Document Type

Article

Publication Date

2021

Abstract

In principle, governments could protect against the potential economic devastation of future pandemics by requiring businesses to insure against pandemic-related risks. In practice, though, insurers do not currently offer pandemic insurance. Although they may well be able to obtain sufficient actuarial data to set pandemic underwriting standards and rate tables, insurers are concerned that they lack sufficient capacity, as an industry, to cover those risks, which are likely to occur worldwide and to be highly correlated. Pandemics therefore are in the class of risks, like war, terrorism, and riots, that are deemed “uninsurable,” at least by private markets. This Article examines how risk securitization—a relatively recent and innovative private-sector alternative to government insurance, funded by the issuance of catastrophe (CAT) bonds—could be used to help insure pandemic-related risks. Risk securitization would utilize the “deep pockets” of the global capital markets, which have a far greater capacity than the global insurance markets, to absorb these risks. The Article also identifies and analyzes the novel legal and economic challenges that risk securitization would raise. Certain of these challenges parallel but are more complex than those arising in structuring traditional securitization transactions. Other challenges involve issues of first impression, including the extent to which risk securitization should be regulated as a form of reinsurance, the constitutionality of requiring that businesses purchase pandemic insurance, and the legality and relative prioritization of public-private risk sharing—such as Chubb’s recent government-risk-sharing proposal.

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Library of Congress Subject Headings

Disaster insurance, Security (Law), Pandemics--Economic aspects, Catastrophe bonds, Financial risk management

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