International newsletter - Clyde & Co · – New rules for reinsurance portfolio transfers being...

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International Reinsurance Group International newsletter November 2014 Contents Europe update UK: UK Insurance Act 2014 and how this will affect the reinsurance landscape Page 2 France: The limitation period applicable to claims under reinsurance contracts Page 5 Middle East update Dubai: Cross-border challenges for Middle East reinsurance coverage and claims issues - part 1 Page 6 North America update US: Napa Valley earthquake – insurance implications Page 8 Asia Pacific update Shanghai: C-ROSS: A new solvency system around the corner Page 9 Singapore: The flavour of reinsurance claims in Singapore Page 11 Welcome to the second edition of Clyde & Co’s International Reinsurance Newsletter, written by lawyers from our International Reinsurance Group. In the second edition of this publication we review and discuss market trends and legislative updates prevalent within the ever evolving and turbulent world of reinsurance. With contributions from reinsurance lawyers across the Clyde & Co international network, we provide a cross-jurisdictional representation of articles focusing on, amongst other things: The UK Insurance Act 2014 and how this will affect the reinsurance landscape New rules for reinsurance portfolio transfers being considered in France Cross-border challenges for Middle East reinsurance coverage and claims issues Insurance implications of the Napa Valley earthquake Shanghai: C-ROSS: A new solvency system around the corner The flavour of reinsurance claims in Singapore

Transcript of International newsletter - Clyde & Co · – New rules for reinsurance portfolio transfers being...

Page 1: International newsletter - Clyde & Co · – New rules for reinsurance portfolio transfers being considered in France ... a warranty or a condition precedent) ... all warranties will

International Reinsurance Group

International newsletterNovember 2014

ContentsEurope update UK: UK Insurance Act 2014 and how this will affect the reinsurance landscapePage 2

France: The limitation period applicable to claims under reinsurance contractsPage 5

Middle East update Dubai: Cross-border challenges for Middle East reinsurance coverage and claims issues - part 1 Page 6

North America update US: Napa Valley earthquake – insurance implications Page 8

Asia Pacific update Shanghai: C-ROSS: A new solvency system around the cornerPage 9

Singapore: The flavour of reinsurance claims in SingaporePage 11

Welcome to the second edition of Clyde & Co’s International Reinsurance Newsletter, written by lawyers from our International Reinsurance Group. In the second edition of this publication we review and discuss market trends and legislative updates prevalent within the ever evolving and turbulent world of reinsurance.

With contributions from reinsurance lawyers across the Clyde & Co international network, we provide a cross-jurisdictional representation of articles focusing on, amongst other things:

– The UK Insurance Act 2014 and how this will affect the reinsurance landscape

– New rules for reinsurance portfolio transfers being considered in France

– Cross-border challenges for Middle East reinsurance coverage and claims issues

– Insurance implications of the Napa Valley earthquake

– Shanghai: C-ROSS: A new solvency system around the corner

– The flavour of reinsurance claims in Singapore

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Europe update: UKHow the UK Insurance Act 2014 will change the (re)insurance landscape

Following the conclusion of HM Treasury’s consultation on the proposed bill drafted by the Law Commissions of England, Wales and Scotland, an amended bill has now been presented to parliament. The bill will be following the special parliamentary procedure for uncontroversial Law Commission bills and it is therefore possible that it will now be passed before the end of the current parliamentary session (30 March 2015).

If Royal assent is obtained, the Insurance Act 2014 will apply to every insurance policy and reinsurance contract written in England and Wales, Scotland and Northern Ireland and (with certain exceptions set out below) will come into force 18 months after the date it is passed. This will allow time for policy wordings to be amended, where necessary.

Set out below are the main developments and what the bill currently looks like.

Clauses omitted from the insurance billThe following two substantial changes to the bill were made before it was presented to parliament:

– Damages for late payment. The draft bill had provided for the payment of damages once insurers had had a reasonable amount of time to investigate a claim and could not show reasonable grounds for disputing a claim. Business insurers would not have been able to contract out of this reform where they were “deliberate or reckless”.

The proposals for late payment damages have now been entirely abandoned (and not only in relation to deliberate or reckless late payment).

– The draft bill had proposed that where a term (for example, a warranty or a condition precedent) was designed to reduce the risk of a particular type of loss or the risk of loss at a particular time or in a particular place, a breach would entitle an insurer to refuse claims for losses falling within that category of risk. That proposal has also been omitted from the bill presented to parliament. Accordingly, where, for example, an

insured breaches a warranty to install a burglar alarm, the insurer will still be able to refuse cover (subject to the other incoming reforms on warranties (see further below)) where loss is caused by a flood.

It is worth pointing out, though, that the Law Commissions have advised that they will continue to endeavour to find a “workable solution” regarding these two areas, thus indicating that they do not intend to abandon the proposals entirely. As mentioned below, work will continue into next year on further possible reforms.

Summary of the main clauses remaining in the billThe following clauses are still currently included in the bill:

– Warranties: all basis of the contract clauses will be prohibited. A basis of the contract clause in a proposal form has the effect of converting all the answers in the proposal form (no matter how trivial) into warranties

In addition, all warranties will become “suspensive conditions”, allowing an insured to remedy a breach and thus come back “on cover” thereafter (and insurers will also still be liable for losses prior to the breach, as is currently the case)

– Utmost good faith/non-disclosure: these reforms will apply to business insurers only (consumer insurance having been dealt with in a 2012 Act). Insureds will still have a duty to volunteer information and will have to make a fair presentation to insurers (making disclosure in a manner that would be reasonably clear and accessible to a prudent insurer)

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They will also be required to carry out a reasonable search for information, but an insurer will be presumed to know things that are common knowledge or that an insurer offering insurance of the class in question to the insured in the field of activity in question would be expected to know in the ordinary course of business. The knowledge of an insured company will be what is known to its senior management or those responsible for the company’s insurance.

Previously, the bill provided that the knowledge of an insured would not include confidential information that it had acquired through a business relationship with a third party. That has now been amended to refer to confidential information acquired by the insured’s agent (for example, broker) or an employee of the agent through a business relationship with a third party.

The current position is that an insured may have to breach its own duty of confidentiality to comply with its duty of disclosure, but a broker would not have to breach its duty of confidentiality owed to a third party (and, for example, an insured would not have attributed to it the broker’s knowledge in such circumstances). However, the wording as currently drafted has the effect that, even if an insured actually knows something, but it acquired that knowledge from the broker, which in turn had acquired that knowledge in confidence, they will be treated as not having that knowledge. That appears to be a change from the current position.

The remedies for a misrepresentation or non-disclosure remain unchanged from the draft bill. Broadly, avoidance (without a return of premium) will be available if the insured has been deliberate or reckless and in all other cases a scheme of proportionate remedies will apply (designed to reflect the situation as it would have been had full disclosure been made).

– Good faith: it is still proposed that the remedy of avoidance for the breach of the duty of utmost good faith will be abolished (the Law Commissions having previously pointed out that where an insurer breaches its

own duty of good faith, an insured would not want the policy avoided because that would prevent it claiming under the policy).

The Law Commissions have instead indicated that insurers may be prevented from exercising a right if it has not been exercised in good faith (although it is perhaps difficult to see how a legitimate right could be exercised in a manner amounting to bad faith in all but the most extreme of circumstances). Damages are not proposed as an alternative remedy (and so an argument that late payment by an insurer amounts to a breach of the duty of good faith, thus attracting damages for later payment via an alternative route, would not work).

– Fraudulent claims: it is proposed that insurers will now have an option of terminating the policy from the date of a fraudulent act, without a return of premium (thus allowing insurers to refuse to pay any genuine claims thereafter, although they would still be liable for legitimate losses before the fraud).

Contracting out of these changesThere has been no change to the proposal that the Insurance Act will represent only a “default regime” for business insurers (although it will not be possible to contract out of the basis of the contract clause prohibition). Where insurers intend to opt out and include a “disadvantageous term”, sufficient steps must be taken to draw that to the insured’s attention before the contract is entered into. A boilerplate opting-out clause will therefore not suffice: each and every departure from the default position will have to be flagged up. Furthermore, an alternative remedy or position will have to be specified, otherwise there will be a void (and the courts are likely to imply back into the policy the position set out in the Act).

Third Parties (Rights Against Insurers) Act 2010 One surprising feature of the published bill is the inclusion of various minor provisions relating to this Act, which received royal assent on 25 March 2010, but is still awaiting a further statutory instrument to bring it into force.

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A review of the main provisions of this Act is beyond the scope of this article, but the Act is broadly intended to make it easier for direct actions against insurers to be brought by third-party claimants where an insured has become insolvent. The changes included in the Insurance Bill allow the Secretary of State for Justice greater scope to make further regulations and amend the definition of an “insured” (and, more specifically, the type of insolvency event that the insured must undergo to trigger the application of the Act).

Although no deadline to bring the 2010 Act into force is set out in the Insurance Act, it is worth noting that the powers being passed to the Secretary of State come into force two months after the bill receives royal assent. Accordingly, it might be anticipated that the aim is to bring the 2010 Act into force at some point in 2015.

Further reform?In addition to continuing to work on a possible implementation of the two areas deleted from the bill (see above), the Law Commissions have indicated that they are aiming to produce a third and final report in 2015 on various issues that were not addressed in the bill but that have been the subject of review and proposals in earlier papers.

These include the proposed abolition of the need for a formal marine policy (section 22 of the Marine Insurance Act 1906) and reform of section 53(1) of the 1906 Act, which makes a broker liable to pay premiums to the insurer and applies only to marine insurance policies.

Please note that this article was first published in Strategic Risk Magazine on October 23 2014.

Nigel BrookPartner, LondonT: +44 (0)20 7876 4414 E: [email protected]

Michelle RadomProfessional Support Lawyer, LondonT: +44 (0)20 7876 4441 E: [email protected]

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Europe update: ParisFrance considering new rules for reinsurance portfolio transfers

The French Insurance Code currently provides a fairly efficient mechanism for the transfer of insurance portfolios.

More precisely, Article L. 324-1 of the Insurance Code allows insurance companies to apply to the regulator, the Autorité de Contrôle Prudentiel et de Résolution (ACPR) for authorisation to transfer all or part of their portfolio.

The process is relatively straightforward and implies broadly the following steps:

1. Informal contacts with the ACPR to explain the contemplated operation

2. Formal submission of the request

3. Publication, by the ACPR, of the proposed transfer in the French Journal Officiel (French official legal gazette), which opens a two month period for “creditors” to make observations

4. Once the two-month period is over, if it decides to approve the transfer, the ACPR will publish its decision in the Journal Officiel and such decision will effectively transfer all the contracts within the portfolio to the new insurer. Policyholders will have one month to terminate their contract if they are unhappy with the new insurer, although there is no obligation on the transferor to inform them of the transfer

Oddly enough, article L. 324-1 refers to insurance companies and not to portfolios of insurance contracts. One could therefore argue that an insurer intending to transfer a reinsurance portfolio to another insurer could do so under Article L. 324-1. In practice, it is our experience that the ACPR unlikely to validate such a process.

Reinsurers are therefore left with a cryptic provision of the French Insurance Code, Article L. 324-1-2, that provides reinsurers may be authorised to transfer all or part of their portfolios to other insurers or reinsurers. However, contrary to what applies to insurers, this process does not have any effect on the reinsurance contractual relation.

In other words, reinsurers must still obtain the agreement of every cedant in order transfer the reinsurance contracts to the new reinsurer. This entails that in practice, each reinsurance contract must be novated. This has led the regulator to consider that seeking authorisation for the transfer of reinsurance portfolios is a simple option, as it has absolutely no effect in practice. It tends to be perceived as an administrative burden which has no impact on the legal certainty of the operation.

In that context, a proposal currently discussed may bring a welcome change to the reinsurance portfolio transfer process. A new article to be introduced in the Insurance Code would provide that reinsurance companies are authorised to transfer all or part of their portfolio to another insurance or reinsurance company, subject to the supervisory authority of the transferee confirming that it has enough eligible own funds for covering its Solvency Capital Requirement. Cedants would then have three months to refuse the transfer, as of the date on which they receive a registered letter with proof of receipt from the transferor informing them of the transfer.

If adopted, this process will greatly simplify reinsurance portfolio transfers where the transferor is a French reinsurer (or the French branch of a reinsurer established in the European Economic Area). This is certainly welcome, especially in the context of operations relating to portfolios in run-off. Nevertheless, a notification to the cedant is still required, which may prove challenging in the context of old portfolios. In addition, the effect is limited to cedants located in the European Economic Area.

Yannis SamothrakisAssociate, Paris T: +33 1 44 43 89 85 E: [email protected]

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Middle East update: DubaiCross-border challenges for Middle East reinsurance coverage and claims issues – Part 1

Reinsurance arrangements in the Middle East often involve cross-border transactions, with the cedant based locally, and the reinsurer located in one of the traditional reinsurance centres of London, Munich, Zurich or Paris. This can give rise to challenges when interpreting wordings and handling difficult coverage issues and claims. Although historically, English law has offered a relatively clear and stable basis for determining coverage issues and interpreting wordings, a number of recent English cases have created concerns for both cedants and reinsurers. In the first part of a three-part series of article, we review the basis for the concerns, and specific issues regarding incorporating warranties into reinsurance contracts that are intended to operate on a back to back basis.

Local law challenges The Middle East presents a number of challenges when dealing with the inter-relationship between, on the one hand, underlying insurance wordings and how those are interpreted in the local courts and, on the other hand, how reinsurance wordings with international reinsurers are viewed and applied. There is a general lack of jurisprudence at any level in the local courts in most Middle East jurisdictions. There are also very few laws or regulations specifically relating to reinsurance in these jurisdictions. As a result, although any local litigation between underlying insured and cedant will be subject to local law and local courts, resolving any issues that arise in relation to the reinsurance coverage is rarely likely to be dealt with in a competent and understandable manner by the local courts. Most reinsurance practitioners (at both cedant and reinsurer level) will shy away from having to litigate in the local courts.

Historically, English law and the English courts have developed a useful body of jurisprudence that has sought to interpret and give effect to the commercial intention of the relationship between local cedant and reinsurer. There is a long line of English cases (beginning with Vesta v. Butcher in 1973) which takes into account the difference

in interpretation of clauses such as warranties in local insurance contracts, and how those are to be interpreted in a reinsurance context, to give effect to the back-to-back intention in the re/insurance contracts. For this reason, the inclusion of English law and jurisdiction clauses in reinsurance contracts has been seen as a good choice to assist with any disputes that arise in a reinsurance context. It has generally been regarded that the English courts will look to respect and to give effect to the commercial relationship between cedant and reinsurer.

However, a recent decision by the English court has challenged this traditional belief, and will require cedants and their brokers to make sure that the wordings used at the underlying and reinsurance contracts take into account the realities of the local law position, and are clear as to the intentions of the parties, in order to achieve their commercial intention.

“Princess of the Stars”In the most recent “Princess of the Stars” appeal (August 2014)1, the Court of Appeal upheld the underlying decision of Mr Justice Field handed down in 20122, that allowed

1 Amlin and others v. Oriental Assurance Corporation (“The Princess of the Stars”) [2014] EWCA Civ 1135 2 [2013] EWHC 2380 (Comm)

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reinsurers to obtain a declaratory order that they were not liable to claims arising from their reinsurance of Oriental’s exposure to a Philippines ferry disaster that took place in June 2008. The ‘Princess of the Stars’ ferry had set sail from Manila on a short scheduled trip to a nearby island, but sailed into the eye of Typhoon Frank, capsized and sank. Only 32 of the 851 people on board survived. Both the insurance and reinsurance contracts contained a ‘typhoon warranty’ in very similar terms, which provided that ‘violation of this warranty shall render this policy void’.

The pre-emptive action by reinsurers before the English courts took place before there had been any determination of the cover for the loss in the Philippines. The underlying policy wording incorporated wording that was said to be subject to English law, and the reinsurance contract contained a ‘follow settlements’ clause. Oriental argued that any interpretation of the warranty in the reinsurance policy would need to take into account the manner in which the underlying policy, and specifically the typhoon warranty, was interpreted before the Philippine courts. On that basis, Oriental argued at first instance that reinsurers’ action was premature, and should be stayed pending determination of the coverage position in the Philippines. It would only be in the light of that position having been determined that the interpretation of the warranty in the reinsurance policy could be determined. The English court disagreed, which decision was upheld by an earlier Appeal Court decision3, although the Court of Appeal, recognizing the position this put Oriental in, did so “with little enthusiasm”.

The most recent Court of Appeal decision concerned a review of the judge’s decision as to whether the court was entitled to interpret the terms of the warranty in the reinsurance policy independently. This decision was upheld. The Court also held that it was capable of construing the warranty in the reinsurance policy in accordance with English law, and that there was no material difference between English law and Philippine law with respect to policy interpretation or the effect of a breach of warranty.

In the English court’s view, the two clauses should be construed identically. It is not clear exactly what evidence as to Philippine law and procedure was produced to the court.

In the light of the above, the Court of Appeal upheld the decision of Mr Justice Field that reinsurers were entitled to bring the action for declaratory relief prior to any determination by the Philippine courts, and were entitled to an order that reinsurers were not obliged to indemnify Oriental for the losses that fell to be covered as a result of the ferry disaster.

Implications for local cedantsThe decision has resulted in Oriental, as the 100% local insurer in the Philippines, being left to fight its corner on the warranty issue, without reinsurance support. Should the Philippine court take a different view on the warranty issue, and hold that Oriental’s policy does respond, it will be left to Oriental to foot the bill without any reinsurance cover. An invidious position for Oriental, indeed!

The problems that arose in this case could potentially have been addressed by:

1. More care being taken when incorporating an express warranty as a standalone provision in a reinsurance contract that was clearly intended to operate on a back-to-back basis

2. Clear evidence of exactly how the underlying warranty was likely to be interpreted under Philippines law before a Philippines court

The issues highlighted above are likely to apply in a Middle East setting as well. It appears, on the basis of this judgment, that absent careful attention being paid to reinsurance wordings and without properly highlighting the local jurisdiction issues, local cedants will be vulnerable to pre-emptive actions by reinsurers being taken seeking to avoid liability for claims that might well prove to be payable in the local jurisdiction.

Wayne JonesPartner, Dubai T: +971 4 384 4106 E: [email protected]

3 [2012] EWCA Civ 1341

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North America update: USThe Napa Valley earthquake – insurance implications

The quake was the strongest to strike the Northern California region since the 1989 Loma Prieta earthquake, which had a magnitude of 6.9. Over 200 injuries were reported, but only 17 patients were admitted to hospital, and no deaths have been reported. The Governor of California declared a state of emergency, citing damage to critical infrastructure, including broken water mains and gas lines, damaged power lines, and buckled roads and highways.

Over 200 commercial and non-commercial buildings have been yellow-tagged in the Napa region, meaning that property owners are permitted to re-enter the building to clean up, but are not permitted to occupy the structure until further notice. Approximately 70 buildings have been red-tagged, meaning that they may not occupied at all. Several businesses in the region are shut down until further notice due to property damage.

The earthquake has also had a major impact on the USD 13 billion wine industry in Napa Valley. While grapes still on the vine have not been affected, damage to harvesting and processing equipment could delay or inhibit this year’s harvest and crush. Additionally, several wineries and wine storage facilities reported a major loss of wine due to damaged barrels. It is anticipated that the biggest loss will be wines from the 2013 vintage, much of which is still in barrels, as most of the 2012 vintage has already been bottled.

All told, it is estimated that the earthquake caused USD 1 billion in property damage, and it is likely that a number of property damage and business interruption claims will be made to insurers.

Approximately 90% of Californians do not have earthquake insurance, and most residential and commercial policies specifically exclude coverage for earthquake-related damage. The 1994 Northridge earthquake that struck southern California with a magnitude of 6.7 generated hundreds of thousands of insurance claims that totaled USD 12.5 billion, as well as a slew of bad faith and coverage lawsuits that went on for years. The Northridge quake also prompted the creation of the California Earthquake Authority, a state-run insurance pool, but historically high premiums and deductibles have caused many Californians to forgo earthquake-specific coverage.

Andrew WangerPartner, San FranciscoT: +1 415 365 9840 E: [email protected]

Aishlin P HicksAssociate, San FranciscoT: +1 415 365 9855 E: [email protected]

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Asia Pacific update: ShanghaiC-ROSS: A new solvency system around the corner

Under the current Chinese solvency regulation, which was established in 2003 by the China Insurance Regulatory Commission (CIRC), solvency capital is calculated using a fixed formula.

Following the worldwide trend toward a risk-oriented solvency regulation such as the European Solvency II, a new risk-oriented solvency system named “China Risk Oriented Solvency System” (C-ROSS) has been introduced by the CIRC from 2012. The calculation method under C-ROSS is far more complicated than the current Chinese solvency regulation.

How C-ROSS works - three-pillar frameworkThe CIRC adopts a “three-pillar” approach to the structure of C-ROSS, which is very similar to the European Solvency II.

Pillar I – Quantitative capital requirementsQuantitative capital requirements deal with the risks which are quantifiable in measuring the minimum capital requirement. Specifically, it links these requirements to three types of risks: insurance risk, market risk and credit risk.

– Insurance risk refers to the unanticipated losses arising from the deviation of actual insurance loss ratio from an insurer’s anticipated loss ratio. Unlike the current solvency system which has a unified capital requirement, capital requirements for different lines of property insurance vary significantly under C-ROSS. For example, the minimum capital requirement for automobile insurance is much lower than for enterprise property insurance

– Market risk refers to unanticipated losses arising from the variation of interest rate, equity price (public or private equity), real estate price, and exchange rate in the operation of an insurance company

– Credit risk means the unanticipated losses arising from the late performance or non-performance or a decrease of level of credit of the counterparty of the insurance company. Under C-ROSS, the risk

factors to be used as a basis of default ratio of offshore reinsurers are significantly higher than those applicable to onshore reinsurers. Consequently, the domestic cedants would be required of a higher capital requirement if they reinsure risks to offshore reinsurers

Pillar II – Qualitative supervisory requirementsPillar II includes four types of unquantifiable risks, namely operational risk, strategic risk, reputational risk and liquidity risk.

– Operational risk means losses arising from defect internal operation processes, human error, defect system or external incidents (including legal and compliance risks)

– Strategic risk means risks arising from an ineffective strategy or its implementation or a change of business operation environment

– Reputational risk refers to an adverse reputation due to the insurer’s business operation or external incidents

– Liquidity risk means the risk of the insurer’s default in paying its debts due to a shortage of capital

CIRC places its supervisory actions based on the integrated risk rating: the insurer’s overall solvency is evaluated based on both quantitative results in pillar I and qualitative risk assessments in pillar II. The insurance companies are categorised into level A, B, C and D, among which, A and B types of insurers are considered as having both a good solvency ratio and sound risk control of operation, strategic, reputational, or liquidity risks, while C and D types of insurers either fail to meet minimum solvency ratio or have a high operational, strategic, reputational or liquidity risks even if the minimum solvency ratio is met.

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CIRC also places another level of supervision under C-ROSS: solvency aligned risk management requirements and assessment (ie companies’ own solvency management (known as COSM under European Solvency II)). CIRC sets up the minimum standards of risk management for insurers and will evaluate their practices such as governance structure, internal controls, management structure and processes and etc.

Pillar III – Market discipline mechanismPillar III of C-ROSS enforces oversight of insurance companies by the media, rating agencies, financial analysts and the general public by requiring information disclosure from these companies. It intends to use the self-regulation power of market to supervise the insurers and also to optimise the market environment.

SummaryC-ROSS reflects the CIRC’s intention to shift their focus from compliance monitoring and capital to evaluation of the risk profiles of insurers as well as the quality of their risk management and governance systems and to move apace with reforming the insurance industry in China. We anticipate the implementation of C-ROSS will profoundly change the operations of the Chinese insurance industry in due course.

Please note that this article was first published in Global Reinsurance in August 2014

Carrie Yang Partner, ShanghaiT: +86 21 6035 6123 E: [email protected]

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Asia Pacific update: SingaporeThe flavour of reinsurance claims in Singapore

Singapore continues to show all the signs of growing from strength to strength as an insurance hub, with many of the world’s leading insurers choosing Singapore as their regional base. It is the ability to tap into regional markets, rather than just the domestic market, that seems to represent the key opportunity for growth, with offshore reinsurance accounting for a large part of the overall insurance business written. In order to access the growing markets in the ASEAN region, Singapore based insurers will often enter into facultative reinsurance arrangements with local cedants, who essentially front the risk with little or no retention.

This regional focus colours much of the reinsurance market in Singapore and, in particular, shapes the claims issues that we often face. For starters, it is a common mistake to view the region as a single market. The hybrid mix of legal systems that underpin the countries in the ASEAN region mean the local law position across the board varies widely, encompassing legal systems based on both common law as well as civil law. This can have an impact on everything from the validity of certain provisions in an insurance contract to the limitation periods that an insured or cedant may have to bring a claim. Mitigating this risk may not be as straightforward as simply electing that the policy be governed by a preferred law and jurisdiction, as a number of countries in the region require both insurance and reinsurance contracts covering local risks to be subject to local law.

The reinsuring of risks across different jurisdictions can often result in confusion over policy construction, such as the extent to which terms in an underlying policy may have been incorporated into the reinsurance arrangements, and how differences between the two should be resolved. A local court’s approach to such issues could well be inconsistent with what reinsurers understand the position to be. The common use of shorthand reinsurance slip wordings can therefore be problematic.

The fact of cultural and linguistic differences is also a commonly underestimated source of difficulties. Local cedants, and indeed brokers, may have varying levels of expertise in different markets, a different understanding of insurance products or a different approach to dispute resolution. These differences may be exacerbated through language difficulties or meanings lost in translation. This reinforces the need for reinsurers to ensure that they benefit from clear claims control language. It also highlights the importance for reinsurers to establish good local relationships with their co-reinsurers, cedants and brokers, and the need for clear communication and a sensitive approach.

Whilst the types of coverage issues faced by reinsurers in Singapore may well remain common to markets elsewhere in the world, the varied regional landscape in which these players are operating creates a unique background against which these disputes play out, and means that the outcomes may be less predictable than insurers would hope.

Vanessa Kilner Associate, SingaporeT: +65 6544 6512 E: [email protected]

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International Reinsurance Group: Key contactsEurope David AbbottLondon E: [email protected]

Ignacio Figuerol MadridE: [email protected]

Peter Hodgins Dubai E: [email protected]

Ian RobertsSingaporeE: [email protected]

AfricaDaniel Le RouxJohannesburgE: [email protected]

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Asia PacificIk Wei Chong ShanghaiE: [email protected]

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John NichollTorontoE: [email protected]

Peter HirstLatin AmericaE: [email protected]

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Michael KnoerzerNew YorkE: [email protected]

Wayne Jones Dubai E: [email protected]

Maurice Kenton LondonE: [email protected]