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1 Insurance and Reinsurance 2010 British Virgin Islands British Virgin Islands Michael Burns, James McConvill and Heidi Maharaj Appleby MARKET TRENDS AND REGULATORY FRAMEWORK 1. Please give a brief overview of the insurance and reinsurance markets in your jurisdiction, identifying market trends. The British Virgin Islands (BVI) is now the world s fourth largest offshore domicile for captive insurance companies (that is, companies set up primarily to insure the risks of a parent company). In recent years, the BVI has experienced a rapid expansion in the number of insurance managers and intermediaries (for example, agents and brokers) setting up in the jurisdiction. Industry experts believe this recent trend is just the beginning, and that many other international players in the insurance business will shortly establish a presence in the BVI. On the ground, infrastructure and support services have substantially improved in recent years to respond and cater to the development of the BVI insurance sector. In addition to its reputation for integrity as a financial centre, the BVI offers a number of advantages that are particularly relevant to the insurance industry, including competitive pricing in comparison to other offshore jurisdictions and a modern regulatory regime. These make it an attractive environment for the provision of insurance services. 2. What is the regulatory framework for insurance/reinsurance activities? Insurance law in the BVI is derived from English common law as supplemented by the Insurance Act 2008 (Act), the Insurance Regulations 2009 (Regulations) and the Regulatory Code 2009 (Regulatory Code). There is a general prohibition against carrying on insurance business of any kind in or from within the BVI unless the requisite licence is obtained or an exemption applies (see Questions 8 and 9). Insurance business is defined by the Act to mean the business of undertaking liability under a contract of insurance to indemnify or compensate a person in respect of loss or damage, including the liability to pay damages or compensation contingent on the happening of a specified event, and includes life insurance business and reinsurance business. An entity is deemed to be carrying on insurance business in the BVI if it (Act): Occupies premises in the BVI to conduct business as an insurer. Markets services to residents of the BVI. Is a BVI business company that carries on insurance business outside the BVI. The Act distinguishes between a BVI insurer (a business company incorporated in the BVI, which must hold a Category A, Category C or Category D insurance licence) and a foreign insurer (a foreign company, which must hold a Category B insurance licence) as well as between long-term insurance business and general insurance business. General insurance business consists of motor, property, liability, financial loss, marine and aviation, goods in transit, and accident and health insurance. Long-term business consists of life, annuity or health insurance. A further distinction is made between domestic and non-domestic business. Domestic business is insurance business, excluding reinsurance business, the main objective of which is to insure a person who is resident in the BVI at the time the insurance contract is effected against: Any kind of risks (except risks in relation property). Any risks of any kind in relation to immovable property situated in the BVI. Personal property which, at the time the insurance contract is effected, is held or based in the BVI. On 1 January 2002, an independent regulatory body, the Financial Services Commission (FSC), was established in the BVI to separate the regulation of financial services from the government. The FSC oversees the licensing and supervision of all insurers, insurance managers, intermediaries and agents conducting insurance business in or from within the BVI. CONTRACTS OF INSURANCE 3. What is a contract of insurance for the purposes of the law and regulation in your jurisdiction? Unlike under the old Insurance Act 1994, the Act does not include a definition of contract of insurance. Insurance contracts are governed by the general law of contract, subject to some additional special principles such as the duty of good faith. The essential features of an insurance contract are: That a sum of money will be paid by the insurer on the happening of a specified event. Uncertainty as to the happening of the event, either as to whether it will happen or not, or, if it is bound to happen (like the death of a human being), as to the time at which it will happen. CROSS-BORDER HANDBOOKS 55 This chapter was first published in the Cross-border Insurance and Reinsurance Handbook 2010 and is reproduced with the permission of the publisher,

2 British Virgin Islands Insurance and Reinsurance 2010 An insurable interest in the insured, which is normally that the event is one that is, on the face of it, adverse to his interest. To constitute an insurable interest, the same general conditions must be fulfilled in all classes of insurance, although there are distinctions in the way in which the topic is approached. In life insurance, the insured must have an insurable interest at the commencement of the risk, but he need not retain it until the end of the insured life. In fire insurance, and in marine insurance where there is no lost or not lost clause, the insured cannot recover unless he has an insurable interest at the time of the loss, but it is immaterial that he had no interest at the commencement of the insurance provided he has acquired it before the loss. 6. Can insurers or reinsurers carry on non-insurance business? Please summarise any restrictions on their business activities. No, a BVI insurer cannot carry on any business in the BVI or elsewhere otherwise than in connection with, or for the purposes of, the insurance business that it is authorised by its licence to undertake. However, this prohibition does not apply to foreign insurers. 7. Are there any statutory limits or other restrictions on, or requirements relating to, the transfer of risk by insurance or reinsurance companies? 4. Are all contracts of insurance regulated in your jurisdiction? Yes. The main types of insurance contracts that fall within the scope of the Act and the Regulations are contracts of insurance in relation to motor, property, liability, financial loss, marine and aviation, goods in transit, and accident and health insurance. Other insurance contracts that are regulated in the BVI include annuity business, life insurance, investment-related life insurance and permanent health insurance. The Act does not contain a definition of contracts of insurance and does not directly regulate contracts of insurance (see Question 3). The focus of the Act is on the licensing and supervision of insurance companies and licensees, rather than on specifically regulating contracts of insurance. INSURERS AND REINSURERS 5. Are insurers and reinsurers regulated in the same way in your jurisdiction? Essentially yes, although if a BVI company wishes to conduct openmarket reinsurance business, it must obtain a Category D insurance licence. Open-market reinsurance business is reinsurance business where the insurer is not connected with the reinsurer. In addition, a BVI insurer must not enter into any agreement to reinsure any of its risks with a person, unless that person satisfies the prescribed criterion for an approved reinsurer (Act). The prescribed criterion for an approved reinsurer is that the insurer has a financial strength rating of A++, A+, A or A- assigned to it by the AM Best Company (Regulatory Code). Insurers holding the following types of licences must submit to the FSC a summary of their reinsurance arrangements in relation to insurance business carried on in the BVI on an annual basis (Regulatory Code): Category A insurance licence (issued to a BVI company, which entitles the holder to carry out insurance business, including domestic business). Category B insurance licence (issued to a company registered, incorporated or formed outside the BVI, which entitles the holder to carry out insurance business in the BVI, including domestic business). Yes, a BVI insurer cannot enter into an agreement to reinsure any of its risks with a person unless either: That person satisfies the prescribed criterion for an approved reinsurer, that is, that the insurer has a financial strength rating of A++, A+, A or A- assigned to it by the AM Best Company (see Question 5). The FSC, on the application of the BVI insurer, approves that person as a reinsurer for the liabilities specified in the application. In addition, a BVI insurer must establish and maintain underwriting and pricing strategies and policies that provide for the transfer of appropriate levels of risk away from the insurer through adequate and appropriate reinsurance or other risk transfer arrangements. These reinsurance arrangements must be appropriate given the level of capital of the insurer, taking into account the real transfer of risk, and the profile of risks that it underwrites. OPERATING RESTRICTIONS 8. Does the entity or person have to be authorised or licensed in your jurisdiction? If so, please outline the key steps involved in this process and the requirements that must be satisfied. Yes. The Act applies to any person carrying on insurance business (see Question 2) in or from within the BVI. An application for a licence as a BVI insurer must be made to the FSC in the prescribed form along with a detailed business plan containing specific information laid out in the Regulatory Code. In considering an application for a licence, the FSC must have regard to whether both: The applicant, its directors, senior officers and any persons having a significant interest in the applicant is a fit and proper person to be granted a licence (that is, either possessing or having available to it the knowledge and expertise necessary to carry on insurance business in a competent manner). The applicant has a sufficient nexus to the BVI (one of the key indicators of nexus is jurisdiction but incorporation in the BVI will not necessarily provide sufficient nexus). In relation to a foreign insurer, an application for a licence must be made to the FSC in the prescribed from but the FSC may exempt the foreign insurer from the requirement to submit a business plan. 56 CROSS-BORDER HANDBOOKS This chapter was first published in the Cross-border Insurance and Reinsurance Handbook 2010 and is reproduced with the permission of the publisher,

3 Insurance and Reinsurance 2010 British Virgin Islands The FSC will not issue a licence to a foreign insurer unless it is satisfied of all of the following: The applicant is authorised by its home jurisdiction to carry on insurance business of the relevant classes of business. The relevant insurance business would be lawfully carried on if it were carried on in its home jurisdiction. The relevant insurance business would be subject to the supervision of the authority responsible for the supervision of insurance business in its home jurisdiction. As foreign insurers are not incorporated as BVI business companies, the applicant must also demonstrate some form of nexus to the BVI including: Carrying on business from a principal place of business in the BVI. Maintaining a physical presence in the BVI or appointing an appropriately qualified representative in the BVI. Maintaining books and records in the BVI that will enable the applicant, if granted a licence, to demonstrate compliance with its regulatory and anti money-laundering and combating the financing of terrorism obligations and that will enable the FSC to properly supervise the licensed business. Carrying on business with BVI business companies or with persons or companies resident in the BVI. requirement to obtain a licence to conduct insurance business in the BVI if it is of the opinion that the main objective of the insurance business to which the application relates is to insure a risk or risks: That no licensed insurer is willing or able to insure. That licensed insurers have insufficient capacity to insure. Where local insurers propose insurance terms significantly less advantageous than the terms available from the unlicensed insurer making the application for exemption. An application for an exemption may also be made to the FSC by a licensed insurance broker that wishes to solicit or negotiate insurance business (including the renewal and continuance of such business) with an unlicensed insurer or to introduce a client resident in the BVI to, or bring such a client together with, an unlicensed insurer with a view to the insurance of risks. Not applicable. 10. Are there any restrictions on the ownership or control of insurance-related entities in your jurisdiction (for example, age, nationality, qualification or other restrictions)? The FSC will determine whether sufficient nexus to the BVI has been demonstrated on a case-by-case basis. Therefore, the fact that an applicant can show that one or more of the above indicators are applicable to it will not necessarily be enough to demonstrate sufficient nexus to the BVI. Yes. No person can carry on, or hold himself out as carrying on, business as an insurance intermediary in or from within the BVI unless he obtains a licence from the FSC to do so (Act). An insurance manager or loss adjuster is prohibited from carrying on, or holding itself out as carrying on, business as an insurance manager in or from within the BVI unless it obtains a licence from the FSC to do so. 9. Please summarise the main exemptions or exclusions from authorisation or licensing that are available in your jurisdiction, if any. The requirement to obtain a licence to conduct insurance business does not apply to: A member or syndicate of Lloyd s, where the member or syndicate is carrying on business in the BVI in accordance with an approval granted by the FSC. An approved reinsurer that enters into a reinsurance contract with a licensed insurer in the BVI. The FSC also considers applications for an exemption from the The FSC can refuse to issue a licence to either a BVI insurer or a foreign insurer if it is of the opinion that the applicant, its directors and senior officers and any person having a share or other interest in the applicant, whether legal or equitable, does not satisfy the FSC s fit and proper criteria. In addition, a person is prohibited from, either directly or indirectly, acquiring a significant interest in a BVI insurer unless the prior written approval of the FSC has been obtained. The FSC does not grant approval unless the individual concerned satisfies the FSC s fit and proper criteria. While this prohibition does not apply to a foreign insurer, the latter is required to provide written notice of any change in their ownership or control to the FSC (see Question 11). A person holding a significant interest in a licensed insurance intermediary cannot sell, transfer, charge or otherwise dispose of his interest without obtaining the prior written approval of the FSC. Similarly, a person cannot, either directly or indirectly, acquire a significant interest in a licensed insurance intermediary without the prior written approval of the FSC. In addition, licensed insurance intermediaries cannot appoint a director or senior officer without the prior written approval of the FSC and must provide written notice to the FSC within 14 days after a director or senior officer ceases to hold office, or be employed by them. The FSC does not grant an approval unless it is satisfied that the person concerned is an individual who satisfies the FSC s fit and proper criteria (see Question 11). The restrictions that apply above to licensed insurance intermediaries also apply to licensed insurance managers. CROSS-BORDER HANDBOOKS 57 This chapter was first published in the Cross-border Insurance and Reinsurance Handbook 2010 and is reproduced with the permission of the publisher,

4 British Virgin Islands Insurance and Reinsurance Do owners or controllers have to be pre-approved by or notified to the relevant authorities before taking, increasing or reducing their control or ownership of the entity? Yes, a BVI insurer cannot appoint a director or senior officer without the prior written approval of the FSC. The FSC does not grant an approval unless it is satisfied that the person concerned is an individual who satisfies the FSC s fit and proper criteria. A BVI insurer is required to provide written notice to the FSC within 14 days after a director or senior officer of the insurer ceases to hold office with, or be employed by, the insurer. A person owning or holding a significant interest in a BVI insurer cannot sell, transfer, charge or otherwise dispose of his or its interest in the insurer, or any part of his or its interest, unless the prior written approval of the FSC has been obtained. A BVI insurer also cannot engage in any of the following activities if it results in a person acquiring a significant interest in the insurer or increasing or decreasing the size of the interest of a person who already owns or holds a significant interest in the insurer: Cause, permit, acquiesce in a sale, transfer, charge or otherwise dispose of, or issue or allot, any shares. Cause, permit or acquiesce in any other reorganisation, including of its share structure. A foreign insurer, on the other hand, must provide written notice to the FSC within 14 days after any of the following events: The appointment of a director or senior officer. A director or senior officer ceases to hold office with, or be employed by, the foreign insurer. Any change in the persons who own or hold a significant interest in the foreign insurer. The FSC can choose to disapply or modify these requirements on the application of the foreign insurer. Licensed insurance intermediaries cannot appoint a director or senior officer without the prior written approval of the FSC. They must provide written notice to the FSC within 14 days after a director or senior officer ceases to hold office, or be employed by them. The FSC does not grant an approval unless it is satisfied that the person concerned is an individual who satisfies the FSC s fit and proper criteria. The same provisions that apply above to licensed insurance intermediaries are also applicable to licensed insurance managers. 12. Please summarise the key ongoing requirements that the authorised or licensed entity must comply with. A BVI insurer must: Appoint and at all times have an insurance manager (in the case of holders of a Category C or D licence). Maintain a staffed office in the BVI (or a representative in the BVI who holds an insurance intermediary s licence and is appointed to act as its insurance agent or a person holding an insurance manager s licence). Appoint and have at all times at least two directors. Maintain its business in a financially sound condition (that is, having admissible assets and generally conducting its business to be in a position to meet its liabilities as they fall due). Maintain a minimum solvency margin that is adequate to enable the insurer to meet its liabilities at all times. Maintain its capital resources at a level that is adequate to support its insurance business, taking into account the nature, size, complexity, structure and diversity of the business and its risk profile. Maintain adequate systems and controls to monitor and assess its capital adequacy requirements on an ongoing basis. Maintain a minimum contributed capital of US$200,000 (about EUR135,865) where the insurer is authorised to carry on any class of long-term business and US$100,000 (about EUR67,933) in any other case. Keep records at its office in the BVI, or the office of its BVI representative, which: show and explain all its transactions in respect of the business it carries on in the BVI; enable its financial position to be determined with reasonable accuracy; enable it to prepare financial statements and returns as it is required to prepare and make available under the Act; and enable its financial statements to be audited in accordance with the Act. Appoint an actuary (in the case of a long-term insurer). Notify the FSC in writing of places either in or outside the BVI where its other financial records are maintained. Submit to the FSC on an annual basis a summary of its reinsurance arrangements together with copies of all reinsurance treaties entered into. The capital resource, contributed capital and solvency margin requirements that apply to BVI insurers do not apply to foreign insurers, as responsibility for the latter s regulation and supervision is seen to lie with the relevant supervisory authority of their home jurisdiction. However, a foreign insurer is required to: Appoint a representative in the BVI (if it does not have a staffed office in the BVI) who either holds: an insurance intermediary s licence and is appointed to act as its insurance agent; or an insurance manager s licence. Keep at its BVI office (or the office of its BVI representative) records that are sufficient to show and explain all transactions in respect of the business it carries on in the BVI and enable it to prepare such returns as it is required to prepare and make available under the Act and the Regulatory Code. 58 CROSS-BORDER HANDBOOKS This chapter was first published in the Cross-border Insurance and Reinsurance Handbook 2010 and is reproduced with the permission of the publisher,

5 Insurance and Reinsurance 2010 British Virgin Islands Notify the FSC in writing of the place or places, whether in or outside the BVI, where its financial records (other than those outlined above) are maintained. Submit to the FSC a summary of its reinsurance arrangements with respect to insurance business carried on in the BVI, together with copies of all reinsurance treaties entered into relating to that business. A licensed insurance intermediary must: Maintain its contributed capital at a level that is adequate to support its licensed business, taking into account the nature, size, complexity, structure and diversity of the business and its risk profile. Maintain adequate systems and controls to monitor and assess its capital adequacy requirements on an ongoing basis. Maintain a minimum contributed capital of US$25,000 (about EUR16,983). Not appoint a director or senior officer without the prior written approval of the FSC, and provide written notice to the FSC within 14 days of a director or officer ceasing to hold office with, or being employed by, the licensee (and provide a statement to the FSC setting out the reasons for the departure). Maintain professional indemnity, fidelity and other insurance as is appropriate taking into account the nature, size, complexity, structure and diversity of the licensed business. In addition, an insurance agent must notify the FSC within 14 days if it ceases to act as the insurance agent for the insured. Any licensed insurance manager that fails to comply with the provisions of the Act is guilty of an offence and liable to be fined. The amount of the fine depends on the nature of the offence. 14. Are there any restrictions on the persons to whom insurance/ reinsurance services and contracts can be marketed or sold? Yes. Licensed insurance agents cannot solicit applications for insurance, or negotiate for insurance business, on behalf of an unlicensed insurer or provide advice to clients of an unlicensed insurer. Licensed insurance brokers also cannot: Solicit or negotiate insurance business (including the renewal and continuance of such business) with an unlicensed insurer on behalf of a client resident in the BVI. Introduce a client resident in the BVI to, or bring such a client together with, an unlicensed insurer with a view to the insurance of risks. This restriction does not apply if the unlicensed insurer obtains an exemption (see Question 9). REINSURANCE 15. To what extent can/must a reinsurance company monitor the claims, settlements and underwriting of the cedant company? Licensed insurance managers are subject to the same ongoing requirements as those applicable to insurance intermediaries (see above). 13. Please outline the possible consequences of an entity failing to comply with applicable legal and regulatory requirements (including the disciplinary powers any relevant regulators have, as well possible customer remedies). In practice, reinsurers can and do regularly conduct audits of the activities and decisions of a cedant company. An important reason for this is the operation of the follow the fortunes doctrine, which provides that, as a general rule, reinsurers should follow the decision by the cedant company to make a payment to the original policyholder, by paying the cedant company in accordance with the reinsurance policy. Any BVI or foreign insurer that fails to comply with the provisions of the Act is guilty of an offence and is liable to be convicted and fined. Depending on the offence, the penalties range from US$25,000 (about EUR16,983) to US$75,000 (about EUR50,950) for corporate bodies and US$10,000 (about EUR6,793) to US$50,000 (about EUR33,966) for individuals. Where a person is convicted of an offence under the Act or the Regulations, the court having jurisdiction to try the offence may, in addition to any punishment that it may impose, order that person to comply with the provisions of the Act or the Regulations in relation to the contravention for which he has been convicted. Any licensed insurance intermediary or broker that fails to comply with the provisions of the Act is guilty of an offence and liable to be fined. The amount of the fine depends on the nature of the offence. In view of the follow the fortunes doctrine, reinsurers closely monitor, advise and influence cedant companies. Many reinsurance contracts include an audit and inspection clause enabling the reinsurer to do this. A typical audit by the reinsurer is conducted before, rather than after, a specific decision is made by the cedant company. Importantly, an audit or inspection by the reinsurer should not be improperly carried out by the reinsurer to second-guess what the cedant company has done, or to unduly delay a decision being made. 16. What disclosure/notification obligations does the cedant company have to the reinsurance company? At general law, a duty of utmost good faith (uberrima fides) is considered to form a part of insurance companies, including, reinsurance contracts. The duty of utmost good faith requires both the reinsurer and cedant company to deal with each other with CROSS-BORDER HANDBOOKS 59 This chapter was first published in the Cross-border Insurance and Reinsurance Handbook 2010 and is reproduced with the permission of the publisher,

6 British Virgin Islands Insurance and Reinsurance 2010 honesty, openness and candour. The duty of utmost good faith imposes two key obligations on cedant companies in relation to reinsurance companies: Cedant companies must disclose all material facts of an original policy, and the risks attaching to this policy, to the reinsurer. To satisfy the duty, the cedant company must provide the reinsurer with a level of disclosure that places the reinsurer in the same position that it would have been in if it was determining the risk and possibility of coverage of the original policy. Cedant companies must provide timely and adequate notice about a claim or potential claim to the reinsurer. The cedant company should be focused on providing notice as soon as the company becomes aware of a potential claim. Timely and adequate notice allows the reinsurer to determine whether to renew and/or change the premium under the reinsurance contract with the cedant company. INSURANCE POLICIES 17. Please outline the main general form and content requirements for insurance policies in your jurisdiction, including a description of the most commonly found clauses. The main term that is generally implied into (or perhaps more accurately, arises out of) insurance contracts is the duty of utmost good faith. This duty of utmost good faith limits the flexibility of parties to negotiate the terms of an insurance contract by requiring that parties must deal with each other with honesty, openness and candour (see Question 16). The paramount obligation arising out of this duty of utmost good faith is for the insured to disclose all material facts to the insurer both before their entry into the insurance contract and during the life of the contract. This obligation to disclose material facts as part of the duty of utmost good faith also applies to the insurer. In the context of reinsurance, the duty of utmost good faith requires the reinsured to disclose to the reinsurer all material facts relating to the original policy and the third party. The reinsured is also required to act honestly when negotiating any settlement with an original policyholder. In addition, the duty of good faith requires that the reinsured provides adequate notice of a claim or potential claim to the reinsurer. For notice to be adequate, it should be provided to the reinsurer as soon as the reinsured becomes aware of a potential claim. An insurance policy is not necessarily one single document. It can often comprise a variety of documents and papers, and in turn is supplemented by implied terms at general law. The following sections are commonly included in an insurance policy: Preamble. This sets out the name of the insurer and the basic cover provided by the contract. Body of policy. This sets out the key terms of the contract of insurance. Schedule. This usually sets out the period of insurance and the premium that is payable and identifies both the insured and the subject matter of the insurance. There are three commonly found types of clauses in insurance policies in the BVI. These can best be categorised as: Clauses that set in place the limits of the insurer s liability (for example, clauses describing the risk that is covered, exclusions from cover, limits on the monetary amounts to which the insurer is entitled, conditions precedent and conditions subsequent to an insurer s liability). Clauses imposing certain obligations on the insured in relation to the making of a claim (for example, warranties, the breaching of which by the insured entitles the insurer to terminate the contract). Clauses setting out the insurer s rights against third parties (for example, when a third party is specified in an insurance contract as a person to whom the insurance cover extends). As part of the duty of utmost good faith, the reinsurer must also adhere to the follow the fortunes doctrine (see Question 15). 19. What customer protections are generally included in insurance policies to supplement relief available under general law? Contracts in the BVI are governed by the common law of contract. The principal characteristic of insurance contracts, which distinguishes them from most other contracts, is that they have long been held to be contracts of the utmost good faith (see Question 18). The position at common law is that the remedy for the breach of the duty of utmost good faith would be avoidance of the contract, as opposed to damages. There are no other consumer protections that are generally included in insurance policies as a matter of BVI law. There are no consumer protection laws in the BVI, apart from provisions in the BVI Constitution (Virgin Islands Constitution Order 2007) providing for the office of Complaints Commissioner. The Complaints Commissioner was, however, established to provide a complaints handling service in relation to public services only. This does not extend to complaints in relation to insurance policies with BVI insurers or foreign insurers. 20. Please identify examples of standard policies or terms produced by trade associations or relevant authorities, if any, and explain how these can be obtained. 18. Please identify any terms found in insurance policies in your jurisdiction that are implied by law or regulation (identifying the applicable laws or regulations and any mandatory provisions). As in other jurisdictions, the BVI implies certain terms into insurance contracts under common law. Many insurance companies operating in or from within the BVI are subsidiaries or branch offices of regional or international insurance companies, and therefore typically use their own standard policies. However, standard Lloyd s and London Market Association clauses are often used in the BVI by licensed and exempted insurance companies (Arch and Lloyd s respectively). 60 CROSS-BORDER HANDBOOKS This chapter was first published in the Cross-border Insurance and Reinsurance Handbook 2010 and is reproduced with the permission of the publisher,

7 Insurance and Reinsurance 2010 British Virgin Islands 21. What must be established to trigger a claim under an insurance policy? The question of what must be established to trigger a claim under an insurance policy depends on whether the policy is an occurrence policy or a claims-made policy. The trigger under an occurrence policy is the occurrence of some kind of injury or damage. Liability arises under the particular policy if the injury or damage occurred during the policy period. A motor vehicle policy, in which the occurrence of an accident is the trigger for coverage, is a good example of an occurrence policy. MAIN INSURANCE/REINSURANCE TRADE ORGANISATIONS British Virgin Islands Financial Services Commission- Insurance Division Main activities. This arm of the FSC is tasked with regulating, supervising and inspecting all insurance companies, insurance managers and other intermediaries operating within the BVI to ensure compliance with the provisions of the Act, the Regulations and the Regulatory Code. W By contrast, under a claims-made policy, it is the making of a claim that triggers the coverage under the policy. The claim must be made within the reporting period specified in the contract. Most claims-made policies include a requirement that the insured must report the claim to the insurer as soon as practicable after the basis for the claim is discovered. Professional indemnity insurance policies are commonly constructed as claims-made policies. In relation to both types of policy, a certain event needs to occur before an insured can claim for a loss. It is important to note, however, that the occurrence of an event does not mean that the insured is automatically entitled to claim. It must first be determined, for example: If the event is covered under the policy. Whether the event occurred within the particular territory covered under the policy. That the claim is not excluded for a particular reason specified in the policy. 22. Please provide brief circumstances in which third parties can claim under an insurance policy? The common law doctrine of privity of contract applies to contracts of insurance as to other contracts. However, there are a number of exceptions to the doctrine specifically in respect of insurance. The common law has established that in certain circumstances, third parties may be entitled to claim under an insurance policy. These circumstances include: When a third party is expressly mentioned in the policy as a person to whom insurance cover extends. Where an insured holds either an insured property or the benefits of an insurance policy on trust for a third party beneficiary. Where an insured acts as agent to the third party for the purpose of that third party obtaining insurance. Where the third party is not named as a party to the insurance policy but has or acquires an interest in property that is insured property under the policy. Where the insurance policy has been validly assigned to a third party. It is generally the responsibility of the insured to enforce any obligations of the insurer to a third party. Where, however, an insured BVI Association of Insurance Managers Main activities. A not-for-profit association formed to represent the growing number of insurance managers in the BVI. W refuses to bring a claim, the third party may do so, provided that the insured is added as an additional defendant to the proceedings. 23. Is there a time limit outside of which the insured/reinsured is barred from making a claim? Under the BVI s Limitation Ordinance, the time limit for contractual claims is six years from the date that the cause of action accrued. However, the policy determines in each case the time limit within which claims have to be made under the policy. 24. Can the original policyholder or other third party enforce the reinsurance contract against a reinsurer? The general position is that an original policyholder (or other third party) does not have rights to enforce the original insurance contract against the reinsurer. This is because the original policy is between the reinsured and the original policyholder. The reinsurer is not a party and therefore does not owe any obligations (other than to the reinsured under the separate reinsurance contract). This general position can, however, be changed through the insertion of a clause into the reinsurance policy to confirm that the original policyholder may obtain payment directly from the reinsurer. Typically, this obligation of the reinsurer is only triggered when the reinsured (the insurer under the original policy) is insolvent or otherwise unable to pay. This clause is occasionally used to protect the original policyholder in circumstances where it is contemplated that the original insurer may assign the policy to another insurance company. This can be particularly useful given that there are at present no government schemes in the BVI to provide compensation if a policyholder for whatever reason cannot claim under a contract of insurance when entitled to do so. CROSS-BORDER HANDBOOKS 61 This chapter was first published in the Cross-border Insurance and Reinsurance Handbook 2010 and is reproduced with the permission of the publisher,

8 British Virgin Islands Insurance and Reinsurance What remedies are available for breach of an insurance policy? The remedies available depend on the characterisation of the particular clause of the insurance policy that has been breached. If a clause in an insurance policy is characterised as a warranty, then a breach of this clause entitles the innocent party to terminate the contract. Termination takes effect from the time that the breach is found to have occurred. If a warranty is expressed in absolute terms in the insurance policy, then a breach can be found to have occurred (triggering the right of the innocent party to terminate the contract), regardless of whether the relevant conduct caused or contributed to the loss. If there is a breach of a so-called collateral term in a policy, the innocent party is only entitled to claim damages. In addition, if the insured does not comply with a condition precedent contained in an insurance policy, the insurer is entitled to deny liability for the particular loss. Liability cannot be denied, however, if it remains possible that the condition may be complied with. INSOLVENCY 26. Please outline the regulatory framework for dealing with distressed or insolvent insurance or reinsurance companies, or other persons or entities providing insurance or reinsurance related services. TAX 27. Briefly describe the tax treatment for insurers, reinsurers, and other persons or entities providing insurance and reinsurance-related services in your jurisdiction. Insurers, reinsurers and other persons providing insurance and reinsurance-related services are exempt from BVI income, corporation or profits tax, inheritance tax, estate duty, withholding tax, capital gains tax, or capital transfer tax. BVI domiciled insurance entities with offices and employees in the BVI would, however, be subject to payroll tax and social security contributions. DISPUTE RESOLUTION 28. Are there special procedures or venues for dealing with insurance or reinsurance complaints or disputes in your jurisdiction? The Court system in the BVI consists of a Magistrates Court, a High Court and a Court of Appeal, with the final court with appellate jurisdiction being the Privy Council in London. The High Court deals with most insurance or re-insurance disputes in the first instance. Commercial disputes are dealt with in the Commercial Division of the High Court, in the BVI. 29. Please give a brief overview of the main dispute resolution methods used to settle reinsurance claims. A licensed insurer must maintain its business in a financially sound condition so that it is able to pay its debts as they fall due, failing which it is to notify the FSC immediately (Act). Failure to notify the FSC is a criminal offence. Insurers must also maintain a minimum solvency margin (meaning that the value of an insurer s allowable assets must exceed the value of its liabilities and allow it to meet its liabilities at all times) in accordance with the Regulatory Code, failing which the insurance company is to notify the FSC immediately (Act). Failure to notify the FSC is a criminal offence. In most cases, insurance disputes are resolved in the High Court (see Question 28). In cases where the policy contains an arbitration clause, any dispute may be resolved by arbitration under the provisions of the Arbitration Act The Arbitration Act contains provisions on domestic arbitrations and on the enforcement of foreign awards. Disputes may also be resolved by negotiation or mediation if the parties to the dispute elect this. REFORM The liquidation of insurance companies is regulated under the Insolvency Act 2003 (Insolvency Act). The provisions of the Insolvency Act restrict the right of the members of an insurance company to appoint a liquidator and provide the FSC with additional powers to seek the appointment of a liquidator over an insurance company. On an application for the appointment of a liquidator, the court may reduce the amount of an insurance company s contracts instead of appointing a liquidator. The Insolvency Act also contains special provisions in relation to the management of long-term insurance policies by a liquidator and requires the liquidator to carry on long-term business with a view to its transfer to another insurance company. 30. Please summarise any proposals for reform of the law, regulation or rules in your jurisdiction relating to the provision of insurance or reinsurance services. The Act, and accompanying Regulations, came into force on 1 February 2010 and revamped the regulation and supervision of the insurance industry in the BVI. There are no further proposals for reform at this time. CONTRIBUTOR DETAILS Michael Burns, James McConvill and Heidi Maharaj Appleby T F E W 62 CROSS-BORDER HANDBOOKS This chapter was first published in the Cross-border Insurance and Reinsurance Handbook 2010 and is reproduced with the permission of the publisher,

9 Navigating offshore options can be tricky. Guiding clients, while keeping their unique business goals in mind, takes skilled lawyers with an unbiased perspective and complete knowledge of jurisdictional strengths. Experienced professionals providing tailored solutions. Appleby. Winner Offshore Law Firm Super League 2009 Which Lawyer? applebyglobal.com THE RIGHT PEOPLE. THE RIGHT PL ACES. THE RIGHT SOLUTIONS. Bahrain Bermuda British Virgin Islands Cayman Islands Hong Kong Isle of Man Jersey London Mauritius Seychelles Zurich Offshore Legal, Fiduciary & Administration Services

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