Guernsey's position as Europe's leading captive
insurance domicile has made the jurisdiction renowned for captive
insurance activity - a large proportion of which provides general
insurance cover to UK parents, many of them listed companies.
Indeed, approximately 40% of the leading companies on the London
Stock Exchange and 95 of the global 500 companies have captives in
Guernsey. However, it is also home to a number of insurers and
reinsurers underwriting third party risks including life
insurance/assurance as well as more exotic risks such as kidnap and
ransom and "after the event" insurance.
Guernsey's long-established protected cell companies ("PCC") (as well as its younger offspring, the incorporated cell company ("ICC")) are frequently used as incubators for small captive businesses and as special purpose vehicles for insurance linked securities and transformer structures which convert financial risk into insurance risk and vice versa. (More information on insurance linked securities can be found in a separate note.)
Clients come to Carey Olsen because of our extensive experience, industry know-how and proven track record in advising the insurance industry. We advise on general insurance and reinsurance in an offshore context. With years of experience in advising on protected and incorporated cell companies we're also the legal adviser of choice on complex risk transfer structures including transformer vehicles.
A number of our lawyers previously worked in the insurance and reinsurance departments of other international law firms and sit on the boards of locally-licensed insurance companies. This brings a practical, commercial dimension to the team's experience and advice. Our clients include insurers, reinsurers, intermediaries, brokers and other financial services companies.
This article summarises the legal framework underpinning Guernsey's successful and diverse insurance sector.
Insurers and reinsurers in Guernsey are governed by the Insurance Business (Bailiwick of Guernsey) Law, 2002 (the "Law"). The definition of insurance in the Law includes reinsurance and accordingly all references in this article to insurance or to insurers apply equally to reinsurance and to reinsurers. Under the Law, a person must not carry on or hold themselves out as carrying on insurance business in or from within the Bailiwick of Guernsey ("Guernsey") unless licensed to do so.
The Law distinguishes general insurance and long-term (life) insurance business. Other than in the case of a cell company (i.e. a PCC or ICC), a single company cannot be licensed to conduct both longterm and general insurance business. In addition, a distinction is drawn between domestic insurers who insure persons or property in Guernsey and international insurers who write business outside the islands.
A person wishing to establish a licensed insurer in Guernsey must satisfy the Guernsey regulator, the Guernsey Financial Services Commission (the "Commission"), that it meets the licensing criteria set out in Schedule 7 to the Law and that any person who is to be a director, partner, manager, controller or general representative of the insurer will also meet those criteria. Schedule 7 requires that the insurance business will be carried on with prudence, integrity, professional skill and in a manner which will not tend to bring Guernsey into disrepute as an international finance centre. In addition, each of the persons listed above must be fit and proper having regard to their probity, competence, experience, judgement, qualifications, knowledge and understanding of the legal and professional obligations to be assumed and policies, procedures and controls to be implemented.
The business of every licensed insurer must be directed by two individuals of appropriate standing and experience who are independent of each other. In addition, every licensed insurer must appoint at least one entirely independent non-executive director (i.e. not connected to the insurer's shareholders or the appointed manager (if any)) as well as a general representative who is authorised to accept service of official notices in Guernsey.
To ensure that the mind, management and control of the insurer remains in Guernsey, locally licensed insurers usually appoint a majority of Guernsey residents to the board and board meetings are usually held in the island. Most Guernsey licensed insurers have no employees but appoint an entirely nonexecutive board of directors supported by a local licensed insurance manager. Corporate directors may not be appointed to a Guernsey licensed insurer.
As one would expect, Guernsey licensed insurers are subject to statutory capital and solvency requirements. The minimum paid up capital for a licensed general insurer is £100,000 and £250,000 for a licensed long-term insurer.
It is worth noting that a general insurance company structured as a PCC would commonly issue £100,000 in core shares in order to meet this minimum capital requirement. Although each cell of a PCC must meet the minimum margin of solvency (described below), because a PCC is a single legal entity each cell is not required to be separately capitalised. However, because each incorporated cell of an ICC is a separate legal entity, each incorporated cell must be separately capitalised to meet the minimum capital requirement. Like cells of a PCC, incorporated cells must meet the minimum solvency requirement.
General insurers must also maintain a minimum margin of solvency (i.e. an amount by which its assets exceed its liabilities) of the higher of:
- 18% of net premium income up to £5,000,000; and
- 16% of net premium income thereafter; or
- 5% of loss reserves.
Where the calculation is based on net premium income it must be calculated on both a retrospective and a prospective (i.e. budgeted) basis. If the prospective calculation is at least 10% higher than the retrospective calculation, the prospective calculation must be used for the purposes of calculating solvency.
For long-term (life) insurers, the minimum margin of solvency is the greater of:
- £250,000; or
- 2.5% of the value of the statutory fund maintained by that insurer.
The statutory fund is an account which every Guernsey licensed long-term insurer is required to maintain in respect of receipts from long-term business conducted by it.
The Commission also has the power to vary the minimum capital and margin of solvency requirements generally and frequently does so in the case of companies which are fully funded in respect of the risks they underwrite including, for example, special purpose vehicles.
In addition, every insurer must maintain shareholders' funds (i.e. assets in excess of liabilities) of at least 75% of the minimum capital requirement.
Since 2008, all Guernsey licensed insurers have been required to calculate an own solvency capital assessment ("OSCA") considering the particular risks written by that insurer. That assessment involves the board of directors (or their equivalent) conducting a subjective analysis of the business written by the insurer and determining the appropriate level of capital that should be maintained. The OSCA may be and often is higher than the minimum solvency requirement described above. The OSCA calculation must be lodged with the Commission annually.
The Commission is currently consulting with industry on proposed changes to Guernsey's solvency framework and amendments to the existing regime are anticipated towards the end of 2014 or beginning of 2015.
In addition to the OSCA calculation, every Guernsey licensed insurer must lodge an annual return with the Commission together with its audited accounts. The annual return must include an up to date business plan including financial projections, a statutory solvency calculation, a copy of the auditors' management letter, a summary of the extent of adherence to the corporate governance principles applicable to licensed insurers and a note on how insurance reserves are calculated. Consistent with Guernsey Companies law, every licensed insurer which is a company must be audited annually.
Every licensed insurer which carries on long-term business must appoint an actuary who must prepare an annual report including a valuation of the liabilities of the insurer and an assessment of the surplus or deficit (as appropriate) on the statutory fund.
Long-term insurers must also appoint a Guernsey based trustee to hold in trust assets representing at least 90% of policyholder liabilities. The Commission has a discretion to waive this requirement and will generally do so in respect of life reinsurers.
Change in Control
Strict controls are imposed on the shareholders and key officers of Guernsey licensed insurers. A person acquiring an interest in excess of 5% of the equity share capital (directly or indirectly) of a licensed insurer must notify the Commission. A person proposing to obtain an equity interest of 15% or more or an interest of 50% or more in a cell of a PCC must obtain the consent of the Commission before doing so. In addition, the Commission must approve any proposed change in the directors or officers of a licensed insurer which is a company.
Please note that this briefing is only intended to provide a very general overview of the matters to which it relates. It is not intended as legal advice and should not be relied on as such.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.