically give rise to contention are forfeiture clauses (forfeiting cover in case of breach of a specific obligation by the insured) and clauses related to gross negligence and intentional damage.

Many insurance coverage disputes are settled after negotiations between the policyholder, the broker and the insurer. The same is true for reinsurance disputes. Parties often prefer settlement for commercial reasons, particularly where the law is unclear and the outcomes of disputes are unpredictable. Depending on the chosen court, litigation in Belgium may take five years or more before a judgment (on appeal) is rendered. Furthermore, there is still a lot of insurance capacity in industrial risk insurance (more than in financial lines insurance) which puts pressure on insurers to settle coverage disputes.

If parties choose litigation, cases are either handled through the court system or through arbitration. Insurance mediation, on the other hand, is seldom applied. Belgian law does not (yet) know the concept of court-ordered or imposed mediation; it largely depends on the judge encouraging the parties to mediate, as well as the parties’ position towards mediation. Overall, mediation is not (yet) very popular or widely used, probably because many disputes are settled without the assistance of a mediator.

The provisions of the Rome I Regulation on the law applicable to contractual obligations will apply to determine the law applicable to insurance contracts. The basic principle of Rome I is that the insurance contract shall be governed by the law chosen by the parties.

However, this Regulation has particular provisions to protect the interests of policyholders and insureds; it severely limits the choice of applicable law for so-called “mass risk insurance contracts”, which include consumer contracts but can also include liability or property insurance where the policyholder is a small or medium-sized company.

These protective provisions do not apply in case of so-called “large risk insurance contracts”, for which contractual freedom remains the basic principle and the insurance contract is governed by the law chosen by the parties. Almost all large risk insurance contracts on the Belgian market include an explicit choice-of-law clause, often applying Belgian law.

Reinsurance contracts in their entirety do not fall under the protective provisions of Rome I and contractual freedom prevails. Reinsurance contracts are typically not governed by Belgian law but rather by the law of the seat of the reinsurer or English law.

Jurisdiction disputes between Belgian policyholders/insurers and EU insurers/policyholders are governed by the Brussels I bis Regulation, which contains specific provisions on insurance disputes. In essence, these provisions afford policyholders and insureds a choice to sue insurers before the courts of their own country or, in the case of liability insurance or insurance of immovable property, before the courts of the place where the harmful event occurred. 

However, these protective provisions do not apply in cases of commercial marine and aviation insurance, as well as so-called “large insurance risks”, in which parties can include jurisdiction clauses in the insurance contract, which are generally upheld in practice.

Some policies contain arbitration clauses and no jurisdiction clauses. Arbitration clauses are more popular in financial lines insurance contracts, such as D&O and W&I policies.

In case of disputes with non-EU insurers, it must first be established whether an international treaty on this subject is in place or not. This is rarely the case. If there is no relevant international treaty in place, the jurisdiction rules of the Belgian International Private Law Code will apply.

Conflicts of law and jurisdiction issues are usually resolved in Belgium by applying the relevant provisions of the Rome I Regulation or the Brussels I bis Regulation. However, disputes around jurisdiction and choice of law are not especially frequent, as most policies provide for clear and enforceable applicable law and jurisdiction/arbitration clauses. For complex insurance disputes, Belgian judges must be familiar with the subtleties in the coverage provided by various insurance policies. Another challenge in arbitration is that it is not always easy in a tight market like Belgium to find a sufficient number of independent arbitrators with availability.

In Belgium, exclusive jurisdiction clauses or exclusive arbitration clauses are usually enforced; claims brought before a Belgian court against such clauses will usually be dismissed. However, this requires the jurisdiction and arbitration clauses comply with mandatory legislation and are drafted in a sufficiently clear manner.

There is no settled case law related to AI-related dispute resolution, choice of law and jurisdiction. However, since many key issues regarding AI, jurisdiction and choice of law are regulated at the EU level, Belgian legal developments in these areas will likely follow developments at the EU level.

The arbitration provisions in certain types of commercial insurance contracts and in reinsurance are enforced by the courts; arbitration is a recognised and regulated dispute resolution mechanism under the Belgian Judicial Code, including provisions governing the issue of enforcement of arbitral awards. Courts must declare themselves without jurisdiction if a valid arbitration clause is invoked by one of the parties before any substantive argument on the merits is raised (Article 1679, §1 of the Judicial Code).

Arbitration is, however, not permitted in the case of many private (non-marine) insurance disputes unless agreed after the dispute arose, which, in practice, rarely occurs.

Arbitration is often used in case of industrial risk insurance, financial lines, professional indemnity, casualty and reinsurance disputes. There is no real clear preference for institutional arbitration (in Belgium, often CEPANI arbitration) as opposed to ad hoc arbitration. Expert determination is often incorrectly labelled as arbitration in Belgian insurance contracts.

Belgium is a party to the New York Convention, which facilitates the enforcement of foreign awards in Belgium. Parties must file an enforcement request with one of the courts of first instance in the city of an appeal court of the (legal) place of arbitration or, in case of a foreign place of arbitration, of the place where the case would have been tried in the absence of arbitration. The test applied by the court will be fairly limited.

In essence, the court will check:

• whether the parties agreed to arbitration;
• whether the rights of defence of any of the parties were not violated; and
• whether the arbitration award does not violate any provisions of public order in Belgium.

In case of a domestic award, the party that was convicted may also apply to the same court to obtain a ruling setting aside or annulling the arbitral award.

Arbitration is most frequently used in financial lines insurance policies and is also used in industrial risk insurance, professional indemnity, casualty and reinsurance disputes. W&I insurance contracts, in particular, typically have a Cepani or ICC arbitration clause. Arbitration proceedings are indeed confidential, although arbitration awards in coverage disputes are sometimes published in legal journals with the approvals of both parties because of their very relevant legal learnings. Unless otherwise provided for by the parties (which is rarely the case), arbitration is in first and final instance and there is no appeal possibility. Annulment proceedings do not constitute a rehearing of the case, as they are based on a limited number of legal grounds.

In reinsurance contracts, Bermuda arbitration, the London Court of International Arbitration (LCIA) arbitration and ARIAS arbitration are often applied, usually in combination with Bermuda or English law. These clauses are valid and enforceable in the context of a reinsurance agreement.

Mediation has slowly started to find its way in insurance policies and is used more often as a dispute resolution mechanism for coverage disputes. Insurance policy wordings are not generally adapted based on results achieved in coverage disputes.

A recurring trend in recent years is that when interpreting policy wordings, some Belgian courts appear to decide, as a rule, in favour of the insured or policyholder, rather than in favour of the insurer. There is a specific provision in the Belgian Insurance Act on interpretation, which states that ‘in case of doubt’ about the meaning of a policy clause, the interpretation that is most favourable to the policyholder or insured will prevail. This provision is sometimes used to ensure a positive outcome for the policyholder or insured, even in cases where the clause as such is drafted in a clear manner, using generally accepted market wording, where it can therefore be argued that there is no actual doubt about the meaning of a policy clause. Lower courts apply this interpretation rule to give a different meaning to the clause than the generally accepted market meaning.

This rule of interpretation, however, does not apply to large risk insurance contracts, in which case the general interpretation rules apply.

Many cyber policy disputes relate to the application of prevention forfeiture clauses and the quantum determination of third-party claims, which may sometimes be exaggerated by policyholders in order to maintain good commercial relations with customers and/or suppliers who were also impacted by the cyber incident. Other types of coverage disputes that regularly occur are those related to internal errors (within the policyholder’s organisation) and disputes related to the interpretation and scope of (technical) policy definitions in light of technological evolutions.

Insurance undertakings generally take care to exclude coverage for systemic events. In technology related insurance, these exclusions are generally legally valid and enforceable, provided that they are clearly drafted and do not frustrate the main purpose of the coverage.

There often are questions on aggregation, serial loss clauses and allocation of insurance claims to one or more policy periods. In particular, there has been an increase in discussions on serial loss clauses in the construction sector or in (product) liability insurance due to the use of new techniques and materials. However, there is little Belgian case law available on this subject, which makes this a complex matter for Belgian insurance lawyers to advise upon; disputes of this type are therefore often settled.

Sanction clauses are common in any Belgian insurance contract but do not generally lead to coverage disputes specifically. The Russia-Ukraine conflict has shown that sanction clauses are indeed strictly applied by insurers and have, in some cases, limited insurers’ ability to pay claims or insure certain risks, for example risks in the financial sector.

As of 1 October 2024, the Insurance Act introduced a uniform legal framework for non-marine insurance contracts requiring insurers to respond to claims within three months of the claim, including giving reasoned answers when coverage is disputed, and to pay compensation within 30 days after agreement with the insured. Insurers that miss the response deadline face a flat penalty of EUR300, which can be increased to an additional penalty of EUR300 per day if the insurer still fails to respond after being formally notified. Furthermore, late payment for undisputed/agreed claims triggers high default interest.

Based on this legislation, insurers, in theory, now face hard deadlines and automatic financial penalties, but some grey areas remain, in particular when applied to industrial risks. It is, for example, not clear at which time the insurer is deemed to have sufficient information in case of a complex loss to provide a timely response to a claim, or what constitutes a ‘reasoned answer’ from the insurer when coverage is disputed or denied.

Since 2003, Belgium has imposed minimum coverage in cases of listed natural disasters in certain property insurance contracts. This regime is not applicable to insured property of high value (such as industrial sites). The exact amount of mandatory coverage is limited, and based on the composition of the insurer’s portfolio and premium income in a certain policy year. The protection of this regime, however, appeared insufficient when the south of Belgium faced extreme flooding in July 2021. Political pressure led insurers to contribute to losses even in excess of the statutory minimum coverage. The legislature followed up with an increase of the minimum book-wide coverage that property insurers have to provide for natural disasters.

Meanwhile, a more fundamental update is on the table between policymakers and the insurance sector, but this is complicated by the required involvement of both federal and regional levels of government. Stakeholders are discussing a clearer and more efficient public-private partnership between the government, insurers, and reinsurers and increased investment in prevention.

Specific issues may arise with MGAs, TPAs and other agents who take policy application positions after a loss, although they may not be authorised to do so under their delegated authority agreement or co-operation agreement with the insurer. In such cases, courts will nevertheless often condemn insurers based on the statements regarding coverage made by those entities, as they will consider the insurers to have authorised the MGA or the agent to make such statements about coverage after a loss.

Policyholders and insureds in financial lines insurance policies are becoming increasingly creative in finding ways to make insurers contribute in convictions or settlements, even if they had not notified losses before to their insurers. One of the factors contributing to this trend is the high evidentiary threshold for insurers faced with a claim that was notified late. In such case, insurers must either demonstrate fraud by the insured or a financial loss resulting from such late notification, which in practice can pose serious difficulties.

In addition, since 2025, Belgian law has a new legislative framework for non-contractual liability, which has made it easier to claim both from the company and its directors and officers.

A key trend in casualty coverage disputes is the increase in international disputes regarding international insurance programs, where it appears that jurisdiction or arbitration clauses are not aligned amongst the various linked contracts and/or the contracts with the broker. This leads to an increased need for insurers to instruct foreign legal counsel alongside local (coverage or monitoring) legal counsel; this increases the cost of litigation for insurers.

Claims against entities whose liability is insured vary widely and depend on their activities.

Under Belgian law, liability insurers are obliged to pay for the defence costs of their insured even above the insured sum, which includes lawyers’ and experts’ fees, as well as also judicial costs. This is related to the duty of the liability insurer to take the lead in the defence of the claim brought against the insured.

Moreover, insurers have a legal right of recourse against third parties that are liable for an insured loss or towards their own insured. Insurers can exercise such a claim either in the name of the insured or in their own name, inter alia, depending on the date of payment of the indemnity by the insurer. In property subrogation claims, property insurers often pay the lawyers’ and experts’ fees, even if deductibles (and, as such, the part of the loss that befalls the insured), are rather high.

In general, litigation funding is not very common or popular in Belgium, mainly because the cost of Belgian litigation compared to other major jurisdictions (especially the USA and the UK) is relatively modest.

Insurers are increasingly investing in AI-powered claims handling, including tools to detect insurance fraud. This is mostly visible at the level of smaller claims.

The first cases of professional liability related to AI-related wrongful advice are appearing, but it is too soon to draw any general conclusions in this matter.

Litigation funding is not very common in Belgium, and although some litigation funding products and offerors appear to have become more active, they do not yet seem to have found their way into insurance coverage disputes.

That aside, the court rules on reimbursement of lawyers’ fees in large commercial disputes are not expected to change significantly in the next few years. In Belgium, losing parties do not have to reimburse the winning party for its full defence costs and attorneys’ fees, except in arbitration, where this is left to the parties’ agreement or, in the absence thereof, to the decision of the arbitrators. In state court litigation, the winning party may only recover a maximum amount of EUR47,093,02 for claims with a value higher than EUR1 million. In most cases, this amount is not sufficient to cover the winning party's full legal fees and expenses.

Protection against costs risk insurance products, which are meant to protect insureds against awards requiring them to pay the litigation costs of their adverse parties, are not yet widely known or established in the Belgian market. It will have to be seen to what extent they may become more popular or in demand in the future, for instance in arbitration. For proceedings before state courts, the need for such insurance is rather limited given the relatively low lump sum indemnities that are awarded to the winning party in a dispute.

So-called legal expenses insurance, which will cover plaintiff’s lawyers’ fees, has existed for many years, usually in connection with other insurance products (third-party motor liability insurance, fire insurance, etc) and in consumer markets.

To date, there is no specific experience in Belgium with this issue, but it is expected that this may now happen in the next few months or years. The Belgian sector federation of insurance companies has recently issued a warning that artificial intelligence is making insurance fraud easier, allowing scammers to fabricate convincing fake photos or invoices, and that it has seen a significant increase in the amount of proven insurance fraud, likely due to AI.

Under the Belgian Insurance Act, third parties have a direct claim against liability insurers. This applies across lines (motor car liability, product liability, public liability professional indemnity, D&O liability and environmental liability). However, this does not apply in cases of marine liability insurance or liability insurance relating to carriage of goods, except regarding luggage or moving.

The direct action of the injured third party against the liability insurer is time-barred five years after the damage-causing act or, if a crime has been committed, the crime. However, if the injured party can prove they became aware of their direct action right against the liability insurer on a later date, the statute of limitations will start to run as from that later date.

In general, direct actions against liability insurers are common and well established in Belgium.

Insurers are much more aware of the need for co-ordinated legal responses and strategies to address serial and cross-border claims. As a result, they are increasingly appointing monitoring legal counsel alongside coverage or defence counsel.

There is no statistical information available on the impact of geopolitical developments on the volume and nature of insurance disputes in Belgium. Furthermore, because most reinsurance disputes are handled in non-Belgian arbitration or courts, it is impossible to say to what extent there has been an increase in reinsurance litigation with a Belgian element.

Sanctions regimes and restrictions on cross-border payments have not had a significant influence on claims handling, coverage positions or dispute outcomes.

The Belgian terrorism insurance legal framework has recently been updated to improve clarity and remove hurdles for victims of terrorist attacks to obtain compensation. However, except for specific types of insurance mostly relevant to private individuals (inter alia labour accident insurance, motor vehicle liability insurance and property insurance relating to so-called “simple risk” properties, eg, private residences, accident, sickness and life insurance), insurers are allowed to exclude terrorism risk from cover insofar as they do so in clear and specific terms.

As a rule, war and civil war are excluded from cover under the Belgian Insurance Act, unless otherwise provided in the insurance contract. The wording of war and civil war exclusion clauses in commercial insurance contracts has evolved in recent years and has become more sophisticated in some cases, especially in the maritime sector. There is however no recent published Belgian case law available on the interpretation of such clauses.

There have been no new categories of insured losses or aggregation issues because of geopolitical disruptions regarding supply chains. However, due to changes made to international treaties, there have been specific questions on the insurability of risks related to the defence industry.

Underwriters will likely remain critical when faced with demand for marine and credit risk cover involving areas with increased geopolitical tensions. As to disputes, it can be expected that insurers will closely follow up on claims where certain clauses that are relevant in case of geopolitical turmoil (eg, aggregation clauses, war risk exclusions and exclusions of pure economic loss) would be at stake, to avoid negative precedents. A similar evolution was seen during the COVID-19 pandemic.

The emerging risks in the insurance market include the following:

• Climate change – increasing frequency and severity of extreme weather events are reshaping insurance policies and premiums.
• Artificial intelligence – AI is transforming underwriting and claims processing, making it more efficient but also presenting new challenges. New technologies, including AI, increase the risk of fraud and phishing, which trigger further insurance needs for financial service providers and their clients.
• Cybersecurity – the rise of cyber threats necessitates stronger security measures and increased demand for cyber insurance.
• Technological concentration – the concentration of technological power is creating new risks that insurers must navigate.
• Geopolitical shifts – changes in global politics and economic conditions are impacting insurance strategies and risk management.

These risks are driving significant changes in the insurance landscape, necessitating adaptation and innovation from insurers.

The insurance industry in Belgium is undergoing a significant transformation driven by the integration of environmental, social, and governance (ESG) factors, and there is an ongoing debate in Belgian politics on how the insurance industry could do more in cases of natural disasters caused by climate change.

These factors are reshaping the industry by influencing product development, innovation, and business strategies. Some examples:

• Product Development – insurers are introducing new policies and coverage options that specifically address environmental risks, such as battery parks, renewable energy insurance for wind farms and solar power installations.
• Risk Assessment – ESG factors are being incorporated into risk assessment models to better understand and manage the risks associated with policies, leading to more sustainable and resilient outcomes.
• Investment Portfolios – insurers are shifting their investment portfolios towards greener assets, aligning with the EU's Green Deal objective of climate neutrality by 2050.
• Customer Engagement – ESG is reshaping the insurance industry by promoting social equity and enhancing governance practices, which are crucial for building trust and sustainability.
• Technological Integration – the insurance value chain is being leveraged by advanced technology to automate claims processing, improve customer service, and enhance data systems for personalisation and efficiency.

The increased public sensitivity around cyber incidents means that insurers are expected to do more for their insureds when confronted with a cyber attack and resulting loss of data. However, reputational damages caused by such incidents are often very hard to prove under Belgian law.

In addition, data protection and privacy laws are sometimes invoked by insureds strategically to influence the application of the laws of evidence in their favour.

Furthermore, the AI Act qualifies AI systems used for risk assessment and pricing of individual’s life and health insurance as high-risk; changes in underwriting practices are therefore expected.

So far, the rapid growth of data centres is mainly perceived as an opportunity for property underwriters to provide suitable insurance coverage for these data centres. However, in the last few years, there have been a number of fire incidents at such data centres, with resulting liability litigation that may impact the pricing of these policies. Given the potentially systemic nature of incidents at data centres, insurers will likely develop tailored wording (including exclusions) to be able to continue offering attractive insurance products despite this difficulty from an underwriting perspective.

The increased number of mental-health related diagnoses presents a significant challenge for the health insurance industry. In particular, insurers are required to strike the right balance between insurability, affordability and equal treatment in the context of long-term insurance contracts mandated by law.

From an insurance and liability perspective, small modular reactors (“SMRs”) fall within the existing statutory framework set out by the Act of 22 July 1985 on liability in the field of nuclear energy. Regarding coverage adequacy and quantification of risk, the modular and potentially distributed nature of SMR deployment (multiple units, potentially at varied sites) creates questions about the aggregation of liability exposure, the adequacy of existing coverage, and how insurers will model and price risk for reactor designs that differ structurally from those on which historical actuarial data is based.

The language of the existing frameworks primarily focuses on fission, and regulators and legislators will need to address this challenge as fusion technology matures.

The Belgian conduct regulator (FSMA) has increasingly focussed on:

• value for money in life insurance, the focus being on recurring fees and pricing transparency, while in non-life insurance, the regulator investigates claims ratios;
• collective or group insurance contracts, in line with European developments;
• proper licensing and registration of intermediaries; and
• anti-money laundering (AML) knowledge and procedures within insurance intermediaries.

The National Bank of Belgium (NBB), which is the insurance undertakings’ prudential regulator, has focused on the increased risk of natural catastrophes, which affects insurers both at the level of coverage due to insureds and at the level of the assets they invest in to comply with their solvency requirements.

To date, no significant legislative or regulatory developments that may affect insurance coverage, insurance litigation or claims have been identified. However, it is possible they will be enacted in the near future, particularly in relation to climate change and natural disasters.