Legalidad, operancia y análisis crítico de la cláusula de terminación automática de cambio de control, proceso de reorganización, en los seguros de Directores y Administradores (D&O) en Colombia

Abstract

The Colombian legal system seeks to regulate the different disciplines of law in a harmonious manner. In such a way that, when a situation arises that sets two disciplines in motion, it does not generate a contradiction between them. However, as it is intended to demonstrate in this research, when analyzing the meaning of the regulation that applies to the insurance contract, regarding events of change of control or reorganization, and the regulation that applies prevalently in cases of corporate insolvency (Law 1116 of 2006), a discrepancy is evidenced that generates difficulties at the time of its materialization. In addition to the above, companies of all levels and sizes usually take out D&O insurance policies to protect the assets of their directors and administrators and thus enable them to perform their corporate management functions with a certain degree of peace of mind. Bearing in mind the above and without forgetting what is happening in the business sector in the world as a consequence of the pandemic generated by Covid-19, it becomes very relevant to analyze the discrepancies announced. Thus, the question to be answered in the present work of degree is: Are the contractual provisions that allow the insurer to revoke the D&O insurance contract unilaterally once it has initiated a reorganization process, Law 1116 of 2006, ineffective? We will limit ourselves to the reorganization process since, as we will see below, when we are in the presence of a liquidation process one of its effects is, according to numeral 4 of Article 50 of Law 1116 of 2006, the termination of the contracts of successive tract. The purpose of this paper is to address the problems generated in insurance contracts by the existing prohibitions in Law 1116 of 2006, which talks about the different insolvency processes that exist in Colombia, where we will focus on the reorganization process, specifically in the rules that refer to the "Ineffectiveness of contractual stipulations" and the "Continuity of contracts", which we will find in articles 16 and 21, respectively. Thus, in this research work we intend to analyze the meaning of the clauses of the directors and officers (D&O) policies, the clause that grants the insurer the power to terminate the insurance contract in the event that the policyholder entity enters into a business reorganization process. Based on the relevant articles of the Code of Commerce, an interpretative analysis will be made regarding the limits imposed by the Insolvency Law to the insurer to terminate the insurance contracts. Thus, coupled with the analysis of what has happened in other countries, we will seek through an integrated judgment to determine the validity of the exclusion of termination of the insurance contract for entering into reorganization processes, of which Law 1116 of 2006 speaks, the effectiveness of such provision and an interpretative analysis of the existing rules, supported by the interpretation criteria that bring us the law, jurisprudence and doctrine.