Contents · CFCs based in certain countries (typically those that are not considered tax havens)...
Transcript of Contents · CFCs based in certain countries (typically those that are not considered tax havens)...
February 2012
Contents Page
UK – proposed changes to the taxation of insurance groups 1
Europe – Solvency II timing update 2
Europe – European Commission letter to EIOPA regarding third
country equivalence 2
Europe – EIOPA publishes action plan for colleges of supervisors 3
Europe – European Commission White paper on pensions 4
UK – FSA publishes insurance newsletters 4
China – New draft rules on the administration of representative
offices of foreign insurance related institutions 5
China – Renaissance of Insurance Asset Management Companies 5
US – Update – States Continue to Consider Enacting the
Amendments to the NAIC Insurance Holding Company System
Model Act and Regulation 6
US – Update – NAIC Continues Consideration of AG 38 9
US – Update – Additional states introduce credit for
reinsurance reform legislation; New Jersey proposes new credit
for reinsurance regulations 10
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UK – proposed changes to the taxation of insurance groups
TAXATION OF CONTROLLED FOREIGN COMPANIES
HM Treasury has recently closed a consultation on the tax regime for controlled
foreign companies (“CFCs”). CFSs are non-UK tax resident companies controlled by
UK companies. Under the existing rules, a UK company can be assessed to UK tax
on profits realised by the CFCs in its group where those CFCs pay less than 75% of the
tax on their income that they would have paid had they been resident in the UK, and
the departure of several UK-headquartered insurance groups has been attributed to
this rule. HM Treasury is believed to be aiming to reverse this trend with its changes
to the CFC tax regime.
HM Treasury is yet to digest all the comments received on the consultation paper, so the
final form of the new rules to be introduced to Parliament as part of the Finance Bill 2012
is yet to be established. Probable features of the new rules can, however, be discerned
from the draft rules published on 31 January 2012, including the following provisions:
• Under the new regime, it is anticipated that an exemption from the regime for
CFCs based in certain countries (typically those that are not considered tax
havens) will continue to apply, although it is worth noting that the exemption for
CFCs based in Luxembourg will not apply to insurers.
• There may be an exemption when only a small proportion of the relevant CFC’s
trading income is derived from the UK.
• It is expected that the determination of whether a country is a CFC will include
consideration of where the significant people functions relevant to asset
ownership and risk management are located – if these are in the UK, the CFC
rules will apply. This definition will catch overseas insurers using UK persons to
insure non-UK risk.
• There are also expected to be changes to the types of income which fall to be
assessed to UK tax under the CFC regime; for example, it is anticipated that
property income will be excluded, as will reinsurance income unless there are
no commercial reasons for the reinsurance or the CFC is outside the European
Economic Area.
TAXATION OF LIFE ASSURANCE BUSINESS
Changes to taxation of life assurance business are required in order to address issues
arising from the advent of Solvency II, as the current tax system for life assurance
businesses relies on regulatory returns which will not provide the necessary
information once Solvency II comes into force.
The proposed changes in this area include the following:
• All life assurance business will be taxed on the basis of accounts, rather than
regulatory returns. (Currently, only permanent health insurance is taxed on an
accounts basis.)
• The allocation of profits between businesses will no longer be prescribed by
statue, instead it will become a commercial allocation.
• The tax regime for life assurance companies will be more aligned to the regime
for other companies, for example with regard to the taxation of debt.
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Europe – Solvency II timing update
February has seen continued speculation about when (and even whether!) Solvency II
will be implemented. Although there is nothing concrete to report, market opinion
certainly seems to be that the previously anticipated implementation date for
Solvency II will be pushed back.
In particular, EIOPA has written a letter to the European Commission emphasising
the challenges it faces with regard to consulting on Solvency II while there are still so
many uncertainties, and stressing the importance of the next legislative steps
occurring in a timely manner. The letter also stated that “it is difficult in light of the
global crisis to defend any further delay in its implementation” and that further
delays might encourage individual countries to pursue their own solutions.
Concern has also been expressed by the new head of the German supervisory
authority that the anticipated timetable cannot now be met in light of the delay to the
vote in the Economic and Monetary Affairs Committee which was announced in
January.
In addition, the European Actuarial Consultative Group said in its February report
that the rumours of delay were consistent with reports of continuing controversy in
the European Parliament on topics including “discount rates and the reflection of
asset illiquidity”.
We will be monitoring this area closely.
Europe – European Commission letter to EIOPA regarding third country equivalence
On 2 February 2012, the European Commission (the “Commission”) wrote a letter
to the European Insurance and Occupational Pensions Authority (“EIOPA”)
regarding third country equivalence assessments under Solvency II.
Whilst not prejudging the outcome of the ongoing negotiations in the Council of
Ministers and the European Parliament in relation to Omnibus II, the Commission
understands that these bodies are supportive of a transitional regime for third
country equivalence, and are, therefore, moving forward in this regard.
The Commission has been engaging in dialogue about a potential transitional regime
for third country equivalence under Solvency II with the supervisory authorities of a
number of third countries. As a result of this, the Commission has asked EIOPA to
carry out a technical analysis (as opposed to a full equivalence assessment) of the
following in relation to a number of countries:
1. whether persons working for, or on behalf of, the supervisory authorities are
bound by obligations of professional secrecy equivalent to those under Solvency I;
and
2. the areas where the third country’s supervisory regime does not currently meet the
equivalence criteria (“Gap Analysis”).
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The countries involved, and the status of the Commission’s discussions with them, is
as follows:
A. Australia, Chile, Hong Kong, Israel, Mexico, Singapore and South Africa have
expressed an interest in being part of a transitional regime. Discussions with
these countries are ongoing and decisions about their potential inclusion in a
transitional regime will not be taken by the Commission until 2013.
B. Initial discussions have been had with Brazil, China and Turkey. Whilst
discussions are at an early stage, these countries are also, in principle, interested
in inclusion in a transitional regime.
C. The Commission and EIOPA recently met with representatives from the Federal
Insurance Office and state insurance regulators from the United States. As the
prudential regulation of insurance undertakings is a state competence under US
law, a different approach for equivalence in relation to the US will be required.
D. The Japanese Financial Services Agency (the “JFSA”) has indicated its interest
in being included in a transitional regime in relation to group solvency and group
supervision. Therefore, the Commission has asked EIOPA to initiate further
discussions with the JFSA in order to carry out a Gap Analysis in these areas.
Europe – EIOPA publishes action plan for colleges of supervisors
EIOPA has published a 2012 action plan for colleges of supervisors, which is dated 16
January 2012 (the “Action Plan”).
The Action Plan details actions which colleges are required to implement during
2012, and sets deadlines for the completion of these actions. The action points are
split between action points for colleges which have not been constituted until now/
have not fulfilled the work plan for 2011, and action points for all colleges. Key
targets from the Action Plan include:
• Preparing for the implementation of Solvency II – the particular focus here is the
pre-application process for internal model approval (an ongoing task);
• Agreeing a work plan for when to take actions and decisions in 2012, in
particular in relation to Solvency II (to be completed by 30 June 2012);
• Enhancing of the regular exchange of information in colleges (to be complied
with from 30 June 2012 and ongoing); and
• (A task for the group supervisor) making a gap analysis (by the end of 2012).
Alongside the Action Plan, EIOPA also published a report (dated 2 February 2012) on
the functioning of colleges and the accomplishments of the 2011 action plan (the
“Report”). A key conclusion from the Report is that, despite the lack of a final legal
text, colleges are making great efforts to prepare for the Solvency II regime.
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Europe – European Commission White paper on pensions
The European Commission (the “Commission”) published a White Paper on 16
February 2012 entitled “An Agenda for Adequate, Safe and Sustainable Pensions” (the
“White Paper”). This follows the Commission’s Green Paper published in July 2010,
which reviewed the legal framework surrounding pension provision in Europe.
The White Paper puts forward measures to help create an environment where
employees can work for longer and save more for their retirement. The proposals aim
to balance the length of time people spend at work and in retirement. It also
encourages personal and occupational pension savings in addition to state benefits.
It addresses the possibility of introducing later retirement ages and proposes to make
pensions more portable for people who move countries. The proposals also aim to
ensure that occupational pension rights are sufficiently protected in employer
insolvency situations.
To take these proposals forward, the Commission has proposed some legislative
reforms, and it will also contemplate using codes of practice and conduct. In
particular, the Commission wants to revise Directive 2003/41/EC (the “IORP
Directive”), which deals with the supervision of institutions for occupational
retirement provision, before the end of 2012 The UK implemented the IORP
Directive through the Pensions Act 2004. The White Paper states that the aim of
this review would be to “maintain a level playing field with Solvency II”.
The suggestion that a Solvency II style regime could be imposed on pension schemes
has proved controversial, as many in the pensions industry are worried that the cost
of implementing such a regime would be substantial. The pensions systems used in
European member states vary substantially, particularly in the importance placed on
state, occupational and personal pensions savings. For that reason, it is not clear how
a review of the IORP Directive may impact UK pensions legislation. EIOPA has
promised an impact study which the industry hope will take into account the marked
difference in pension provision between member states.
UK – FSA publishes insurance newsletters
The FSA published the first General Insurance Newsletter and Life Insurance
Newsletter (together the “Newsletters”) for the year on 8 February 2012. The
Newsletters contain a summary of the FSA’s latest work in the insurance sector and
cover, amongst other things, a Solvency II policy and implementation update, an EU
Gender Directive update, and lists of other publications and speeches since the last
newsletter.
In relation to Solvency II, the FSA comments that “…we have no information to
suggest that the dates beyond 2014 will change. Firms should continue to work on
this basis and we will provide further updates as appropriate”.
The Newsletters also provide updates as to when the FSA expects to publish a
number of policy documents, including:
• a response to comments received on guidance for consultation on structured
products (due by the end of the first quarter of 2012);
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• a policy statement on insurance policies in packaged bank accounts (due in July
2012);
• a consultation on a ban of all marketing of traded life policy investments (due in
the second quarter of 2012);
• a policy statement on Solvency II and linked long-term insurance business (due
in the second quarter of 2012); and
• final guidance on payment protection products (due by the end of the first half of
2012).
China – New draft rules on the administration of representative offices of foreign insurance related institutions
On 22 March 2011, the Chinese Insurance Regulatory Commission (“CIRC”)
released new draft rules on the administration of representative offices of foreign
insurance related institutions (the “Draft Rules”). There was a public consultation
on the Draft Rules, which ended in April 2011. If finally approved, the Draft Rules
are intended to replace the rules on the administration of representative offices of
foreign insurance institutions, published on 1 September 2006, and the
interpretations of the CIRC on rules on the administration of representative offices of
foreign insurance institutions, published on 25 November 2008.
The main changes that would be made by the Draft Rules include:
1. the requirement that the total assets of the foreign insurance intermediary
institution intending to set up a representative office in China at the end of the
year immediately prior to application are at least US$2 billion would be reduced,
so that instead they would only need assets of at least US$200 million;
2. the requirements regarding the chief representative of the representative office
would be strengthened – in particular, such individuals would be required to
have 8 years’ insurance related working experience (with 2 years’ management
experience in insurance companies);
3. a “once a year face-to-face reporting” requirement would be imposed on the chief
representative; and
4. the amount of administrative penalties that could be given to any representative
office which breaches the laws would be significantly increased.
The Draft Rules are under further review by the CIRC, who will publish them once
ready. However, it is hard to estimate when this will happen as the timing may be
affected by various factors including, for example, if there are discrepancies on
certain provisions among relevant departments.
China – Renaissance of Insurance Asset Management Companies
For more than 4 years prior to the end of 2010 no new approvals for the establishment
of Insurance Asset Management Companies (“IAMCs”) had been issued by the
CIRC, and only 9 IAMCs existed in the China market. However, this condition was
changed as from December 2010 and a new round of establishment of IAMCs began.
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This was signaled by the approval for the establishment of Shengming Asset
Management Co., Ltd. in Shenzhen, which was issued on 16 December 2010.
In April 2011, in order to further control and manage potential risks in relation to
fund operations, and to improve the development of asset management businesses,
the CIRC issued Circular No. 19, which made several amendments to the 2004
‘Interim Administrative Regulations on Insurance Asset Management Companies’.
As a result of Circular No. 19, the requirement that the principal sponsor of an IAMC
has prior insurance business experience was lowered from 8 years’ prior experience to
5 years. However, other financial criteria for the establishment of an IAMC were
enhanced. For example, the minimum amount of total assets required of the IAMC’s
principal sponsor was increased by RMB5 billion to RMB10 billion, and the
minimum amount of the registered capital required of the IAMC was increased by
RMB70 million to RMB100 million.
Other significant amendments include the expansion of the business scope of an
IAMC (e.g. an IAMC will be able to operate funds from other consigners in addition
to funds from its own shareholders). In addition, an IAMC is to be allowed to set up
subsidiaries, although detailed implementation rules in relation to this area are to be
issued separately in the future.
Despite the rise in the threshold requirements for the establishment of an IAMC, the
market is still “hot”, and insurance companies are positive about setting up IAMCs.
Several approvals were issued by CIRC during 2011, including the approvals for
AnBang Asset Management Co., Ltd (in May 2011), Guangdayongming Asset
Management Co., Ltd. (in September 2011) and HeZhong Asset Management Co.,
Ltd. (in November 2011).
US – Update – States Continue to Consider Enacting the Amendments to the NAIC Insurance Holding Company System Model Act and Regulation
In 2011, Rhode Island, Texas and West Virginia became the first states to adopt
legislation to implement the December 2010 amendments to the National
Association of Insurance Commissioners (“NAIC”) Insurance Holding Company
System Regulatory Act (“Model Act”) and Insurance Holding Company System
Model Regulation with Reporting Forms and Instructions (“Model Regulation”).
Throughout 2011 and the first part of 2012, legislation was introduced in a number of
other states tracking the amendments to the Model Act. States that have considered
or are currently considering legislation incorporating aspects of the amended Model
Act include California, Florida, Illinois, Indiana, Kansas, Kentucky, Nebraska, New
York, Oklahoma and Pennsylvania. In addition, the New York Department of
Financial Services has released supplements to prior circular letters, discussing its
increased efforts to monitor holding company systems and announcing enterprise
risk management expectations. For more information on these New York regulatory
developments, please see our articles from the September 2011 Mayer Brown Global
Corporate Insurance & Regulatory Bulletin, New York Increases Efforts to Monitor
Holding Company Systems and New York Announces Enterprise Risk Management
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Expectations. While the proposed and recently enacted holding company legislation
is not uniform across the states, the legislation generally incorporates significant
changes brought about by the amendments to the NAIC models.
The Model Act and Model Regulation apply to insurance holding company systems,
which are defined as groups of two or more affiliated entities, at least one of which is
an insurer. The December 2010 revisions represent a shift in emphasis of the NAIC’s
approach to the regulation of insurance holding company systems. Historically, such
regulation has been designed to build “walls” around an insurer through regulation of
acquisitions, dividends and inter-affiliate transactions. The new approach adds a
new “windows” component to the traditional “walls” component giving insurance
regulators access to enhanced information about the activities and risk profile of an
insurer’s non-insurance affiliates.
One of the focal points of the Model Act amendments is the concept of “enterprise
risk” – defined as any activity, circumstance or event involving an insurer’s affiliate
that is likely to have a material adverse affect upon the financial condition of the
insurer or its insurance holding company system, including anything that would
cause the insurer’s risk-based capital to fall into the company action level, or would
cause the insurer to be in hazardous financial condition. The amended Model Act
requires an insurer’s ultimate controlling person to provide a confidential enterprise
risk management (“ERM”) report as part of the insurer’s “Form B” annual holding
company registration statement.
REVISIONS TO THE FORM “B” ANNUAL HOLDING COMPANY REGISTRATION STATEMENT
The Model Act revisions provide that the Form B must include a statement that the
insurer’s board of directors is responsible for any oversees corporate governance and
internal controls and that the insurer’s officers or senior management have approved,
implemented and continue to maintain and monitor corporate governance and
internal control procedures. The Form B must also include a confidential ERM
report provided by the insurer’s ultimate controlling person. An ERM report should
be designed to identify the material risks within the insurance holding company
system that could pose financial and/or reputational contagion to the insurer. The
ERM report should include material developments regarding strategy, internal audit
findings, compliance or risk management affecting the insurance holding company
system. Among other considerations, the ERM report should identify any material
activity or development of the insurance holding company system that, in the opinion
of senior management, could adversely affect the insurance holding company system.
REVISIONS TO THE “FORM A” ACQUISITION PROCESS
Among changes brought about under the revised Model Act and Model Regulation
regarding the “Form A” acquisition process, an acquiring person is required to
acknowledge that it and all subsidiaries within its control will provide information to
its home state commissioner upon request as necessary to evaluate the risk of
financial and/or reputational contagion to the insurer. An acquiring person must file
a “Form E” in the domestic state to address the competitive impact of the acquisition.
A control person that wishes to divest its controlling interest in a domestic insurer
must give the commissioner 30 days’ prior notice.
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REVISIONS TO THE “DISCLAIMER OF CONTROL” PROCESS
There is a rebuttable presumption of “control” when a person directly or indirectly
holds 10% or more of the voting securities of an insurer. Before the Model Act and
Regulation were modified, the presumption could be rebutted by filing a disclaimer of
control, which became effective immediately unless disallowed by the commissioner
after a hearing. Under the modified Model Act and Regulation, disclaimers are no
longer automatically effective upon filing. Disclaimers are only effective if not
disallowed within 30 days after filing. If disallowed, an applicant may request an
administrative hearing to seek reconsideration of the commissioner’s decision.
REVISIONS TO THE “FORM D” AFFILIATED TRANSACTION REVIEW PROCESS
The modified Model Act and Regulation provide for revisions to the “Form D” process
for review of transactions between insurers and their affiliates. Management service
and cost sharing agreements must include specific items enumerated in the Model
Act and Regulation. Amendments or modifications to previously filed agreements
must be filed with an explanation for the change and the financial impact on the
insurer. The domiciliary state commissioner must be notified within 30 days of
termination of a previously filed agreement. Among other requirements, a statement
must be made describing how each inter-affiliate transaction meets the “fair and
reasonable” standard.
ENHANCEMENTS TO THE COMMISSIONER’S EXAMINATION POWERS
Under the modified Model Act and Regulation, a commissioner can examine not only
the insurer but also its affiliates to ascertain the financial condition of the insurer,
including the risk of financial contagion to the insurer by the ultimate controlling
person, any affiliates or combination of affiliates, or the insurance holding company
system on a consolidated basis. A commissioner has the power to issue subpoenas
and examine persons under oath, and may seek a court order to enforce subpoenas,
under penalty of contempt. Sanctions for violating “Form A” approval requirements
include prohibiting all dividends or distributions from the insurer and placing the
insurer under regulatory supervision.
SUPERVISORY COLLEGES
In order to assess the business strategy, financial position, legal and regulatory
position, risk exposure, risk management and governance processes, and as part of
the examination of domestic insurers with international operations, a commissioner
may participate in a “supervisory college” with other regulators charged with
supervision of the insurer or its affiliates, including other state, federal and
international regulatory agencies.
EFFECTIVE DATES
The West Virginia amendments become effective on 1 July 2012, including the
requirement that the “Form B” include an annual ERM report.
The Rhode Island amendments became effective immediately upon passage on 27
May 2011, except for the requirement to file an ERM report, which takes effect on 1
July 2013.
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The Texas amendments became effective on 1 September 2011, but the ERM report
requirement is being rolled out in stages, based on the volume of an insurer’s total
direct or assumed annual premiums during the preceding 12-month period
(“Premium Volume”). An insurer’s annual “Form B” registration statement is
required to include an ERM report from its ultimate controlling person as part of its
first “Form B” filing due after (1) 1 July 2013, if its Premium Volume was $5 billion or
more, (2) 1 January 2014, if its Premium Volume was more than $1 billion but less
than $5 billion, (3) 1 January 2015, if its Premium Volume was more than $500
million but less than $1 billion and (4) 1 January 2016, if its Premium Volume was
$300 million or more but less than $500 million.
For additional information on the amendments to the Model Act and Regulation,
please see our article from the February 2011 Mayer Brown Global Corporate
Insurance & Regulatory Bulletin, NAIC Adopts Modified Insurance Holding
Company System Model Act and Regulation.
US – Update – NAIC Continues Consideration of AG 38
During a conference call on 21 February 2012, a joint working group of the National
Association of Insurance Commissioners’ (the “NAIC”) Life Insurance and Annuities
(A) Committee and Financial Condition (E) Committee (the “Joint Working
Group”), formed by the Executive (EX) Committee to study Actuarial Guideline 38
(“AG 38”), an NAIC model regulation which requires life insurers to establish
additional statutory reserves for certain universal life insurance policies with
secondary guarantees (“ULSG policies”)̧ took its first significant action by adopting
a bifurcated approach to AG 38 that establishes separate standards for ULSG policies
that are already in force and ULSG policies that are issued in the future.
For in force business, policies issued on or before a specified date would be treated as
closed blocks of business. Those closed blocks of in force business would be evaluated
by actuaries on a standalone basis. The evaluations would consist of asset adequacy
analyses incorporating moderately adverse scenarios. If it is determined that the
reserves are adequate on that basis, the company would not need to make an
adjustment to its in force reserves. If it is determined that the reserves are deficient
on that basis, the company would need to increase reserves to the level determined
pursuant to the asset adequacy analysis. All states would rely on the conclusions
reached pursuant to the actuarial evaluations. As such, the evaluations would lead to
a unified regulatory decision regarding the adequacy of each company’s in force
reserves and the manner and timing of any adjustments. For prospective business,
policies issued on and after a specified date, but prior to the effective date of
Principle-Based Reserving (“PBR”), would be reserved using a formulaic approach
consistent with the NAIC Life Actuarial (A) Task Force’s interpretation of AG 38 (as
modified or clarified to address any questions regarding its requirements). Policies
issued on and after the effective date of PBR would be reserved under PBR
methodology.
The Joint Working Group was created to address the issues surrounding AG 38 and
statutory reserve requirements for insurers offering certain ULSG and term
universal life products. In recent years, some regulators and industry participants
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have contended that some insurance companies may be improperly applying the
provisions of AG 38 in determining the reserves for universal life policies with
multiple secondary guarantees.
A number of issues regarding AG 38 remain outstanding and are still under
consideration by the Joint Working Group. The Joint Working Group’s draft proposal
will now be considered by the Life Insurance and Annuities (A) Committee, the
Financial Condition (E) Committee and ultimately the Executive (EX) Committee
and Plenary at the NAIC Spring Meeting on 4-6 March 2012.
The Joint Working Group is comprised of representatives from Alaska, California,
Florida, Iowa, New Jersey, New York, Tennessee, Texas and Virginia. The Joint
Working Group operates under the following charge: The joint working group shall
work expeditiously to determine whether it is prudent and necessary to develop
interim guidelines and/or tools to be utilized by regulators in evaluating reserves for
ULSG and Term UL products and, if so, to promptly develop such interim guidelines
and/or tools. As part of this effort, the working group shall make recommendations
regarding whether these interim guidelines and/or tools should be applied in force
and/or prospective ULSG and Term UL products until such time as the final
Valuation Manual is adopted. The working group shall use as guidance the work
completed by the Life Actuarial Task Force with respect to this issue. Finally, the
working group may engage resources as necessary to assist with analysis and
preparation of necessary guidelines and/or regulatory tools.
US – Update – Additional states introduce credit for reinsurance reform legislation; New Jersey proposes new credit for reinsurance regulations
Georgia and Virginia have become two of the latest states where bills have been
introduced to amend existing credit for reinsurance laws to adopt the reinsurance
risk-based collateral reforms embodied in the recently amended National
Association of Insurance Commissioners (“NAIC”) model law. Meanwhile, the New
Jersey Department of Banking and Insurance (“NJDOBI”) has released for comment
proposed new rules and amendments to existing rules to implement New Jersey’s
recently amended credit for reinsurance statute based on the NAIC model law. As we
have previously reported, the following states have already adopted reduced collateral
requirements:
• Florida (property and casualty only)
• Indiana (life, property and casualty)
• New Jersey (life, property and casualty)
• New York (life, property and casualty)
For more information on the NAIC reforms, please see our article from the October
2011 Mayer Brown Global Corporate Insurance & Regulatory Bulletin, NAIC Fall
2011 Meeting Notes. For background on the progression of reinsurance collateral
requirements reform in the US, please see our article, US reinsurance collateral
reform picks up pace, which can be found here.
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Both the recently introduced Virginia House Bill 1139 and Georgia Senate Bill 385
contain provisions that track the amended NAIC model law and would make a
significant change to the credit for reinsurance rules of those states by potentially
allowing full credit to insurers that cede risk to unauthorized reinsurers that post less
than 100% collateral. Under the newly proposed legislation in Virginia and Georgia,
credit will be allowed to a domestic insurer when risk is ceded to an assuming insurer
that has been “certified” as a reinsurer by the state insurance regulatory authority
and that secures its obligations in accordance with the requirements of the relevant
state’s insurance code. In order to be eligible for certification, an assuming insurer
must meet certain requirements, including being domiciled and licensed in a
“qualified jurisdiction” as determined by the relevant state under its statute,
maintaining financial strength ratings, maintaining minimum capital and surplus,
submitting to the jurisdiction of the relevant state, meeting filing requirements and
satisfying any other requirements of the relevant state. A rating will be assigned to
each certified reinsurer, giving consideration to the financial strength ratings of the
certified reinsurer. Most significantly, the proposed legislation provides that a
certified reinsurer must secure its obligations at a level consistent with its ratings, as
specified in rules to be adopted by the state insurance regulatory authorities, opening
the door for the possibility of risk-based collateral requirements under which a
certified reinsurer will be able to post less than 100% collateral, with the ceding
insurer still receiving credit for the ceded insurance.
The Virginia bill also contains provisions concerning the concentration of risk,
following amendments to the NAIC models that were added in the wake of similar
provisions added to New York’s Regulation 20, Credit for Reinsurance from
Unauthorized Insurers. Under the proposed Virginia legislation, a ceding insurer
would have to take steps to manage its reinsurance recoverable proportionate to its
own book of business. A domestic ceding insurer would have to notify the Virginia
State Corporation Commission (the “Commission”) within 30 days after reinsurance
recoverable from any single assuming insurer, or group of affiliated assuming
insurers, exceeds 50% of the domestic ceding insurer’s last reported surplus to
policyholders, or after it is determined that reinsurance recoverables are likely to
exceed this limit. The proposed legislation would also require a ceding insurer to
take steps to diversify its reinsurance program and notify the Commission within 30
days after ceding to any single insurer, or group of affiliated assuming insurers, more
than 20% of the ceding insurer’s gross written premium in the prior calendar year, or
after it is determined that the reinsurance ceded is likely to exceed this limit. In both
situations, the notification to the Commission is intended to demonstrate that the
exposure is being safely managed by the domestic ceding insurer.
Under the Virginia bill, the ability of reinsurers to reduce their collateral obligations
on in force business that is already reinsured and for which collateral has already
been posted will be limited by “effective date” language that tracks last minute
changes that were added to the NAIC models. The relevant language provides that
credit for reinsurance from certified reinsurers “shall apply only to reinsurance
contracts entered into or renewed on or after the effective date of the certification of the
assuming insurer. Any reinsurance contract entered into prior to the effective date of
the certification of the assuming insurer that is subsequently amended after the
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effective date of the certification of the assuming insurer, or a new reinsurance
contract, covering any risk for which collateral was provided previously, shall only
be subject to [this section] with respect to losses incurred and reserves reported from
and after the effective date of the amendment or new contract”.
Interestingly, the proposed Georgia bill does not contain the risk concentration
provision or the effective date limitation. Whether those last minute additions to the
amended NAIC models will ultimately find their way into the Georgia bill in the
legislative process remains to be seen.
On 21 February 2012, NJDOBI issued proposed new rules and amendments to
existing rules to implement the amendments to its credit for reinsurance statute that
were enacted last year. The proposed new rules are based on the recent amendments
to the NAIC model law and regulation, and NJDOBI is proposing amendments to the
existing rules to more closely track the NAIC model law and regulation. Highlights
of the proposed rules include procedures by which an insurer may become a certified
reinsurer, the basis by which a certified insurer would be rated, standards for
determining whether a jurisdiction is a qualified jurisdiction, the creation of a sliding
scale based on ratings to determine the amount of collateral required and the
addition of a provision addressing concentration risk, similar to the provision in the
recently introduced Virginia bill and discussed above. The NJDOBI proposal is
currently in the comment stage, with comments due on 21 April 2012.
We expect a number of other states to consider similar legislation this year to amend
their laws and regulations to bring them into line with the amendments to the NAIC
Credit for Reinsurance Model Law (#785) and Credit for Reinsurance Model
Regulation (#786) that were adopted at the NAIC’s 2011 Fall Meeting. Although
NAIC model laws and regulations do not become effective in any given state unless
and until they are enacted by the legislature or promulgated by the insurance
regulatory authority of that state, the NAIC model law and regulation generally have
an influence on state laws and regulations to the extent that certain aspects of the
amended models become accreditation standards of the NAIC. States strive to
maintain their NAIC accreditation so that other states will defer to them as the
primary regulatory authority for insurers domiciled in their states. Inclusion of the
amended versions of the Credit for Reinsurance Model Law and Credit for
Reinsurance Model Regulation in the NAIC accreditation standards will create a
strong incentive for states to adopt them.
In Illinois, legislation has already been introduced to amend the existing credit for
reinsurance laws to conform with the revised NAIC models. For more information
on the legislation introduced in Illinois, please see our article from the January 2012
Mayer Brown Global Corporate Insurance & Regulatory Bulletin, Illinois continues
to pursue credit for reinsurance reform.
During 2012, the NAIC will continue its consideration of credit for reinsurance
reform through the Reinsurance (E) Task Force, which will be conducting discussions
to determine which aspects of the amendments to the models will become
accreditation standards. The task force will also be establishing a new process to
evaluate reinsurance supervision in non-U.S. jurisdictions and will be forming a
subgroup to review applications to become a certified reinsurer.
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0331 insFebruary 2012
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-Editor Co-Editor
Martin Mankabady David Alberts
Partner Partner
+44 20 3130 3830 +1 212 506 2611
[email protected] [email protected]
Co-Editor Deputy Editor
Lawrence Hamilton Annemarie Payne
Partner Associate
+1 312 701 7055 +44 20 3130 3285
[email protected] [email protected]
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