Worldwide: Global Corporate Insurance & Regulatory Bulletin

Last Updated: 19 March 2013
Edited by Martin Mankabady , Lawrence R. Hamilton and David W. Alberts

Europe - Solvency II update

TIMING

It was announced on 20 February 2013 that the European Parliament will not consider Omnibus II until its 21-24 October 2013 plenary session. This represents a delay of four months from the previously announced date (10-13 June 2013) and will inevitably result in yet further delay to the implementation of Solvency II.

EIOPA PLANS

The European Insurance and Occupational Pensions Authority ("EIOPA") has announced a plan to bring in Solvency II interim measures from 1 January 2014. These will take the form of guidelines covering the system of governance (including risk management and the process of developing an own risk and solvency assessment), pre-application of internal models and reporting to supervisors.

These guidelines are not intended to anticipate Solvency II but instead to prepare supervisors and undertakings for the new regime in a consistent way. The guidelines will be addressed to national supervisory authorities and will be subject to the "comply or explain" procedure.

EIOPA has said that it plans to hold a public consultation on the proposed guidelines in April/May 2013 and that the guidelines will then be tabled to the EIOPA Board of Supervisors in autumn 2013.

EIOPA has also stated an intention to develop a supervisory handbook that would work as a guidebook for supervision in Solvency II, setting out good practices in all the relevant areas. This handbook is intended to assist in the implementation of a more consistent framework for the conduct of supervision.

UK - Lloyd's publishes Solvency II guidance notes

Lloyd's has published guidance notes on Solvency II in order to provide managing agents with as much clarity and certainty as possible in order to assist in planning. Although Solvency II is still scheduled to enter into force on 1 January 2014, Lloyd's plans are based on an assumption of a 1 January 2016 implementation date - the guidance notes make clear that this assumption is subject to change as further clarification emerges from the EU.

The guidance notes provide information on Lloyd's approach to completing its Solvency II review work, an overview of Lloyd's 2013 Solvency II timetable, and the impact of the Solvency II delay.

Two areas that Lloyd's is said to be monitoring are: (i) the proposal by the European Insurance and Occupational Pensions Authority to introduce Solvency II interim measures from 1 January 2014; and (ii) the FSA's proposed ICAS+ approach (i.e. using Solvency II work to meet ICAS requirements) for capital requirements.

Neither of these is expected to have a significant impact on Lloyd's or its agents. Regarding interim Solvency II measures, Lloyd's considers that the progress that has already been made towards implementing Solvency II and the plans that have been made for transitioning to Solvency II as business as usual should prevent any significant impact. Regarding ICAS+, Lloyd's considers that this is largely consistent with the approach that Lloyd's has already introduced for setting capital from 2013 onwards; Lloyd's agents successfully used Solvency II internal models to meet ICAS requirements during 2012 and to set capital for the 2013 year of account, and Lloyd's intends to continue to use this approach.

UK - FSA comments on the resolution framework for insurers

On 12 February 2013, the FSA Director of Insurance, Julian Adams, gave a speech on the lessons for insurance supervisors from the financial crisis, in which he commented on the resolution framework for insurers.

One of the key issues discussed was the challenge of reconciling the need to maintain the provision of insurance (in order to protect policyholders and avoid disruption to economic activity) with allowing insurers to fail. The FSA wants insurers to be able to exit the market in an orderly fashion which provides continuity of access to critical services. To address this challenge, the FSA needs to have confidence that no insurer is too big, too complex or too interconnected to fail.

It was noted that, although the current system whereby failing insurance firms go into run-off (possibly combined with a scheme of arrangement) has generally proven adequate for dealing with general insurance companies, the FSA has no experience of large failures, particularly with regard to life insurance groups.

The FSA considers that continuity of cover could be at risk in the event of an insurer insolvency. Particular concerns are: (i) run-off involves a trans-generational risk for policyholders whose contracts mature later; (ii) schemes of arrangement are complex and court led processes and Part VII transfers are dependent on the existence of a third party purchaser; and (iii) the value of a firm is significantly destroyed as it descends towards insolvency, leaving less for policyholders and possibly meaning the overall net cost cannot be absorbed by the Financial Services Compensation Scheme ("FSCS").

At a domestic level, the FSA is exploring ways to improve the FSCS's operations and to ensure insolvency arrangements allow the best chance of continuity for the most critical policies.

At an international level, the Financial Stability Board ("FSB") has set out minimum standards that should apply to any financial institution that could be systemically significant or critical if it fails. In addition, the chair of the FSB's group on resolving large and complex financial firms is setting up a workshop on insurance resolution. An assessment will then be made of whether a special resolution regime may be needed for insurers and, if so, what characteristics it would require.

UK - Update on the PRA's role as insurance regulator

On 6 February 2013, the FSA Managing Director of the Prudential Business Unit, Andrew Bailey, gave a speech in which he commented on: (i) why the Prudential Regulation Authority ("PRA") will be supervising insurers alongside banks and major investment firms; (ii) the style of supervision the PRA will adopt; and (iii) the issue of systemic risk for insurers.

The reason for locating insurers in the PRA along with banks is said to be that the role of the prudential supervisor is to ensure that the public and users of financial services, including the corporate sector, can be assured of continuous access to the critical services on which they depend.

In terms of the style of supervision the PRA will adopt, the following key points were made:

  • The PRA will be applying judgment around the framework of rules, in order to be focused on the key risks that matter to its objectives. In particular, it will focus on the big risks that threaten the objectives of safety and soundness and policyholder protection.
  • The PRA will be forward-looking to the risks that may arise, e.g. it is focused on the impact of continuing low interest rates, it is considering the prudential impact of possible outcomes on flood insurance in the UK, etc.
  • The PRA faces the challenge of balancing the use of sensible judgment against the risk of creating undue uncertainty which damages the ability of insurers to do business; it was noted that this will require a greater degree of transparency between: (i) the PRA and firms; and (ii) the PRA and firms on one hand and the public and investors on the other.
  • The PRA will be clear and transparent in its judgments and it will be accountable.
  • The PRA will take the supervision of insurers just as seriously as it takes the supervision of banks. It is putting more emphasis on senior level contact in the new approach in order to deliver key messages clearly to senior management and boards and to understand how firms' governance works in practice.

Regarding the issue of systemic risk for insurers, it was acknowledged that some insurers will pose more risks to the financial system than others, as a result of the interaction of complexity of risk and size, and it was said that supervision should be proportional, with a more enhanced and intensive approach for large and complex firms. A distinction was also drawn between non-life insurance, where the resolution challenge involves ensuring short-term continuity of risk cover, and life insurance, which involves long-term commitments and a greater vulnerability to shocks from the financial markets.

It was, however, said that it does not follow that, just because major banks are systemically important, the same must be true for insurers. Furthermore, if a case can be made for systemic importance of insurers, it does not follow that the same capital treatment of systemic firms and/or a statutory resolution regime are needed as for banks. Any response to perceived systemic risk should be consistent with mitigating the cause of such risk, and work is underway to determine whether insurance would benefit from a special resolution regime that overrides normal insolvency rules in order to enhance the ability to ensure continuity of cover. Although it was considered that the PRA's objective of policyholder protection suggests there is a need for some sort of resolution regime for insurers, it was said that it is important to be clear on what sort of regime would be appropriate.

Following this speech, on 13 February 2013, the FSA sent a letter to firms that will have the PRA as their lead supervisor, setting out detailed information on how firms should prepare for legal cutover to the PRA on 1 April 2013 and including updated FAQs on the transition to the PRA.

The letter notes that, as the PRA will have a different regulatory and supervisory approach to the FSA, existing individual guidance issued by the FSA will not automatically be transitioned to the PRA. Four categories of guidance will be automatically transitioned: (i) individual capital requirements guidance; (ii) individual liquidity guidance; (iii) individual guidance given by the FSA that enables a firm to move from a higher proportionality tier to a lower proportionality tier; and (iv) guidance on the completion and submission of regulatory returns. Other guidance should be reviewed by firms against the PRA's statutory objectives. Any guidance that firms wish the PRA to review (which should not include all guidance previously issued) should be submitted to the PRA by 30 September 2013 and can then be relied upon until the PRA decides whether it remains appropriate or not. Any guidance not referred to the PRA for review will cease to have any status as formal individual guidance from 30 September 2013. The letter notes that this does not mean that firms should necessarily change their behaviour and that this does not change recent risk assessments.

The letter also indicates that the PRA handbook, which will replace the relevant parts of the existing FSA handbook, is expected to be published in March 2013. Following legal cutover, the PRA will amend its own policy materials as an independent body in line with the processes laid down in the Financial Services Act 2012, which will include co-operation with the Financial Conduct Authority and external consultation.

UK - HMRC publishes interim guidance on new corporate tax regime for life insurers

On 14 February 2013, HMRC published interim guidance on the new corporate tax regime for life insurance companies, which commenced on 1 January 2013. The interim guidance relates to:

  • the operation of the rules for allocation of income, gains and profits and losses under the new regime (see here);
  • the operation of the rules for the tax treatment of transfers of long-term business under the new regime (see here); and
  • the interaction of the new regime with the controlled foreign companies legislation (see here).

The interim guidance focuses on key aspects of the new regime and will be replaced by comprehensive guidance on the entirety of the new regime in due course.

Global - IAIS launches self-assessment and peer review on corporate and risk governance

The International Association of Insurance Supervisors ("IAIS") has launched a self-assessment and peer review ("SAPR") on corporate and risk governance, which will assess observance and understanding of the Insurance Core Principles ("ICPs") related to licensing, suitability of persons, corporate governance, and risk management and internal controls (ICPs 4, 5, 7 and 8).

Although not a traditional self-assessment, IAIS members are encouraged to participate in the SAPR. The process will begin with an online survey prepared by an expert team consisting of representatives from the Standards Observance Subcommittee, the Governance and Compliance Subcommittee and the World Bank. Once the four week survey period is closed, the expert team will review the results and produce a draft report setting out a preliminary assessment, which will be circulated to each member who participates in the SAPR.

Members will then be invited to provide comments on and make corrections to the draft report. These will be considered by the expert team, which will then issue a final report to each jurisdiction, following which an aggregate report of the expert team's findings will be prepared.

The SAPR is expected to be completed by the first quarter of 2014.

Global - IAIS publishes comments on consultation on policy measures for global systemically important insurers

On 11 February 2013, the International Association of Insurance Supervisors ("IAIS") published a compilation of the comments it has received on its October 2012 consultation on proposed policy measures for global systemically important insurers ("G-SIIs"). It has published comments organised by responding entity and comments organised by consultation question.

Respondents to the consultation included regulators and other interested parties from Europe, America and Asia, including the Association of British Insurers, the European Commission, the European Insurance and Occupational Pensions Authority, the Institute of International Finance, Insurance Europe, the National Association of Insurance Commissioners and the US Chamber of Commerce.

The IAIS intends to publish the final policy measures in the first half of 2013, along with a list of the first cohort of G-SIIs.

US - New York Department of Financial Services reissues emergency regulations on Superstorm Sandy claims

On 26 February 2013, the New York State Department of Financial Services ("DFS") reissued the emergency regulations originally issued on 29 November 2012 to address the handling of claims relating to losses from Superstorm Sandy. While acknowledging that 94% of the claims relating to residential property policies have been fully resolved, the DFS asserted that "[i]nsurers insuring property in affected areas have not always begun investigating claims, including by deploying insurance adjusters to adjust claims, in a prompt manner...and many claims...are still pending with insurers." Additionally, on 21 February 2013, New York Governor Andrew Cuomo and Superintendent of Financial Services Benjamin Lawsky announced that the DFS was investigating three insurers over their handling of Superstorm Sandy claims. The fact that the DFS apparently did not discuss its concerns with the three insurers before a formal investigation was publicly announced suggests a prosecutorial approach to the industry that commentators have attributed to Superintendent Lawsky's background as a former prosecutor.

The emergency regulations amend Insurance Regulation 64, New York's Unfair Claims Settlement Practices and Claim Cost Control Measures Regulation, to require insurers to do the following with respect to Superstorm Sandy claims:

  • Commence investigations within six business days of receiving notice of a claim (instead of within 15 business days - the usual time period for non-Sandy claims). If the insurer wishes to inspect the damaged or destroyed property, the inspection must occur within the six business day period.
  • Furnish to every claimant or its authorized agent a written notification detailing all items, statements and forms, if any, that the insurer reasonably believes will be required of the claimant, within six business days of receiving notice of the claim (instead of within 15 business days - the usual time period for non-Sandy claims).
  • Notify the claimant in writing if the insurer needs more time to determine whether the claim should be accepted or rejected within 15 business days after receipt of proof of loss or requested information. The notification must include the reasons additional time is needed and the anticipated date a determination on the claim will be made.
  • If the claim remains unsettled, unless the matter is in litigation or arbitration, the insurer shall, 30 days from the date of the initial notification, and every 30 days thereafter, send to the claimant or its authorized agent a letter setting forth the reasons additional time is needed for investigation and the anticipated date a determination on the claim will be made.

If the insurer fails to notify the claimant in writing of the insurer's acceptance or rejection of the claim within 15 days, the insurer is required to submit a weekly report to the DFS specifying the following:

  • the date the loss was alleged to have occurred;
  • the date the claim was filed with the insurer;
  • the date a properly executed proof of loss and receipt of all items, statements and forms required by the insurer were received by the insurer;
  • the alleged estimated amount of the loss;
  • the reason given for the extension;
  • the anticipated date a determination will be made on the claim provided to the claimant;
  • how many extensions have been requested on that claim; and
  • the ZIP code where the loss occurred.

Brazil - Privatization of Latin America's major reinsurer

Over the past few months, IRB-Brasil Resseguros S.A. ("IRB") has once again been in the spotlight of the insurance market, this time because the state-controlled company, created in 1939 with the strategic role of being the sole reinsurer authorized to underwrite reinsurance in Brazil, is finally to be privatized.

Although the privatization of the largest reinsurance company in Latin America is worthy of our attention, this news was not a great surprise to the market as there has been pressure for IRB's privatization since 1998.

At the end of the 1990s, when Brazil was going through a wave of privatizations, the President of the time, Fernando Henrique Cardoso, attempted to privatize IRB but was ultimately unsuccessful for several reasons, including: (i) a lawsuit filed with the Brazilian Supreme Court to frustrate the privatization of IRB; and (ii) a failure to pass the legislation required to end IRB's reinsurance monopoly.

The first step in recommencing the privatization process for IRB was taken in January 2007, when Complementary Law 126/2007 was enacted, which brought significant changes to the Brazilian insurance framework and has affected the entire sector since that date.

Among the main changes brought in by the new regulation were: (i) the end of the reinsurance monopoly, with the opening of the market to other accredited players, including foreign companies; and (ii) the transfer of the regulatory authority for the reinsurance market from IRB to the Brazilian Superintendence of Private Insurance (Superintendancia de Seguros Privados - "SUSEP"), which oversees, regulates and licenses the Brazilian reinsurance market.

As a direct effect of opening the market to other reinsurers, fifteen years after the previous attempts the Brazilian market will finally see the privatization of IRB. A bid invitation containing key information was published on 23 January 2013, which established that the process will be conducted by the Brazilian Development Bank (Banco Nacional de Desenvolvimento Econamico e Social).

According to the bid invitation, the privatization will occur by means of an increase of up to 15% in the corporate capital of IRB by the issue of new common shares which cannot be purchased by the Brazilian Federal Government. The price for each share has been set at BRL 2,577.001. Current private preferred shareholders, which are almost entirely local insurance companies due to a requirement imposed by the old regulation, will have preferred rights to subscribe for the new common shares.

The bid invitation indicates that all preferred shares will be converted into common shares, and a new type of shares called "Golden Shares" will be issued to the Government. The Golden Shares will have specific veto powers in relation to the following matters:

  • change of IRB's corporate name or purpose;
  • transfer of corporate control;
  • changes to IRB's trademark;
  • definition of underwriting and retrocession general policies;
  • corporate transactions such as mergers, transformations, amalgamations, spin-offs, etc. that might result in a loss of rights for the Golden Shares; and
  • any changes to the Golden Shares' rights.

Notwithstanding the above, the bid invitation also states that 50,000 shares currently owned by the Government will be offered to IRB's employees at a price of BRL 2,319.30, which is 10% less than the subscription price for the new shares mentioned above. The remaining shares belonging to the Government are to be transferred to BB Seguros Participasaµes S.A., the insurance arm of Banco de Brasil, a financial institution which is also owned by the Government.

A condition for the privatization is that the new controlling group must commit to making its best efforts to achieve an initial public offering of IRB's stock within five years of the privatization.

Such conditions demonstrate the Government's desire to make IRB more competitive. Although IRB remains the largest reinsurer in Brazil2 six years after the opening of the market, during which 11 players have enrolled with the same status as local reinsurers, the Brazilian Government believes that the entire market will benefit and grow as a result of the privatization of IRB, which will result in an increase in retention capacity and a decrease in insurance and reinsurance prices.

Footnotes

1 Currently, the corporate capital of IRB is BRL 1,350 billion, divided into 500,000 common shares and 500,000 preferred shares. The Brazilian Federal Government owns all the common shares.

2 According to SUSEP's statistics, IRB has collected approximately BRL 1.7 billion in reinsurance premium in the past year, far much than the second major local authorized reinsurer Munich Re, which has collected approximately BRL 363 million in premium.

Previously published in February 2013.

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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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