Jasmine Landau is an attorney practicing in commercial litigation, international arbitration and insolvency matters at Bedell Cristin. She regularly helps clients navigate data and privacy breaches, including disaster recovery, regulatory reporting and insurance claims. Her experience with recent cyber insurance coverage matters, combined with her academic interests in cyber security and the international law of attribution have yielded a practical perspective that bridges the gap between both worlds. She has recently relocated to the Cayman Islands but was previously in private practice in Toronto, Canada.
Is it War, Peace, or Neither? Judicial interpretations of cyber warfare and insurance contract ‘War Exclusion’ clauses
Insurance companies have traditionally excluded coverage for damages related to "war and hostile acts," but until recently, victims of cyberattacks—even if sustained during wartime—could rely on insurance coverage to help them recover from losses. Not only are courts finding "war" or "peace" harder to define in international law when analysing 'War Exclusion' clauses, but cyberattacks and cyber warfare raise new and complex questions of attribution. In the wake of billion-dollar insurance coverage cases related to the 2017 NotPetya cyberattacks, insurers began taking a new look at their cyber policies; in a controversial move, Lloyd's of London began requiring market insurers to exclude coverage for cyber warfare and state-based cyberattacks. This paper covers important considerations for international law and cyber security experts involved in defining "war," "peace" and attributing cyberattacks. The paper will also assist insurance companies, underwriters and brokers in bringing cyber policies and war exclusions in line with developments in international cyber security law.