Keywords: insurance, reinsurance,
RESPONSES TO IAIS CONSULTATION ON BASIC CAPITAL REQUIREMENTS FOR GLOBAL SYSTEMICALLY IMPORTANT INSURERS
As reported in our prior bulletins, on 18 July 2013 the International Association of Insurance Supervisors ("IAIS") published a methodology for identifying global systemically important insurers ("GSIIs") together with a set of policy measures that will apply to such insurers. In December 2013 the IAIS launched a consultation on basic capital requirements ("BCR") for GSIIs.
On 6 February 2014, the IAIS published a compilation of responses, dated 5 February 2014, received in respect of its consultation. Among the key issues that commentators addressed were: (1) the extent to which insurers will have to publicly disclose their BCR; (2) potential conflicts between BCR and Solvency II; (3) the legitimacy of a market-consistent approach to asset valuation; and (4) the capital classifications that will satisfy BCR requirements. The feedback will be used as a basis to inform the upcoming field testing phase and further support the design and development of BCR. The IAIS expects to approve the final BCR proposal in September 2014, to secure approval for the BCR from the Financial Stability Board ("FSB") in October-November 2014, and from the G20 in November 2014.
A link to the full compilation of responses can be found here.
CHINA – NEW MEASURES ON ADMINISTRATION OF ACQUISITIONS AND MERGERS OF INSURANCE COMPANIES
Under new rules issued by the China Insurance Regulatory Commission ("CIRC"), insurance companies in China, both domestic and foreign, will be allowed to acquire and merge with each other for the first time, and acquirers will be able to control two insurance companies that are in the same business. The Measures on Administration of Acquisitions and Mergers of Insurance Companies ("Measures"), effective from 1 June 2014, apply to any acquisition as a result of which the acquirer obtains more than a one-third equity interest in and becomes the largest shareholder of an insurance company target, or as a result of which the acquirer becomes the largest shareholder and controls the insurance company target even if the acquirer holds less than a one-third equity interest in that target insurance company.
An "acquirer" under the Measures includes certain affiliates of the acquirer and persons acting in concert with the acquirer. A person which was affiliated with the acquirer within a period of 12 months prior to the execution of the acquisition agreement will be deemed to be an affiliate. Two or more investors who have invested in the same insurance company within a three-month period will be deemed to be persons acting in concert.
The Measures amount to a relaxation of the current regime in the following respects:
- Under the current regime, two or more insurance companies that are under common control or have a controlling relationship with each other are not permitted to carry on insurance businesses of the same category which can result in conflict of interests or competition between/among each other. In view of the developing maturity of China's anti-monopoly law and the efficiency that could be achieved by the acquisition of distressed insurance companies by other insurance companies operating in the same category of insurance business, the Measures will allow insurance companies to acquire and merge with each other and carry on insurance businesses of the same category.
- Under the current regime, an investor in an insurance company must make capital contributions in cash with its own funds – it may not fund its investment through debt financing. In view of the large-scale capital involved in acquisitions and mergers of insurance companies and the difficulty in raising equity capital within a short period of time even for acquirers in sound financial position, the Measures will allow acquisition or merger transactions to be funded partly through debt financing, provided that the debt portion does not exceed 50% of the total cash consideration involved in the transaction.
- The current regime requires a shareholder to have been invested in the insurance company for a period of more than three years before holding or acquiring more than 20% of the registered capital of an insurance company. The Measures will no longer require compliance with this qualification requirement.
Notwithstanding the above, acquisitions and mergers of insurance companies remain subject to CIRC's approval and a three-year lock-up period during which the acquirer undertakes not to transfer the equity or shares it holds in the insurance company. There continues to be a restriction on owning both a life and property business unless, otherwise permitted by law.
Foreign investors will otherwise remain subject to requirements with respect to foreign-invested insurance companies and other applicable foreign investment rules.
CHINA – INSURERS ALLOWED WIDER INVESTMENT CHANNELS
The CIRC has begun allowing insurers in China to invest in the country's Growth Enterprise Board based in Shenzhen, also known as the ChiNext board. Created in 2009, ChiNext serves as an alternative market for smaller Chinese companies looking to raise capital and has fewer listing requirements than China's main boards in Shanghai and Shenzhen.
However, insurers are prohibited from investing in companies that are under investigation by regulators, have been punished or censured within the last year, or for which the auditors have not endorsed the accounts. There will also be an obligation to report to CIRC if shareholdings reach 5 percent.
Separately, CIRC is running a pilot program to allow certain insurers to invest in blue-chip stocks, with funds from premiums collected before 1999.
It remains to be seen what the take-up will be for these new investment opportunities.
CHINA – NEW BANCASSURANCE RULES
The CBRC and CIRC have jointly introduced new bancassurance rules to help safeguard the interests of customers to whom banks sell insurance products.
The new bancassurance rules came into effect on 1 April 2014. Under the new rules, banks must focus on customer needs. Banks will be required to carry out risk assessments with respect to the capability of the buyers to tolerate risk and suggest insurance products based on such assessments.
The rules appear to have been introduced to counter suggestions by commentators that China's bancassurance market needs tighter regulation to avoid banks ignoring the interests of buyers in favour of commissions.
The new rules require banks to suggest low-risk insurance products with stable returns for low-income households and customers aged over 65. Insurers will have a duty to verify whether an insurance product is suitable to a customer before selling them the policy. If the policies have a non-guaranteed value then, where the premiums are high relative to the customer's income, the customer must sign an acknowledgement.
The consequences of non-compliance are currently uncertain at this time.
CHINA – REGULATIONS REGARDING BITCOIN
On 5 December 2013, the Notice Concerning the Prevention of Risk Related to Bitcoin was jointly issued by the People's Bank of China ("PBOC"), the China Insurance Regulatory Commission ("CIRC"), the China Banking Regulatory Commission ("CBRC"), the China Securities Regulatory Commission ("CSRC"), and the Ministry of Industry and Information Technology ("MIIT"). Bitcoin is a digital or virtual currency and a peer-to-peer payment system.
In summary, the notice prohibits financial institutions (including insurers) from:
- insuring Bitcoin-linked products;
- pricing goods and services in Bitcoin or accepting Bitcoin as payment;
- buying, selling, and direct or indirect trading of Bitcoin;
- investing in Bitcoin trusts, investment funds or other financial products; and
- providing Bitcoin exchange, settlement, storage, hosting, mortgage or other services.
The PBOC has commented that the rationale behind the ban is to prevent money laundering, and noted a concern regarding the speculative nature of Bitcoin.
The notice does not ban use of Bitcoin by private individuals, although such individuals would need to comply with existing legal requirements such as China's exchange control regime. The PBOC has also indicated that companies serving as trading platforms must ask clients to register their personal details including name and identity card number.
CHINA – TAX TO BE DEFERRED ON PENSION CONTRIBUTIONS FROM 1 JAN 2014
On 6 December 2013, the Ministry of Finance, together with the Ministry of Human Resources and Social Security and the State Administration of Taxation issued a "Circular on Issues Concerning the Individual Income Tax on Corporate Annuities and Occupational Annuities" (the "Circular"). The Circular introduced a tax incentive that came into effect on 1 January 2014 to encourage participation of individuals in China in pension insurance products.
The tax incentive defers personal income tax on contributions to employer pension plans and any investment returns arising out of such contributions until withdrawal of the annuity at retirement. However, the tax-exempt pension contribution is not without limitations. The cap is currently set at 4% of monthly salary of the previous year (and at three times the average salary of the relevant city).
This measure has been swiftly introduced following the Communist Party third plenum to quicken old-age pension reforms in view of the low penetration/coverage of state social pension fund.
CHINA – FURTHER REFORMS TO THE INSURANCE BUSINESS IN 2014
At the China Wealth Management 50 Forum held on 10 January 2014, Mr. Chen Wenhui, the deputy chairman of the CIRC, outlined four reforms that will be undertaken:
- establishment of a new system of ratio monitoring of capital operation on the basis of the existing mandatory capital monitoring ratio requirements;
- further broadening of area and scope for investments by improving existing policies on shareholding and real properties as well as offshore investments;
- establishing a central registry-cum-exchange to centralize registration for asset management products and to provide a platform to allow investors to buy and sell asset management products through the central registry-cum-exchange; and
- setting up an asset management association for insurance companies to promote solving of registration problems and other problems in the industry.
Additionally, CIRC has been actively seeking to open up further investment opportunities (see prior article regarding wider investments permitted for insurers).
When compared with last year where CIRC had only focused on two areas for reforms in their use of insurance funds, namely, reform in registration system and expansion in types of insurance asset management products, CIRC has evidently stepped up the reforms in the insurance sector for 2014.
HONG KONG – MEASURES TO ATTRACT CAPTIVE INSURERS TO BE ESTABLISHED IN HONG KONG
Following the proposal set out by the Financial Secretary of Hong Kong in the 2013-2014 Budget speech to diversify Hong Kong's risk management services, the Government, on 27 December 2013, gazetted the Inland Revenue (Amendment) (No.3) Bill 2013 (the "Bill") to effect, inter alia, certain measures to attract offshore insurance companies to set up their captive insurance business in Hong Kong. The Bill passed on 19 March 2014.
It is intended to promote associated areas of the insurance industry and help to expand and develop Hong Kong's insurance business. Qualifying captive insurance companies will enjoy the same concessions as those of a qualifying reinsurance business. The concession in that profits tax will be assessed at one-half of the standard rate of profits tax in respect of a corporation.
In order to qualify for the profits tax break, the captive insurance company must be an authorized captive insurer as defined under the Insurance Companies Ordinance (Cap. 41) and authorized by the Insurance Authority. It will then need to elect in writing to have the profits tax break applied to it pursuant to s.14B(2)(a) of the Inland Revenue Ordinance.
HONG KONG – ESTABLISHMENT OF A NEW INDEPENDENT INSURANCE AUTHORITY
In the near future, Hong Kong will have a new insurance regulator which will be financially and operationally independent from the government – the Independent Insurance Authority ("IIA"). The IIA will replace the current insurance regulator, the Office of the Commissioner of Insurance, which is a government department headed by the Insurance Authority.
In October 2012, the Financial Services and Treasury Bureau ("FSTB") undertook a three-month consultation on key legislative proposals for the new IIA. A Mayer Brown summary of the Consultation Conclusions can be found here.
The Insurance Companies (Amendment) Bill 2014 was introduced on April 16, 2014. It provides provide for, inter alia, the establishment of the IIA and a statutory licensing regime for insurance intermediaries that will replace the existing self-regulatory system.
SINGAPORE – TAX TREATMENT OF INSURANCE INVESTMENTS
On 4 January 2014, Singapore's Court of Appeal issued a landmark decision in Comptroller of Income Tax v BBO  SGCA 10, in relation to the income tax treatment of investment gains made by insurance companies. The Court of Appeal rejected the Comptroller's appeal and agreed with the finding of the High Court that gains arising from the disposal of investments in the insurance industry could, under certain circumstances, be treated as non-taxable capital gains and not as taxable income.
The Court of Appeal made it clear that the holding of assets in statutorily mandated insurance funds does not automatically determine the tax treatment of such an asset (here the Insurance Act required certain funds to be maintained). Instead, the issue to be determined on a case by case basis is the reason for which the assets are held, according to ordinary principles of revenue law. If the assets are held for the purposes of trade, it is likely that the gains would be considered taxable income; if the assets are held as a capital asset, the assets are likely to be considered capital, the gains of which are not taxable.
In this case, the assets in question were long-held shares of three companies. The Court of Appeal determined these were a capital asset and income tax was therefore not payable upon their disposal.
VIETNAM – AN OVERVIEW OF VIETNAM'S INSURANCE MARKET
Vietnam started liberalising its insurance market by allowing foreign insurers to participate in the domestic market almost 20 years ago. Since then, its insurance market has grown exponentially. Before the 1990s, Vietnam's insurance market was dominated by state-owned insurance enterprises. As of the end of 2013, there were a total of 57 players from the state and the private sector, the latter including both domestic and foreign-invested companies.
According to the figures in Vietnam's Insurance Market report issued by the Ministry of Finance annually, in the period 2005 to 2012, insurance business revenue increased by an average annualised rate of 13 percent to 15 percent a year, totalling approximately US$2 billion by the end of 2012. Growth is likely to continue for the years to come.
An overview of Vietnam's insurance market can be found in Mayer Brown's report "Vietnam's Insurance Market: An Overview – January 2014".
UK – LLOYD'S 2014 GUIDANCE NOTES ON SOLVENCY II
Lloyd's of London published guidance notes on Solvency II and risk assurance on 6 February 2014. The guidance is intended to provide information on the steps and actions Lloyd's, together with its managing agents, intends to take with regards to the implementation of Solvency II.
The guidance contains the following points of specific interest:
- Review of EIOPA guidelines and PRA statement
Lloyd's has carried out a review of the European Insurance and Occupational Pensions Authority ("EIOPA") guidelines together with the Prudential Regulatory Authority ("PRA") supervisory statement on preparing for Solvency II in order to assess the impact of Solvency II for managing agents. Following the review, Lloyd's has confirmed it is comfortable that the guidelines do not impose any requirements on managing agents which were not previously covered by the Lloyd's Solvency II programme.
- Pillar 3 "dry run"
In order to assist managing agents to prepare for the Pillar 3 reporting requirements, which will come into effect in 2015, Lloyd's will be carrying out a Pillar 3 "dry run" exercise during the third quarter of 2014 and the deadline for submission to Lloyd's will be 25 September 2014.
- Mapping exercise of EIOPA interim measures
In order to ensure its ability to demonstrate to the PRA that managing agents are able to meet the requirements of the EIOPA guidelines, Lloyd's proposes to carry out a mapping exercise of the guidelines against its own Solvency II programme. Whilst Lloyd's believes it complies with the guidance on the whole and no additional requirements are imposed, it does consider there to be areas where more explicit evidence would be expected in order to demonstrate how the guidance is being met. The mapping exercise and its impact on managing agents will be discussed by Lloyd's in more detail in early 2014.
- Review of minimum standards
Lloyd's is reviewing its minimum standards to ensure they are up to date and incorporate new Solvency II requirements. Lloyd's will continue to issue re-drafted standards for market consultation and feedback before they are finalised. Agents are expected to be fully compliant with the standards by January 2015. Agents will be expected to carry out self assessments against all the minimum standards over the next two to three years and Lloyd's is developing an internal process aimed to ensure the consistent review of self-assessments.
- PRA review and interaction
Lloyd's expects the level of PRA review and interaction with both Lloyd's and the market on Solvency II to increase in 2014.
A link to the Lloyd's guidance notes can be found here.
GERMANY – PROPOSED AMENDMENTS TO THE REGULATION ON THE INVESTMENT OF RESTRICTED ASSETS OF INSURANCE UNDERTAKINGS
German insurance companies and pensions funds must comply with various legal restrictions when they invest their restricted assets. The cornerstones of the investment policies are laid down in the German Insurance Supervisory Act ("Versicherungsaufsichtsgesetz" – "VAG" in connection with the Regulation on the Investment of Restricted Assets of Insurance Undertakings ("Anlageverordnung" – "AnlV")).
As a general rule, the restricted assets must be invested with the requisite care and expertise. Compliance with the general investment principles set out in the VAG and the specific provisions of the AnlV must be ensured by qualified investment management, appropriate internal capital investment principles and control procedures, a strategic and tactical investment policy and other organizational measures. The AnlV stipulates the forms of eligible investments. Currently discussions are under way to amend and expand the eligible forms of investments, inter alia, to include additional investment opportunities in infrastructure projects.
Under the current regime loans – in a nutshell – are eligible investments if the borrower is domiciled in a member state of the European Economic Area ("EEA") or in a full member state of the OECD excluding credit institutions; if on the basis of the past and expected future development of the net assets and results of operations of the undertaking the contractual interest payment and repayment appear to be guaranteed; and if the loans are adequately secured (i) by first-ranking land charges, (ii) by receivables which are pledged or transferred as collateral or by securities admitted to trading on a stock exchange or admitted to another organized market, (iii) or in a similar manner; provided that a formal commitment issued by the borrower to the insurance undertaking (negative pledge) may serve as collateral instead only if and for as long as the status of the borrower alone is guarantee for interest payment and repayment of the loan.
The proposed amendment to the AnlV will expand the scope of eligible loans to corporate loans, for such borrowers who provide an undertaking and the borrower is rated as "Speculative Grade Ratings" or a comparable own assessment. The implementation of the amended AnlV can not yet be foreseen but it is expected that this will take place in first half of 2014.
Details of the amendments are not yet finalized or published so far. Nevertheless, it is expected that the new eligible asset class will lead to additional investments of German insurance companies and pensions funds in infrastructure projects.
Originally published 29 April 2014
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