By Award No. 155292 of March 18, 2026, an arbitral tribunal of the Bogotá Chamber of Commerce Arbitration and Conciliation Center (the “Tribunal”) resolved a dispute between a company insured under a fidelity and financial risks insurance policy and the insurer that issued the policy, following the latter’s refusal to pay the indemnity claimed by the insured.

The dispute arose from the financial loss suffered by the insured as a result of monetary transfers made by its Director of Accounting to a foreign bank account, pursuant to fraudulent instructions issued by third parties impersonating the company’s managing director and purportedly supported by an advisory firm allegedly engaged by the company.

The coverage under the policy upon which the dispute was centered was “extended forgery” coverage. The insurer denied payment of the indemnity to the insured on the basis of several exclusions: lack of segregation of duties, absence of dual payment controls, and failure to verify and register vendors in advance.

• GENERAL CONSIDERATIONS

The following are the Tribunal’s most significant general considerations in resolving the case:

1. The Concept of a Claim in Insurance

The Tribunal provided a definition of the concept of a claim in the insurance context, clarifying that although there is no statutory definition (as there is with respect to the concept of loss occurrence), a claim constitutes a qualified act that is binding upon the insurer:

“The Commercial Code does not strictly define a claim, as it does with respect to loss occurrence, when Article 1072 provides that ‘[a] loss is understood to be the materialization of the insured risk.’ However, Article 1077 of the same body of law provides that the burden of proof to establish both the occurrence and the amount of the loss lies with the insured.

Accordingly, it may be stated that a claim is the formal procedure by which the insured, beneficiary, or affected third party, as the case may be, requests payment of the indemnity from the insurance company once the loss covered under the policy has ocurred. For a claim to be deemed formally perfected, doctrine and case law have held that, as established by Article 1077 of the Commercial Code, it must be accompained by proof of the ocurrance and amount of the loss; that is, it is a qualified act that must be effective and binding upon the insurer, and not a vague or merely informative communication.”

2. The insurance adjuster neither replaces nor represents the parties

The Tribunal recalled that although it is customary for insurers to rely on adjusters to assist both the insured and the insurer in defining the loss, their role neither represents nor substitutes that of the parties:

“It bears noting that, by virtue of this evidentiary burden, it is common practice in the insurance industry to engage an insurance adjuster, understood as a natural or legal person possessing the expertise and experience required to assist both the insured and the insurer in determining how the damage occurred, whether it is potentially covered, and its amount, without this implying any representation or substitution of either party.”

3. Scope and characteristics of notice of loss

The Tribunal reiterated that notice of loss (i) constitutes notification of the occurrence of a loss, (ii) enables the insurer to take measures it deems necessary to protect its interests, (iii) may be given by any suitable means, (iv) requires no substantiation, and (v) differs from a formal claim:

“Specialized doctrine has clarified the scope of this legal duty, noting that notice of loss entails communication of its occurrence by any suitable means—whether written, by telephone, or even orally—for the purpose of allowing the insurer to timely adopt the measures necessary to safeguard its interests and provide any cooperation that may be appropriate in connection with the loss. It has likewise been emphasized that such notice requires no substantiation and does not, in itself, imply recognition of coverage or of the obligation to indemnify, as it constitutes a preliminary and autonomous act distinct from the claim.

It is therefore a different act from that required when submitting a claim, since the latter, pursuant to Article 1077 of the Commercial Code, requires the insured to effectively establish the occurrence and amount of the loss”

4. The possibility of agreeing upon exclusions and their interpretation

The Tribunal reiterated that insurers are legally entitled to delimit the risks they undertake through policy exclusions. However, such exclusions may not be drafted in a manner that deprives the insurance contract of substantive effect:

“In accordance with judicial precedent, this Arbitral Tribunal understands that, in this case, the exclusions incorporated into the policy must be analyzed not only from the perspective of the insurer’s right to delimit risk pursuant to Article 1056 of the Commercial Code, but also from the standpoint of protecting the insured’s rights. To this end, the operation and effectiveness of such exclusions depend upon the facts giving rise to them being duly proven in the record; they may under no circumstances be extended to situations not contemplated therein; and, in all events, they must not seek to ‘deprive the contract of content,’ but rather must correspond to circumstances in which, given the particular nature of the insurance, the information provided by the insured, and the special conditions of the economic activity conducted by it, it is reasonable to provide for events in which no indemnity shall be payable notwithstanding the occurrence of the loss.”

• CONSIDERATIONS REGARDING THE SPECIFIC CASE

Turning to the specific case, the Tribunal analyzed the claim submitted by the insured under the extended forgery coverage of the fidelity insurance to verify compliance with the burden of proof concerning both the occurrence of the loss and the amount of the claimed loss. The Tribunal reached the following conclusions regarding each element and their relationship to the insurance exclusions:

1. The insured proved the occurrence of the loss

In the Tribunal’s view, the insured submitted sufficient documentation evidencing the occurrence of the loss; therefore, it was incorrect for the insurer to contend that the alleged facts were not established.

The documentation included the insured’s criminal complaint to the authorities, the invoice issued by the fraudsters bearing the forged signature of the company’s managing director requesting payment, proof of the transfers made by the company, and the employment contracts of the employees involved in the transfer:

“Although the Respondent stated in its statement of defense that the foregoing facts were not known to it, the Tribunal notes that from the evidentiary record submitted—not only the documentary evidence, including electronic communications exchanged between [the insured] and the fraudsters, evidenced through emails, but also the witness testimony and party examinations rendered during the proceedings—the existence of fraudulent communications inducing the Claimant to make the payment was established, the coverage of which is disputed in these proceedings.”

2. The insured proved the amount of the loss

The Tribunal found that the insured proved the amount of the loss and that it fell within the insured limit. However, it clarified that this alone does not entail recognition of an indemnifiable loss:

“Accordingly, in the Tribunal’s view, the amount of the fraud was duly established in the record in a total sum of nine hundred fifty-two thousand seven hundred twenty-three United States dollars (USD 952,723), which falls within the insured limit of the relevant coverage, without prejudice to application of the contractually agreed deductible, if applicable.

However, proof of the amount of the fraud does not, by itself, entail recognition of an indemnifiable loss. Such recognition presupposes determining whether the facts fall within the policy’s coverage or correspond to losses expressly excluded therefrom, which issue shall be analyzed in a subsequent chapter of this Award.”

3. The loss was timely discovered and the claim timely submitted

The Tribunal recalled that the insurance had been issued on a discovery basis with an unlimited retroactive period. Accordingly, determining coverage required identifying three central elements: “(i) the date of occurrence of the loss; (ii) the date of its discovery and subsequent claim; and (iii) their correspondence with the policy period and the agreed retroactivity clause.”

Applying these criteria to the evidentiary record, the Tribunal concluded that (i) the loss was discovered during the insurance period, (ii) the claim was submitted within two years of discovery, and (iii) the date on which the fraud was consummated was irrelevant because under discovery-based coverage the relevant date is discovery, not occurrence.

4. The policy exclusions were reasonable

The Tribunal found that the exclusions invoked by the insurer as defenses to liability were neither unreasonable nor did they deprive the policy of substantive effect; rather, they are common in this type of insurance:”

“For the Tribunal, it is neither illogical, unreasonable, out of context, nor foreign to this insurance contract that [the insurer] should not be required to pay the corresponding indemnity, even where the loss has occurred, in cases where (i) due to the absence of segregation of duties, a transaction is controlled by a single employee from beginning to end; (ii) due to the absence of dual control over payments, fund transfers, or remittances, these are controlled or carried out by a single employee; and (iii) the transfer of funds was made to third parties not duly qualified as authorized vendors or clients of the insured. For the Tribunal, these exclusions are not foreign to this type of insurance, since it is reasonable for the insurer to exclude losses caused or facilitated by the absence of segregation of duties, the lack of dual payment controls, or the fact that the third party was not qualified or registered as a vendor of the insured.”

[…]

The Tribunal further observes that the record does not establish that such contractual provisions constitute a mechanism intended to ‘deprive the contract of content.’”

5. The policy exclusions applied to the specific case

After analyzing the evidentiary record, the Tribunal concluded that the exclusions relating to losses arising from (i) lack of segregation of duties and dual payment controls, and (ii) transfers made to unqualified and previously unverified vendors, were applicable to the specific case.

On the one hand, it was established that the insured company did in fact maintain segregation-of-duties systems and dual payment controls. However, in the fraudulent transaction at issue, the employee who executed the payment bypassed those control mechanisms and concentrated the entire payment operation in his own hands.

On the other hand, it was also established that the insured company failed to comply with its own internal procedures for prior registration and evaluation of vendors, which contributed to the claimed loss.