Global Corporate Insurance and Regulatory Bulletin · insurer licensing and the telesale of life insurance products as follows: LICENSING OF INSURANCE COMPANIES Under the new regulations,

Global CorporateInsurance and RegulatoryBulletin

INSURANCE & REINSURANCE INDUSTRY GROUPMay 2013

May 2013

Contents Page

ASIA

China: Tighter rules on insurance licensing and life insurance telesales 1

Hong Kong: Contracts (Rights of Third Parties) Bill 2

UK/EUROPE

UK: Government Announces Strategy to Promote the UK Insurance Industry 3

UK: Solvency II Update 4

UK: Insurance ‘Add-ons’ Come Into the Line of Fire 5

US/AMERICAS

US: 2013 NAIC International Insurance Forum 6

US: New York Amends Insurance Holding Company Regulation 6

US: New York Inquires into Cyber Threats at Insurance Companies 7

US: Congress Introduces Two Bills to Increase Taxation of Foreign Insurers 7

Brazil: Establishment of the Brazilian Fund and

Guarantee Management Agency 8

Brazil: SUSEP Streamlines Procedures for the

Incorporation of Local Insurance and Reinsurance Companies. 9

1 Global Corporate Insurance & Regulator y Bulletin

ASIA

China: Tighter rules on insurance licensing and life insurance telesales

The China Insurance Regulatory Commission (“CIRC”) has tightened rules on

insurer licensing and the telesale of life insurance products as follows:

LICENSING OF INSURANCE COMPANIES

Under the new regulations, licences will be issued depending on the insurer’s scope of

business and ability to bear risk. The rules classify insurance businesses into ‘basic’

or ‘extended’ categories. New insurers can only apply to carry out ‘basic business’ and

will be barred from ‘extended business’ until they qualify for all basic businesses.

Additionally, insurers who wish to conduct basic business are required to meet

certain registered capital requirements, and insurers applying to handle extended

business need to have strong financials and sound risk control and compliance

management.

The products covered by the above categories include the following:

Basic (non-life insurance): motor insurance, commercial or household property

insurance, engineering insurance, liability insurance, ship and cargo insurance,

health and accident insurance.

Basic (life insurance): ordinary life insurance such as term, endowment and

whole life; health insurance; accident insurance; participating life insurance and

universal life insurance.

Extended (non-life insurance): agriculture insurance, credit guarantee

insurance, special risk insurance and investment risk insurance.

Extended (life insurance): includes unit-linked insurance and variable annuity

insurance.

LIFE INSURANCE TELESALES

More than two-thirds of life insurance in China is sold over the phone. This process

has created problems for consumers. CIRC received 617 consumer complaints about

insurance telesales in 2012, up from only 16 in 2011, with more than half of the

complaints relating to life insurance. Complaints include repeated calls, fraudulent

information provided by salespeople and the disclosure of personal information.

Under the new regulations, insurance salespeople are prohibited from making cold

calls between 9:00p.m. and 9:00a.m. Life insurance companies will be required to

maintain a list of people who do not wish to be called, and any client who requests

not to be called again should be added to the list for at least six months.

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Hong Kong: Contracts (Rights of Third Parties) Bill

The Hong Kong government commenced a public consultation on a Contracts (Rights

of Third Parties) Bill (“Bill”). The Bill seeks to reform the common law doctrine

regarding privacy of contracts, which applies in Hong Kong. Currently, Hong Kong

has no equivalent of the English Contract (Rights of Third Parties) Act 1999. Other

common law jurisdictions, including England and Wales, Ireland, Singapore, New

Zealand and certain states of Australia, have adopted similar reforms. The proposal

is closely modelled on the English legislation.

The Bill allows third parties to enforce rights under a contract if the contract

expressly allows for this, or if the third party can demonstrate that it was the

intention of the contracting parties that the third party should have the right to do so.

Where a life insurance policy allows the insured party to direct payments to a

nominated third party, such interests are currently unenforceable by the third party

beneficiary (subject to certain statutory and common law exceptions, developed to

redress potential unfairness). If the Bill passes, third party rights in insurance

policies governed by Hong Kong law could be enforced directly without resorting to

such exceptions.

Insurance policies are unique in that they impose a duty of utmost good faith on the

insured party (and a consequential duty of material disclosure). The Bill, however,

allows a third party to enforce its benefit under the policy even though it is not held to

the same standard of disclosure. As a result, the insurer may be unjustly expected to

confer benefits upon a third party who has not yet satisfied the standards required

under insurance contracts for duty of disclosure.

The Bill seeks to address such concerns by allowing an insurer, in response to a third

party action, to rely on any defences which would have been available to it if the

insured had brought the action, such as proving that the insured party had breached

its duty of disclosure or, indeed, any other contractual term under the policy.

Moreover, the Bill permits the inclusion of a term to exclude its effect. It is likely that,

as in other jurisdictions, commercial contracts including insurance contracts, will

start to exclude this legislation.

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UK/EUROPE

UK: Government Announces Strategy to Promote the UK Insurance Industry

Greg Clark, financial secretary to the Treasury, recently spoke at an insurance

conference where he expressed his respect for the UK insurance industry and

announced the government’s plan to put the industry at the heart of its focus in

driving UK economic growth. The Association of British Insurers (“ABI”) has

welcomed the government’s announcement as insurers are amongst the country’s top

exporters. The ABI highlighted the potential for the government’s drive to enhance

the industry’s position as a leader in global business and strengthen its global

competitiveness. A spokesperson on behalf of ABI remarked that the government is

right to shine the spotlight on the insurance industry as the industry is uniquely

positioned to tackle the UK’s major challenges through its long-term investments.

In this surprise move to launch public policy in support of the insurance industry,

Clark called for an open dialogue with the insurance sector in order to better

understand the industry needs. Over the past few months, the government has been

speaking to firms across the insurance sector to build a picture of the common views

and ideas shared in the industry. Clark stated that the government will continue to

invite comments on what the government can do to support the industry going

forward.

Possible industry suggestions may include:

(1) Greater clarity over the UK’s position within the EU and the kind of role the UK

intends to play;

(2) Assuming the UK’s future is within the EU, a more streamlined law-making

process at the EU level (particularly in light of the delay, uncertainty and cost

concerning the implementation of the Solvency II regime); and

(3) A more straight forward tax regime. In particular, in light of the recent changes

to the anti-avoidance tax rules, it would be useful for the government to provide

greater clarity on the scope of these rules in order to aid insurance firms with their

forward tax planning. Additionally, it would be desirable for the government to

prioritise its ongoing project aligning UK tax laws to work alongside the Solvency

II directive.

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UK: Solvency II Update

As reported in last month’s insurance bulletin, the chief executive of the Prudential

Regulation Authority (PRA), Andrew Bailey voiced his concerns over the

implementation of the Solvency II directive. Bailey warned the House of Commons

Treasury Committee that the Solvency II directive had become overly detailed and

extremely expensive.

In the letters addressed to the committee, Bailey stated that the costs of

implementation would be “staggering” and that the EU had simply assumed that

firms and regulators would spend large amounts of money preparing for the

implementation of something that carried “no promise in terms of when or in what

form it will be implemented”. Bailey cast light on Germany in particular, which

although supportive of the agreement, was requesting a lengthy transitional period to

allow for its insurance firms to adjust. Despite the criticisms levelled by Bailey in his

letters, he did break the good news that the total regulatory expense of implementing

Solvency II is considered to be almost half of what the FSA initially predicted,

currently estimated to be £88m compared with the £150m initial prediction. This

news has been warmly welcomed by the Chairmen and CEOs of the major insurance

firms. Bailey commented that the PRA had taken steps to mitigate the risk of such a

high expense but he did highlight the ‘root of the cause’ being the convoluted EU

process.

However, despite the concerns voiced in Bailey’s letter about the implementation of

Solvency II, recent reports suggest that the EU may, in fact, be nearing a deal on the

long-delayed directive. A British member of the European Parliament, Peter Skinner,

commented that the EU is close to finalisation with the suggestion that ‘transition’

periods will be the likely way forward for the regulator to roll out Solvency II. EIOPA’s

head of policy, Justin Wray, has also commented that the signs indicate that “we are

much closer to reaching an agreement on Solvency II”. The chief executive of the PRA

himself still remains hopeful that the directive will be implemented in some form.

Bailey stated that the EU could not operate long term without harmonised standards

in the insurance sector and, therefore, it was more a question of what form the

directive will take rather than a question of whether it will be implemented at all.

5 Global Corporate Insurance & Regulator y Bulletin

UK: Insurance ‘Add-ons’ Come Into the Line of Fire

The Financial Conduct Authority (“FCA”) has recently upped its scrutiny of insurance

add-ons. There has been heightened speculation in the market that regulators are

starting to contact brokers in relation to this. The chief executive of the FCA, Martin

Wheatley, has commented that firms must be seen to get their houses in order to

avoid any regulatory action. The regulator became aware of the mis-selling of

add-ons following the investigation into motorists’ legal protection insurance. This

probe has since taken off as its own separate study. A spokesperson for the FCA

commented that the regulator does not support when customers are forced to opt-out

of buying a product and is thus encouraging firms to switch to an ‘opt-in’ policy. The

FCA has stated that brokers need to provide clear information and ensure that all

customers are aware, at the point of sale, that the add-ons are optional and also

available elsewhere. This level of scrutiny into the sale of add-ons reflects the

‘consumer-interest’ approach that the FCA has adopted.

The study into the market of general insurance products was initially launched by the

FSA at the beginning of 2013. The scope of the review was wide, looking at products

sold as add-ons to either an insurance policy or another financial services product or

purchase, such as a car. The idea behind the review was to see whether there were

common features of the add-on markets, which could weaken competition and lead

to poor consumer outcomes.

Two months into the investigation, after the transition from the FSA to the PRA and

FCA, the FCA stance on insurance add-ons casts light on the difference between the

old and new regulators. Commentators believe that the FSA was often backward-

looking in its approach to supervision, whereas the FCA, as more forward-looking,

tries to think ahead to prevent problems which may occur down the road. The study

into add-ons has certainly picked up speed since the FCA took over this line of the

investigation. The regulator aims to complete the assessment by the third quarter of

2013 and publish the results shortly thereafter.

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US/AMERICAS

US: 2013 NAIC International Insurance Forum

The National Association of Insurance Commissioners (“NAIC”) held its 2013

International Insurance Forum on May 9-10, 2013 in Washington, DC. The

attendees at the two-day forum included US state insurance regulators, other US and

non-US regulators, trade group representatives and industry participants. The forum

covered a broad range of topics regarding international regulatory developments for

the insurance industry and included sessions on the impact of international

supervisory developments for the US regulatory framework, effective group

supervision, longevity risk solutions used in different jurisdictions, addressing

financial stability in the insurance sector, and resolution regimes for insolvent

insurance companies and the role of policy holder protection structures.

US: New York Amends Insurance Holding Company Regulation

On June 23, 2013, the Third Amendment to New York Insurance Regulation 52

(11 NYCRR 80-1), the New York regulation on insurance holding companies, will go

into effect. The amended regulation requires electronic filing of the Form HC 1

registration statement and amendments thereto, with an opportunity to seek an

exemption from the electronic filing requirement based upon undue hardship,

impracticability or good cause. The Form HC 1 registration statement will also need

to include a statement that the insurer’s board of directors, or a committee thereof,

oversees corporate governance and internal controls and that the registrant’s officers

or senior management have approved or devised, implemented, and continue to

maintain and monitor corporate governance and internal control procedures.

The amended regulation will modify the advance filing requirements for certain

affiliate reinsurance agreements entered into by New York-domiciled property/

casualty insurers. Under the amended regulation, a domestic property/casualty

insurer will only need to make an advance filing with the New York Department of

Financial Services (“NYDFS”) for reinsurance treaties or agreements that meet a

certain threshold, unless otherwise requested by the NYDFS. Filing will be required

if the reinsurance premium or a change in the New York-domiciled insurer’s

liabilities, or the projected reinsurance premium or a change in the New York-

domiciled insurer’s liabilities in any of the next three years, is less than 5% of

policyholder surplus as of the prior year-end. This filing exemption will not be

available to life insurers or accident and health insurers. The amended regulation

will add the following types of agreements to the list of inter-affiliate agreements

requiring an advance filing with the NYDFS: management agreements, service

contracts, tax allocation agreements, guarantees and cost-sharing arrangements.

The amended regulation will add a new provision requiring that where a holding

company seeks to divest its controlling interest in a New York-domiciled insurer in

any manner, and the New York-domiciled insurer is aware of the proposed divestiture

and anticipates that no person will have a controlling interest in it after the proposed

divestiture, then the New York-domiciled insurer will be required to file with the

NYDFS notice of the proposed divestiture upon the earlier of 30 days prior to the

7 Global Corporate Insurance & Regulator y Bulletin

proposed cessation of control or within 10 days of becoming aware of the proposed

divestiture. This new requirement is adapted from the 2010 amendments to the

National Association of Commissioners Model Holding Company System Regulatory

Act (the “NAIC Model Act”); but it imposes the filing obligation on the New York-

domiciled insurer rather than on the controlling person seeking to divest control.

Furthermore, the NYDFS stated in response to industry comments that other

provisions of the NAIC Model Act, such as the requirement of an annual enterprise

risk report and the establishment of supervisory colleges, will be the subject of future

regulatory or legislative activity. The NYDFS addressed concerns about the

confidentiality of submitted documents by reviewing the existing policies of New

York law that provide for the confidentiality of such documents. NYDFS officials

agree that any other confidentiality provisions would need to be added to the

Insurance Law by legislation.

The full text of the regulatory amendments is available here.

US: New York Inquires into Cyber Threats at Insurance Companies

At the direction of New York Governor Andrew Cuomo, the New York Department of

Financial Services (“NYDFS”) is conducting an investigation on how insurers are

protecting customers and companies from cyber threats. On May 28, 2013, the

NYDFS exercised its authority under Section 308 of the New York Insurance Law to

request special reports from the largest insurance companies that the NYDFS

regulates, including Aetna, AIG, MetLife and Progressive. Recipients of the Section

308 letters are required to respond to the NYDFS with information on the policies

and procedures they have implemented to protect against cyber attacks.

In response to the inquiry, Insurers must disclose any information on cyber attacks

that the company has been subject to in the past three years and the amount of funds

and other resources that the company dedicates to cyber security. The NYDFS and

the Cyber Security Advisory Board, established by Governor Cuomo in January 2013

will use the information received to ensure that documents submitted to insurers

such as health, personal and financial records will be safeguarded from cyber attacks.

Governor Cuomo has already taken measures to prevent cyber attacks in banks, but

has now turned his attention to insurance companies in order to keep “one eye on the

lookout for the next big threat.”

US: Congress Introduces Two Bills to Increase Taxation of Foreign Insurers

Two members of Congress have introduced bills aimed at closing alleged loopholes in

the U.S. tax structure that they say favor foreign reinsurers. Representative Richard

Neal (D-MA) and Senator Robert Menendez (D-NJ) filed legislation in both the

House (H.R. 2054) and the Senate (S. 991) aimed at preventing non-U.S.-based

insurers, operating primarily in the U.S., from reducing their U.S. tax bill by using

affiliates as reinsurers. As it stands, foreign property and casualty insurers are

allowed a deduction for premiums paid for reinsurance if the reinsurer is an affiliate

not based in the United States. Said Congressman Neal of the current law, “ending

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this unintended tax subsidy for foreign insurance companies will stop the capital

flight at the expense of American taxpayers and restore competitive balance for

domestic companies.”

Some opponents of the proposed bills argue that passage of such legislation will do

damage to the U.S. property and casualty insurance markets by increasing costs and

limiting the ability of reinsurers to diversify and spread risks. “It would tend to

concentrate US risks within the United States, rather than allowing the global

reinsurance system to spread them throughout the globe,” noted RJ Lehmann, a

fellow at the R Street Institute, a non-profit policy research organization. Lehmann

added that such legislation may be in violation of the General Agreement on Trade in

Services, of which the U.S. is a signatory, under which countries agreed not to subject

companies to more punitive or burdensome taxation based solely on where the

company is based.

Brazil: Establishment of the Brazilian Fund and Guarantee Management Agency

On April 29, 2013, Brazil’s National Council for Private Insurance (“CNSP”) issued

Resolution No. 286, which sets forth complementary rules for the establishment of

the Brazilian Fund and Guarantee Management Agency (“ABGF”), recently created

by article 37 of Law No. 12.712/2012.

Law No. 12.712 was passed by the Brazilian National Congress on August 30, 2012.

Among other provisions, the law allows the Federal Government to establish a new

state-owned company with the purpose of operating in the insurance and

reinsurance sectors, buying out other market participants and providing coverage for

risks related to the implementation of large infrastructure projects, especially those

related to the Growth Acceleration Program – PAC, the FIFA World Cup in 2014 and

the 2016 Olympic Games.

The establishment of a new state-owned company is being criticized by the local

market as reflecting a protectionist and statist policy that is likely to interfere with

the operation of the private insurance and reinsurance market. The new Resolution

is also thought to undermine the positive effects expected from the privatization of

the state-owned reinsurer, IRB-Brasil Re, which is likely to take place some time at

the start of the second half of 2013.

Brazilian insurance and reinsurance market stakeholders are also concerned with the

provisions of Articles 55 and 56 of Law no. 12.712/2012, which permits the regulatory

agency (“SUSEP”) to allow for greater flexibility in the requirements to be met by

ABGF with regards to incorporation and functioning. This provision could authorize

public entities to dispense with public bidding procedures when purchasing

insurance cover from ABGF, thus creating an undue competitive advantage for the

state-owned company over other players in the private market.

However, it should be noted that the issuance of the new Resolution does not

necessarily mean that the ABGF will be created or will function in the way

announced by the Federal Government, since a strong opposition thereto from the

internal market is still expected.

9 Global Corporate Insurance & Regulator y Bulletin

Brazil: SUSEP Streamlines Procedures for the Incorporation of Local Insurance and Reinsurance Companies.

The National Superintendence of Private Insurance (“SUSEP”) intends to make the

procedures for the incorporation of insurance companies, local reinsurers,

capitalization and pension funds entities faster. The local regulatory authority

approved, ad referendum of the CNSP - National Council of Private Insurance, a

change in item II of Article 5 of the Annex to Resolution 166 of 2007, which deals

with the minimum capital required for companies to work in these sectors. This

measure is yet to be examined by the CNSP’s board members.

The intention of the regulatory authority is to make these procedures less

bureaucratic, reducing the number of required documents and rendering technical

analysis thereof more precise and objective.

The rule still in force provides that the actuarial technical note is a mandatory

document for applications for the incorporation of companies. This note contains the

financial estimates applicable to the portfolios that the company intends to operate,

these data being used to calculate the minimum capital required for a company to be

incorporated and to operate.

In the amended version of the Regulation, which has not been approved yet, this note

will not be necessary for attaining SUSEP’s prior approval, given that Resolution

CNSP 282, which was published in the beginning of this year, establishes that the

minimum capital required must be the greatest among the capital base, the risk

capital and the solvency margin, and, since for a company to be incorporated the

capital base will always overcome the others, SUSEP has come to the conclusion that

it would be unnecessary to calculate the risk capital.

Therefore, the actuarial technical note will only be required after the prior approval

has been given to operate by SUSEP and prior to the beginning of activities.

Have you seen our Year in Review?

Earlier this year, we published our Global Insurance Industry 2012 Year in Review,

which discusses some of the more noteworthy developments and trends in insurance

industry transactions in 2012 in the US, Europe, Asia and Latin America, with

particular focus on mergers and acquisitions, corporate finance, and the insurance-

linked securities and convergence markets. A request for the 2012 Year in Review

can be made here.

If you have any query in connection with anything in this Bulletin, please do not

hesitate to get in touch with your usual Mayer Brown contact or one of the contacts

referred to below.

CO-EDITORMartin Mankabady

Partner

+44 20 3130 3830

[email protected]

CO-EDITORDavid Alberts

Partner

+1 212 506 2611

[email protected]

CO-EDITORLawrence Hamilton

Partner

+1 312 701 7055

[email protected]

CO-EDITORVikram Sidhu

Counsel

+1 212 506 2105

[email protected]

Learn more about our Insurance Industry Group.

May 2013 XXXX

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