Edited by David W. Alberts, Colin Scagell, Lawrence R. Hamilton and Vikram Sidhu
Keywords: corporate insurance, regulation, Insurance, reinsurance,
CHINA – SECOND JUDICIAL INTERPRETATION HELPS CLARIFY PRC INSURANCE LAW
The PRC Supreme Court has recently issued the Interpretations of the Supreme People's Court on Certain Issues Concerning the Application of the Insurance Law of the People's Republic of China (II) (the "Interpretation"), which came into force on 8 June 2013. The Interpretation clarifies a number of issues relating to insurable interest, duty of disclosure and the insurer's obligations to explain insurance clauses. A summary of the key issues is set out below.
Insurable Interests of Different Parties in Property
Previously, the people's court generally did not recognise that leasees or carriers have insurable interests in property being used, leased or transported by them. Article 1 of the Interpretation provides where different parties have taken out insurances for the same property, the people's court will uphold their claim on the insurance claim to the extent of their insurable interest. The Interpretation formally clarifies that different parties, including leasees and carriers, have insurable interests in property even though they are not the legal owner and can purchase insurance for property leased or carried by them.
Contracts Signed or Sealed by Insurer or its Agent
Sometimes, an insurer or agent of the insurer may sign or seal the insurance contract purportedly on behalf of the applicant. Article 3 of the Interpretation provides that if an insurance contract is not signed or sealed by the applicant or its agent, the insurance contract is not valid unless the applicant pays the premiums.
Duty of Disclosure
Pursuant to Article 16 of the Insurance Law of the PRC, when concluding the insurance contract, the insured is required to make true representations in response to the insurer's inquiries relating to the subject matter of insurance. The Interpretation limits the insured's duty as follows:
- The insured only needs to provide information limited to the scope and content of the insurer's queries. In other words, the insured only needs to provide information specifically requested by the insurer. If the insured and the insurer have different understanding about the scope and content of the inquiry, the insurer bears the burden of proving the scope of the inquiry.
- The insured only needs to provide information that it clearly knows.
- The insurer may not terminate the insurance contract if it has received premiums when it knew or ought to have known that the insured failed to provide truthful disclosure.
Obligation of Insurer to Explain Insurance Clauses
Pursuant to the Insurance Law of PRC, the insurer is required to explain any "clauses exempting the liability of the insurer" (for example, exclusion clauses) and draw attention to these clauses in the insurance policy or certificate, otherwise such clauses are ineffective. The Interpretation confirms that "clauses exempting the liability of the insurer" includes any exemption clauses, deductibles, excess, proportion of claims or payment and other clauses exempting or reducing the liability of insurer.
The Interpretation further requires that when the insurer makes any explanation to the insured about the exemption clauses, this must be understandable to a layperson.
Recovery Against Third Parties
The Interpretation clarifies that the insurer can exercise subrogated recovery rights against third parties in his/her own name and that the time limit for taking action (generally 2 years) commences when the insurer acquires such right. In other words, the time limit begins when the insurer has paid or agreed to pay pursuant to the contract of insurance. This clarifies the controversy prior to the Interpretation where some courts took the view that the insurer is not entitled to bring any subrogated recovery against third parties if the insured's claim against the third party was already time barred.
The Interpretation provides welcome and timely clarification of a number of issues surrounding the operation of the Insurance Law of the PRC. In particular, the Interpretation is useful for insurers to ascertain the scope of inquiries when concluding the insurance contract, their obligations to explain various clauses in the policy as well as their rights of recovery against third parties.
CHINA – FOREIGN INSURERS ALLOWED TO CONTRIBUTE REGISTERED CAPITAL IN YUAN
Revisions to the Regulations on Administration of Foreign Invested Insurance Companies has been released. The revisions came into force on the 1 August 2013, and remove the requirement for foreign-owned insurance companies operating in China to contribute their registered capital in freely convertible currency.
As such, an overseas insurer may now contribute registered capital to its Chinese subsidiary in Chinese yuan, in an amount of no less than CNY 200 million or its equivalent in a freely convertible currency (approximately US$ 32.5 million), although it is common for higher requirements to be applied.
CHINA – CONSULTATION ON REINSURANCE AS A CAPITAL OPTIMISATION TOOL
Until now the legal status of reinsurance in China for capital management purposes has been uncertain. After almost a year of reviewing the subject the China Insurance Regulatory Commission ("CIRC") has announced that it is preparing to allow insurers to use reinsurance as a capital optimisation tool.
Reinsurance is able to improve an insurer's capital position by allowing the insurer to increase its assets or reduce its liabilities, and allowing the transfer of risk to a reinsurer to reduce risk exposure.
CIRC circulated its Consultation paper on the regulation of life insurers using reinsurance to improve solvency position on 20 July 2013.
CHINA – ANYTHING CAN BE INSURED: MID-AUTUMN FESTIVAL BAD WEATHER INSURANCE
An Internet-based insurance product was jointly launched this year by Taobao Insurance (part of the Alibaba Group) and Allianz China General Insurance.
People in 41 cities of China (including Beijing, Shanghai, Guangzhou and Shenzhen) were able to insure against bad weather obscuring the view of the moon on the night of the Mid-Autumn Festival, which this year fell on 19 September. The insurance covered the risk of cloudy, foggy or hazy weather.
The premium was CNY 20 yuan (US$ 3) and policyholders received CNY 50 (US$ 8) if there was bad weather, as determined by the China Meteorological Administration. All premium-payers received a box of mooncakes to celebrate the festival.
It is reported that of the 41 relevant cities only 9 cities experienced "bad weather" (accounting for 9% of policyholders), and residents in the other 32 cities received no compensation. Sales are reported to have generated a profit of CNY 320,000 (approximately US$50,000) from the period of 26 August to 5 September (the dates on which the policy was available for purchase).
HONG KONG – IS A COVER NOTE A FORMAL INSURANCE POLICY?
The Court of Appeal in China Ping An Insurance (Hong Kong) Company Limited v. Tsang Fung Yin Josephine and Mohammad Taj (CACV 179/2012) found that the terms and conditions in a third party motor insurance policy had been incorporated into the interim contract of insurance covering the time of accident (the cover note), notwithstanding the formal policy had not been delivered to the insured. In this case, Tsang was held to have breached her contractual duty to notify the insurer of the accident pursuant to the terms of the Policy.
The decision reaffirms the legal position that where the terms and conditions contained in the formal insurance policy are expressly referred to in the cover note and the wording is sufficiently clear, the insured would be bound by the terms and conditions contained in the formal policy even though the formal policy has not yet been delivered.
In this case, Tsang (the first defendant) (the "Insured") was the registered owner of a private car. Mohammad Taj (the second defendant) (the "Insured driver") was the authorised driver of the car. China Ping An Insurance was the motor insurer of the private car (the "Insurer").
On 1 June 2006, the Insured submitted the insurance proposal form to take out third party motor insurance for the car. In the proposal form, the Insured signed on declarations as follows:
"(5) I/We hereby agree that this Proposal and Declaration shall be incorporated in and taken as the basis of the proposed contract between me/us and the Company; and (6) I/We agree to accept a policy in the Company's usual insurance policy form this class of insurance."
On the same day the Insurer issued a Cover Note to the Insured which stated that:
"Tsang Fung Yin Josephine having proposed for insurance in respect of the Motor Vehicle ... and having paid the sum of ... the risk is hereby held covered in terms of the Company's usual form of THIRD PARTY ONLY Policy applicable thereto for a period of 30 days ... ." (the "interim contract of insurance").
The Insurer issued a formal policy on 4 July 2006 and delivered it to the Insured on 22 July 2006. On 12 July 2006 (i.e., before the delivery of the Policy), the Insured driver was involved in a traffic accident. He was prosecuted and convicted of careless driving. The Insurer repudiated policy liability on the ground that the Insured had failed to give notice of the accident pursuant to the terms of the policy. The insurer settled two personal injury claims on a without prejudice basis and sought recovery against the Insured and the Insured driver for the damages and costs paid in respect of those claims.
The Court of Appeal Decision
The Insurer's recovery action was dismissed by a Master of the Court of First Instance upon the Insured's application for an order of dismissal on the basis that the notification requirement under the terms of the Policy formed no part of the interim contract of insurance on the date of the accident. However, this decision was successfully appealed by the Insurer to the Judge in Chambers. The Judge held that on true and proper construction of the cover note, all the terms and conditions in the Insurer's third party motor insurance policy, including the notification requirement were incorporated into this interim insurance contract.
The Insured appealed to the Court of Appeal. The Court of Appeal rejected the Insured's submission that the wording in the cover note merely defined the scope of the risk covered and held that they were sufficient to incorporate the standard policy terms into the interim insurance contract as the Insured had declared in the proposal form that she agreed to accept a policy in the Insurer's usual policy terms for motor insurance. It was contended by the Insured that exclusory condition in the formal policy should not be applicable until the policy was delivered to the Insured for her to acquire knowledge of its contents. However, the Court of Appeal held that the Insured should have had every opportunity to find out about the policy before she submitted the proposal form and accepted the cover note.
- Where the terms and conditions of a motor policy are expressly referred to in the cover note and the wording is sufficiently clear, those terms and conditions would be regarded as being incorporated into the cover note, and the insured would be bound by those terms and conditions, notwithstanding that the formal policy has not been delivered.
- Insurers may need to review the wording of their cover notes and proposal forms to consider whether the wording is sufficiently clear to ensure the proper incorporation of the terms and conditions of the policy.
HONG KONG – INSURERS NOT PRESUMED TO KNOW FACTS MERELY BECAUSE THEY ARE AVAILABLE ON THE INTERNET
Should the insurer be presumed to have knowledge of matters that it could have discovered from public resources? The Court of Appeal in Hua Tyan Development Limited v. Zurich Insurance Company Limited  5 HKC 117 unanimously held not.
Hua Tyan (the "Insured") is a timber trader who ships logs from Southeast Asia to China. It insured its vessel, MV Ho Feng No.7 (the "Vessel"), with Zurich Insurance Company Limited (the "Insurer"). The Vessel sank during a voyage in January 2008 and the Insured claimed under its policy. The Insurer denied liability on the basis that the Insured breached the Dead Weight Tonnage Warranty (the "Warranty") which warranted that the Vessel's Dead Weight Tonnage (DWT) is not less than 10,000 tons. The Vessel's DWT was in fact 8,960 tons and therefore breached the Warranty. The Insurer also argued that the Insured breached its duty of disclosure by failing to disclose the true DWT of the Vessel.
The First Instance Judgment
The First Instance Judgment (Chung J) held that the Warranty did not apply because it was inconsistent with the purpose of the policy, which was to provide coverage for the Vessel. Chung J also found that the Insured did not breach its duty of disclosure because the Insurer could have found out about the tonnage of the Vessel from the internet.
The Court of Appeal
The First Instance Judgment was overturned on appeal. The Court of Appeal found that on the face of the policy, there was no inconsistency between the Warranty and the coverage provided because the Insurer had agreed to cover the Vessel subject to the Warranty.
In order to establish that the Warranty was inconsistent with the policy, the Insured had to show that when the policy was issued, both the Insured and the Insurer knew the Vessel's true DWT, namely that it was less than 10,000 tons. An insurer is presumed to know matters of common notoriety and matters which it ought to know in the ordinary course of its business. The Court of Appeal held that just because the information was available on the internet and the Insurer could have made inquiries, it did not mean the Insurer should have made inquiries. The Insured must show there was some foundation for the Insurer to make such inquiries, for instance, that it was common practice for insurers to make such enquiries in the marine insurance industry.
The Insurer therefore did not have presumed knowledge of the Vessel's true DWT merely because the information was available on the internet. The Warranty was not inconsistent with the policy and the Insurer could rely on the Warranty to avoid liability. Given the Insurer did not "know" the true DWT of the Vessel, the Insured also breached its duty of disclosure by failing to disclose this information.
The Insurer's appeal was allowed. As the Court of First Instance had found against the broker in the alternative, judgment was entered against the broker instead.
Merely because information is available on the internet or from public resources does not impose a duty on the insurer to make enquiries. The insured is still required to disclose such information if material to the risk. There must be some foundation, such as common industry practice, before the insurer is imputed knowledge of facts available on the internet or from public resources. This decision certainly gives insurers comfort that there is no duty to make enquiries merely because the information is available from public resources.
The decision is welcomed as it confirms the insured or its broker bears the responsibility of disclosing material facts, and the insurer cannot be expected to undertake further enquiries of matters that are known by the insured.
MYANMAR – PRIVATE INSURERS COMMENCE OPERATIONS
IKBZ Insurance Public Company (part of the KBZ group) commenced business in Myanmar in June 2013, and became the first private insurer to operate in Myanmar in half a century. IKBZ have indicated an intention to list on Myanmar's yet-to-be-created stock exchange when it opens (scheduled for 2015).
This follows Myanma Insurance, the state-owned insurance company, approving the commencement of business of 12 new private insurers - see our commentary in our April 2013 bulletin ( http://www.mayerbrown.com/Global-Corporate-Insurance--Regulatory-Bulletin-05-09-2013/).
Myanma Insurance has stated that the country is looking to open up the insurance market to foreign insurers by 2015, although this may be deferred to 2020 if domestic insurers are thought unready to complete by then. Several foreign insurers have already opened representative offices in anticipation of entry into the market.
UK – CAPITAL EXTRACTIONS BY GENERAL INSURERS IN RUN-OFF
The Prudential Regulation Authority (PRA) has recently issued a consultation on its draft supervisory statement on capital extractions, which seeks to clarify the PRA's expectation of compliance with existing provisions within the PRA Handbook.
The draft supervisory statement is directed at general insurance firms in run-off and highlights key factors which should be considered by management in those firms considering a request for capital extraction. The statement also contains provisions on the likely approach the PRA will take to such requests.
The purpose of the statement is to ensure run-off firms have sufficient capital to meet their obligations to policyholders as they fall due and that this remains the case following a proposed extraction.
The PRA holds senior management and a firm's Board responsible for maintaining adequate capital at all times. As such, when considering a proposal for capital extraction, they must assess the level of capital needed both immediately and in the future before submission of the proposal to the PRA. The firm should undertake a thorough review of its capital position in order to assess the adequacy of its solvency position after the proposed extraction. As well as considering its current Individual Capital Assessment (ICA), the firm should consider the expected future progress of the run-off of the business. The firm should then seek Board approval for the capital extraction proposal.
The Board should only give approval if it is satisfied that the proposed extraction will not affect the company's ability to maintain sufficient levels of capital.
Following submission of the proposal, the PRA will consider the request and if it deems necessary will ask the firm to commission an independent review to further satisfy the PRA of the accuracy of the review undertaken by the firm.
The PRA may then issue the firm with an Individual Capital Guidance (ICG) detailing the level of capital the firm should hold in order for adequate financial resources to be maintained. The ICG will normally be expressed as a fixed amount and the firm must ensure its capital does not fall below this. The PRA expects firms to hold capital above the level of the ICA/ICG at all times or above the firm's Solvency I Minimum Captial Requirement (MCR) if this is higher.
The PRA's statement can be found at:
EUROPE – EIOPA CONFERENCE ON GLOBAL INSURANCE SUPERVISION
The European Insurance and Occupation Pensions Authority recently held a conference aimed at considering strategic regulatory issues.
The conference consisted of three sessions:
- Self assessment of risks in insurance companies
It was agreed amongst participants that companies should consider their Own Risk and Solvency Assessment (ORSA) to be a management tool, allowing appropriate reflection of the nature, scope and complexity of insurers. It was considered that ORSA would limit the amount of time regulators spent reviewing historical financials and permit a risk based approach to supervision. It was also stressed that prior to implementation of Solvency II, any ORSA carried out based on 'best estimates' of solvency and capital requirements should not lead to supervisory action.
- Supervisory convergence
It was suggested that the financial crisis had resulted in a strong case for convergence of supervision and regulation. It is hoped that such convergence would lead to efficiency gains for policyholders, supervisors and companies alike. The need for global standards to be unambiguous and enforceable was also discussed. There was some debate here with various participants considering the need for flexibility when implementing the standards.
- The search for global standards
It was concluded that, in order for a truly level playing field to be established, the focus should be on developing global standards rather than national mandates. The key role in this challenging work should be given to the International Association of Insurance Supervisors (IAIS).
The programme for the EIOPA conference can be found at:
US – INITIAL RECTOR REPORT ON RESERVE FINANCING TRANSACTIONS SUBMITTED TO THE NAIC'S PRINCIPLE-BASED RESERVING IMPLEMENTATION (EX) TASK FORCE
On September 13, 2013, Rector & Associates, Inc. ("Rector") submitted its initial report (the "Initial Rector Report") to the Principle-Based Reserving Implementation (EX) Task Force (the "PBR Task Force") of the National Association of Insurance Commissioners ("NAIC"). The PBR Task Force is coordinating all of the NAIC's technical groups involved with projects related to the NAIC's PBR initiative for life and health insurance and is also charged with assessing the solvency implications of life insurer-owned captive insurers and alternative mechanisms. Following up on the completion of the Captive and Special Purpose Vehicle White Paper by the NAIC's Captives and Special Purpose Vehicle Use (E) Subgroup (the "Captives Subgroup") earlier this year, the PBR Task Force is tasked with considering the white paper's recommendations in the context of the proposed PBR system and with making further recommendations, if any, to the NAIC's Executive (EX) Committee. The Initial Rector Report is intended to help the PBR Task Force with this task.
The Initial Rector Report sets forth the issues that the PBR Task Force, and more broadly the NAIC, is facing regarding whether insurers should be allowed to use captive reinsurance transactions for financing XXX and AXXX reserves. As noted in our prior bulletins, the NY DFS and various other states' insurance regulators have expressed concerns about such transactions, and those concerns were embodied in the Captives Subgroup's White Paper. The Initial Rector Report states that Rector interviewed regulators representing approximately 15 states and that most of the regulators interviewed have approved the use of captive reinsurance for reserve financing in some form or another -- although they also expressed unease about how the transactions are currently being implemented. The Initial Rector Report starts from the premise that the PBR Task Force does indeed want to continue exploring the use of captive reinsurance for reserve financing, with appropriate changes to promote consistency and ensure that approved transactions are sufficiently conservative. The report sets forth a framework for the regulatory debate, and for that purpose the report lays out specific issues for discussion under two potential alternative frameworks.
The "conceptual underpinnings" of the framework set forth in the Initial Rector Report are:
- XXX and AXXX reserves to pay policyholder claims should be established in full, using applicable reserving guidance (currently, the "formulaic" approach).
- The formulaic reserves may then be conceptually separated into
two portions, based on an assessment of the probability that they
will be needed to pay policyholder claims:
- To the extent there is a reasonable probability that the reserves may be needed to pay policyholder claims, the reserves should be conservatively backed by high quality assets.
- Lower quality assets (including those not normally allowed as admitted assets under statutory accounting) should be allowed to support the reserves, to a limited extent, if an insurer receives regulatory approval to use them, if the assets meet certain criteria, and if the probability that they will be needed to pay policyholder claims is low.
- To provide consistency and a level playing field, all insurers and regulators should use the same actuarial standard to determine what portion of the reserves must be backed by high quality assets and what portion may be backed by lower quality assets.
- There should be appropriate disclosure so that regulators and others (such as rating agencies) can verify that insurers are following the rules and can more effectively measure the levels of risk presented by approved transactions.
The Initial Rector Report then sets forth two alternatives for applying the concepts above in practice – one alternative involving the use of reinsurance (in line with the current use of captives for reserve financing) and the other alternative involving keeping the assets and liabilities on the insurer's balance sheet. The Initial Rector Report notes that the latter approach would require regulatory and statutory accounting changes. The Initial Rector Report is being reviewed by the PBR Task Force at this time.
US – NEW YORK DEPARTMENT OF FINANCIAL SERVICES WILL NO LONGER IMPLEMENT AG38 PRINCIPLES-BASED RESERVING APPROACH
On September 11, 2013, the New York Department of Financial Services (the "NY DFS") sent a letter to all the commissioners of the NAIC notifying the NAIC that effective September 13, 2013 New York will no longer implement the retroactive test for Actuarial Guideline XXXVIII ("AG38"). AG38 establishes reserve requirements for universal life insurance policies with secondary guarantees ("ULSG").
In the letter, the NY DFS argues that it had brought to the attention of the NAIC in 2011 that many life insurance companies operating nationally had not maintained sufficient reserves for ULSG and that the modified principles-based reserving ("PBR") approach under AG38 was intended to lead companies to increase reserves. The NY DFS's letter states that, instead of increasing reserves based on AG38's modified PBR approach, companies have kept reserves at the same level as previously or have actually reduced reserves in many cases.
In addition, the letter argues against the adoption of PBR more generally. The NY DFS asserts that, "[i]n its current form, PBR represents an unwise move away from reserve requirements that are established by formulas and diligently policed by insurance regulators in favor of internal models developed by insurance companies themselves." From that perspective, the NY DFS urges against adoption of PBR. As a result, the NY DFS is now on record as opposing both the adoption of PBR and the use of captive reinsurance for reserve financing (which the NAIC's Captives Subgroup has suggested would no longer be needed if PBR is adopted).
Insurance companies, industry representatives and other state regulators have challenged the arguments made by the NY DFS in its letter and have raised concerns about the unilateral approach taken by NY DFS in abandoning the AG38 PBR approach that was adopted by the NAIC.
US - BERMUDA MONETARY AUTHORITY PARTICIPATING IN THE NAIC'S PROCESS FOR DEVELOPING AND MAINTAINING THE NAIC LIST OF QUALIFIED JURISDICTIONS
On September 16, 2013, the NAIC announced that the Bermuda Monetary Authority ("BMA") has accepted the NAIC's invitation to participation in the "Process for Developing and Maintaining the NAIC List of Qualified Jurisdictions". The BMA is the first foreign insurance regulatory authority to participate in the Process. As discussed in our prior bulletins, the Process will be used by the NAIC to identify qualified jurisdictions. Reinsurers domiciled in such qualified jurisdictions will be eligible to apply to become "certified reinsurers", which status will allow the reinsurers to post reduced levels of collateral for credit for reinsurance as permitted under the revised Credit for Reinsurance Model Law (#785) and Credit for Reinsurance Model Regulation (#786).
The NAIC has invited interested parties to submit comments regarding the NAIC's consideration of the BMA by October 18, 2013. The NAIC seeks to complete the expedited review process with respect to the BMA prior to the end of the year in order to have the BMA included on the NAIC List of Qualified Jurisdictions effective for January 1, 2014.
US – FSOC'S FINAL DETERMINATION REGARDING DESIGNATION OF PRUDENTIAL FINANCIAL INC. AS SYSTEMICALLY IMPORTANT INSURER
On September 19, 2013, the US Financial Stability Oversight Council ("FSOC") made a final determination to designate Prudential Financial Inc. as a non-bank systematically important financial institution ("non-bank SIFI"). As reported in our July bulletin, FSOC voted earlier this year to designate American International Group Inc., GE Capital, and Prudential Financial as non-bank SIFIs. As discussed further in that bulletin, Section 113 of the Dodd-Frank Wall Street Protection and Consumer Protection Act grants FSOC the power to designate non-bank financial entities as non-bank SIFIs. Prudential Financial appealed the non-bank SIFI designation by FSOC. As part of the appeal process, Prudential Financial submitted written hearing materials to FSOC, and FSOC held an oral hearing on July 23, 2013. The final determination means that FSOC has concluded that material financial distress at Prudential Financial could pose a threat to the financial stability of the United States and that the company should be subject to supervision by the Board of Governors of the Federal Reserve System and enhanced prudential standards. FSOC's resolutions regarding the final determination including dissenting opinions as well as FSOC's basis for the final determination can be found here and here, respectively.
US - NY DFS LETTER REGARDING TERRORISM RISK INSURANCE PROGRAM RENEWAL
On September 16, 2013, the NY DFS sent a letter to the Federal Insurance Office urging reauthorization of the US federal terrorism risk insurance program that was established under the Terrorism Risk Insurance Act of 2002 ("TRIA"). Enacted in 2002 after the September 11, 2001 terrorist attacks, TRIA created a US government facility to provide coverage to insurance companies following an act of terrorism. The Terrorism Risk Insurance Extension Act of 2005 extended the program until the end of 2007, and the Terrorism Risk Insurance Program Reauthorization Act of 2007 extended the program until December 31, 2014. Congress is expected to consider renewal of the program in the coming months.
In its letter, NY DFS sets forth its reasons for advocating renewal of the program: (1) it increases the availability of commercial property and casualty insurance, and (2) it increases the affordability of terrorism coverage. The NY DFS argues for making the program permanent. New York is one of two states that bar terrorism exclusions in policies that include standard fire coverage.
Originally published 9 October 2013
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