1 A Q&A GUIDE TO INSURANCE AND REINSURANCE LAW IN HONG KONG MARKET TRENDS AND REGULATORY FRAMEWORK 1 Please give a brief verview f the insurance and reinsurance markets in yur jurisdictin, identifying market trends The infrmatin belw is taken frm the 2008 Annual Reprt f the Office f the Cmmissiner f Insurance (OCI) f the Hng Kng Gvernment. Unless therwise stated, statistics are as at 31 December Market data Lw entry barriers mean the insurance market is crwded and cmpetitive. There are 178 authrised insurers cmprising: 112 general business insurers. 47 lng-term business (life) insurers. 19 cmpsite insurers (bth general and lng term). Pure reinsurers (insurers authrised t carry n nly reinsurance business) frm 14 f the general business insurers and five f the cmpsite insurers. Mst internatinal insurers have peratins in Hng Kng. Over 50% f insurers are incrprated lcally, ften as a lcal subsidiary f a large internatinal insurer, with the rest cming frm 23 different cuntries, but predminantly frm the US (14), Bermuda (14) and the UK (13). Hng Kng has: 508 registered insurance brkers. 31,042 registered insurance agents. The majr lines f business, using ttal premiums as the benchmark, are: General business: Accident and health (26%) General liability (24%) Prperty damage (22%) Mtr vehicle (11%)
2 Lng-term business: Premium incme Individual life business (88%) Retirement scheme management (9%) The insurance industry makes a majr cntributin t the ecnmy. Grss annual premium incme increased significantly during the 1990s and cntinued t d s until 2008 (befre the ecnmic crisis). Grss premium incme fr 2007 ttalled HK$195 billin (abut US$25.2 billin) (ver 12% f GDP). Lng-term business frms the largest sectr f the insurance market. Grss premiums fr lng-term business in 2007 ttalled HK$173 billin (just ver 87% f 2007 s ttal premium incme). Individual life insurance is the largest part f this business (88%). At the end f 2007, abut 7.1 millin individual life plicies were in frce, equivalent t mre than ne life plicy per resident. General business nly grew by 5.7% during 2007 (grss premiums ttalling HK$24 billin (abut US$3.1 billin)). Lcal assets maintained fr general business fr 2007 ttalled ver HK$79 billin (abut US$10.2 billin). Hwever, underwriting prfit fr general business was significantly dwn in Insurance penetratin (measured as premiums as a percentage f GDP) std at 10.7% fr lng-term business, but nly 1.5% fr general business. Market cncentratin The general business market remains fragmented. The tp ten insurers have histrically been respnsible fr nly abut 40% f market share by grss premium. The life insurance market has traditinally been far mre cncentrated. The tp ten life insurance cmpanies enjy a market share by ffice premium f just ver 74%, half f which is cncentrated within the tp fur cmpanies. The pure nshre reinsurance market is als very cncentrated. In 2007, the tp five reinsurers had an aggregate market share f ver 82% in grss premiums fr direct insurers. Majr trends The majr insurance market trends ver the past few years include: The grwth f wealth management and investment linked prducts. Frm 1990 nwards, an ageing ppulatin and increased prsperity led t a large increase in the sale f wealth management and retirement planning prducts, predminantly investment-linked insurance plicies. By the end f
3 2007 investment-linked prducts accunted fr mre than half f life business by grss premium. Investment-linked business declined during 2008 with premiums falling by just under 40%, and figures fr the first quarter f 2009 shwed a fall f a further 51% (cmpared with the same perid in 2008). This trend will prbably cntinue as cnsumers switch frm maximising returns t capital preservatin. Creatin f the Mandatry Prvident Fund scheme (MPF). This cmpulsry retirement savings scheme was intrduced at the end f Under the MPF, emplyers and emplyees must cntribute a mnthly minimum amunt f salary (currently HK$1,000 each (abut US$130)) t a privately perated retirement scheme established and administered under the MFP Scheme Ordinance. By the end f 2007 there were 70,295 existing retirement scheme cntracts carrying net liabilities f HK$145.7 billin (abut US$18.8 billin). Clser Ecnmic Partnership Arrangement (CEPA). CEPA is the first free trade agreement between Hng Kng and Mainland China. Since it came int effect in 2004, lcally incrprated insurers in Hng Kng wh meet the access cnditins can cnduct insurance business in Mainland China. CEPA als allws Hng Kng residents with the necessary qualificatins and wh are appinted by mainland insurance institutins t carry n insurancerelated business in Mainland China. Since 2008, under CEPA Hng Kng insurance agencies can set up whlly wned enterprises in the mainland t prvide insurance agency services t mainland insurance cmpanies. 2 What is the regulatry framewrk fr insurance/reinsurance activities? Hng Kng is a Special Administrative Regin (SAR) f the Peple s Republic f China. Hng Kng has an entirely separate legal system frm Mainland China. Its cnstitutinal framewrk is derived frm the Basic Law under which Hng Kng exercises executive, legislative and independent judicial pwer. Under the ne cuntry, tw systems principle, Hng Kng law has, since 1997, remained based n English cmmn law supplemented by lcal legislatin (largely based n English legislatin) and will d s until at least Insurers and insurance intermediaries are regulated by varius bdies and a mixture f statues, gvernment regulatin and self regulatin. Insurance Cmpanies Ordinance (ICO) The legal framewrk fr the insurance industry is prvided by the ICO and its subsidiary legislatin including the: Insurance Cmpanies (Determinatin f Lng Term Liabilities) Regulatin. Insurance Cmpanies (Margin f Slvency) Regulatin.
4 Insurance Cmpanies (General Business) (Valuatin) Regulatin. The ICO is derived frm the English Insurance Cmpanies Act 1974 (as amended in 1981 and then cnslidated in the Insurance Cmpanies Act 1982). The ICO recgnises and regulates: Insurers. An insurer carries n insurance business in r frm Hng Kng (ther than Llyd s) (ICO). Insurance business is carried n if it either (sectin 2(3), ICO): Maintains an ffice r agency in Hng Kng fr that purpse Hlds itself ut as carrying n insurance business in r frm Hng Kng. Insurance agents. An insurance agent hlds himself ut t advise n r arrange insurance cntracts in r frm Hng Kng as an agent r sub-agent f ne r mre insurers. An appinted insurance agent is an insurance agent appinted by and registered with an insurer as an agent. Only an appinted insurance agent can hld himself ut as an insurance agent. Insurance brkers. An insurance brker carries n the business f negtiating r arranging cntracts f insurance in r frm Hng Kng as the plicyhlder s r ptential plicyhlder s agent, r advising n insurancerelated matters. An authrised insurance brker is an insurance brker wh is either: Authrised by the Insurance Authrity under sectin 69 A member f a bdy f insurance brkers apprved by the Insurance Authrity (see belw) under sectin 70. The cntract nly requires sme element f insurance fr the persn arranging it t require authrisatin as a brker, and nly an authrised insurance brker is permitted t hld itself ut as an insurance brker. The ICO uses the cllective term insurance intermediaries fr insurance agents and insurance brkers. A persn cannt act as bth an appinted insurance agent and an authrised insurance brker (sectin 65(3), ICO). Insurance Authrity (IA) The main regulatry bdy is the IA, established under the ICO. The Cmmissiner f Insurance is respnsible fr supervising and regulating the insurance industry. The IA authrises insurers, and mnitrs and scrutinises their financial strength and sustainability by reviewing their financial statements and business returns, ensuring
5 cmpliance with the slvency standards and ther ICO requirements, including requirements fr: General insurers t maintain assets in Hng Kng. Lng-term insurers t maintain the statutry slvency margin. Insurers t submit annual audited financial statements and business returns, and fr lng-term insurers t submit actuarial reprts. Supervising insurance intermediaries. The IA can issue guidelines n the exercise f its functins (ICO). These are fr the guidance f authrised insurers, insurance intermediaries and their auditrs and actuaries. T date, the IA has issued 13 guidance ntes (referred t with the prefix GN) (www.ci.gv.hk/press/index_03_01.html). The guidance ntes are nt legally binding, but imprtantly they indicate hw the IA interprets and enfrces ICO requirements. Breach f the guidelines is likely t lead t increased IA regulatry scrutiny. Hng Kng Federatin f Insurers (HKFI) The HKFI (see bx, Main insurance/reinsurance trade rganisatins) represents the insurance industry. Mst authrised insurers are members (at the end f September 2009, it had 90 general business members and 44 life insurance members). It plays an imprtant rle in the self-regulatin f the industry thugh varius cdes f practice, guidance ntes and ther self-regulatry measures including the: Cde f Cnduct fr Insurers (Insurers Cde). Cde f Practice fr the Administratin f Insurance Agents (Agency Cde). The Insurers Cde sets ut the standards with which HKFI members must cmply when issuing cnsumer insurance cntracts (private insurance cntracts with Hng Kng resident individuals). The Agency Cde (the HKFI will sn release the revised seventh editin) sets ut the requirements fr appinting, supervising and mnitring f insurance agents by their appinting insurer. CONTRACTS OF INSURANCE 3 What is a cntract f insurance fr the purpses f the law and regulatin in yur jurisdictin? There is n statutry definitin f an insurance cntract fr the purpses f law r regulatin in Hng Kng. As Hng Kng law is based n English cmmn law, the defining principles f an insurance cntract can be derived frm the English Prudential Insurance Cmpany v
6 Cmmissiners f Inland Revenue  2KB 658. An insurance cntract under Hng Kng law is therefre a cntract where ne party (the insurer) agrees, in return fr cnsideratin (the premium), t indemnify r prvide a benefit t the ther party (the insured) if an uncertain and adverse event ccurs. As under English law: The usual cntract law principles such as ffer and acceptance, cnsideratin and intentin t create legal relatins apply. The insured must have an insurable interest in the subject matter f the insurance plicy at the time a claim is made. The insurance cntract des nt have t be in writing (except fr marine insurance), althugh almst every insurance cntract is in writing. 4 Are all cntracts f insurance regulated in yur jurisdictin? All insurance cntracts are regulated. The insurance business classes relevant fr ICO purpses are set ut in the Ordinance, including a narrative fr each class describing the features f a cntract falling within that class. A cntract within these classes and which is nt therwise an insurance cntract (fr example, because it is nt an indemnity cntract such as a life insurance plicy) is deemed an insurance cntract fr ICO purpses (sectin 3(2), ICO). It is unlikely that any insurance cntract wuld fall utside this cmprehensive list. INSURERS AND REINSURERS 5 Are insurers and reinsurers regulated in the same way in yur jurisdictin? The ICO des nt distinguish between an insurer and a reinsurer (they bth fall within the ICO definitin f insurer) and are therefre regulated almst identically, except that: There is n requirement fr a pure reinsurer t maintain assets in Hng Kng in cmpliance with sectin 25A f the ICO. An insurer is authrised t carry n either general business r lng-term business, but nt bth (it is n lnger pssible fr an insurer t btain a cmpsite licence, that is ne licence permitting it t carry n bth general business and lng-term business), but a prfessinal reinsurer can btain a cmpsite licence. Prfessinal reinsurance cmpanies enjy a preferential tax treatment (see Questin 27).
7 Therefre, in this chapter insurer includes a reinsurer, and references t insurance include reinsurance unless therwise stated. 6 Can insurers r reinsurers carry n nn-insurance business? Please summarise any restrictins n their business activities. Insurers can carry n nn-insurance business. Hwever, the IA des nt authrise applicants t carry n insurance business in r frm Hng Kng unless it is satisfied that the carrying n f sme ther frm f business is nt cntrary t existing r ptential plicyhlders interests (sectin 8(3)(g), ICO). The authrisatin cnditins cntinue t apply t insurers after authrisatin. 7 Are there any statutry limits r ther restrictins n, r requirements relating t the transfer f risk by, insurance r reinsurance cmpanies? There is n statutry limit r restrictin n the transfer f risk but the fllwing matters are relevant. T be authrised as an insurer, applicants (except captive insurers) must satisfy the IA that they wuld nt engage in a frnting peratin (under which the ceding cmpany (the primary r frnting cmpany) cedes the risk it has underwritten t its reinsurer with the ceding cmpany retaining nne r a small part f that risk fr its wn accunt) (Authrisatin Guidelines). These cnditins cntinue t apply t an insurer after authrisatin. What cnstitutes a small part f that risk is nt specified, but it wuld generally be difficult t persuade the IA t accept risk retentin f less than 10% f a particular class f business. An insurer must either have adequate reinsurance arrangements fr the risks f each class f business it insures, r justify t the IA why there are n arrangements fr this purpse (sectin 8(3)(c), ICO). Further guidance n reinsurance arrangements with related cmpanies is set ut in GN12, but the IA nly accepts this kind f reinsurance if thse related cmpanies have a sufficiently high credit rating. OPERATING RESTRICTIONS 8 Des the entity r persn have t be authrised r licensed in yur jurisdictin? If s, please utline the key steps invlved in this prcess and the requirements that must be satisfied. Insurers A cmpany wishing t carry n insurance business in r frm Hng Kng must apply t the IA under sectin 7(1) f the ICO fr authrisatin t carry n the relevant classes f insurance business. The main requirements fr authrisatin are set ut in the ICO (principally sectin 8(3)), including requirements cvering:
8 The applicant s: Place f incrpratin (it must be a cmpany) Financial status Reinsurance arrangements Ability t cmply with the ICO and the fitness f its directrs and cntrllers. Finance, including that the applicant must bth: Have the minimum amunt f paid up share capital Maintain an excess f its assets ver its liabilities f nt less than the required slvency margin (t safeguard the risk its assets are insufficient t meet its liabilities in unpredictable events). Paid-up share capital. An insurer must generally have a minimum share capital f HK$10 millin (abut US$1.29 millin). This is increased t HK$20 millin (abut US$2.58 millin) fr a cmpsite insurer (bth general and lng-term business) and fr an insurer carrying ut statutry insurance business (mainly mtr vehicle r emplyees cmpensatin). The minimum capital requirement is, hwever, reduced t HK$2 millin (abut US$260,000) fr a captive. The insurer maintaining a slvency margin mre than the statutry amunt fr up t three years frm authrisatin. Fr a general business insurer the slvency margin is the greater f: 20% f the relevant premium incme up t HK$200 millin (abut US$25.8 millin), plus 10% f the amunt by which the relevant premium incme exceeds HK$200 millin 20% f the relevant claims utstanding up t HK$200 millin, plus 10% f the amunt by which the relevant claims exceed HK$200 millin. This is subject t a minimum f HK$10 millin and increased t HK$20 millin fr insurers carrying n statutry business. Fr a lng-term business insurer, the slvency margin is the greater f: HK$2 millin
9 The amunt specified under the Insurance Cmpanies (Margin f Slvency) Regulatin 1995 (generally 4% f the mathematical reserves and 0.3% f the capital at risk). Fr a captive the slvency margin is the greater f: HK$2 millin 5% f net premium incme 5% f net claims utstanding The applicant must als satisfy the IA that it will cmply with the additinal Authrisatin Guidelines requirements, including: Maintaining an ffice as its place f business in Hng Kng with a prfessinal management and staff establishment apprpriate t the nature and scale f its peratins based in that ffice. A lcally based chief executive as its cntrller. Keeping and maintaining prper accunt bks t enable audit and actuarial valuatins. Sufficient financial resurces t finance its peratins set ut in its threeyear business plan. Financial backing f its parent r cntrller, wh must be reputable persns f gd financial standing. A bard f directrs with sufficient knwledge and experience f the insurance business. In additin, a lng-term business applicant must satisfy the IA: That it has sufficient actuarial expertise, including a qualified staff actuary t advise n relevant matters (and must submit a reprt and certificate frm the qualified actuary n the applicant s business plan cnfirming prudent and satisfactry arrangements regulating actuarial matters have been made). Where the applicant intends t carry n investment-linked business, that it has adequate accunting prcedures t prperly identify and value assets and liabilities, and prvide timely reprts t plicyhlders, and that it has sufficient investment management expertise t manage the invested funds. An verseas applicant must als satisfy the IA that it:
10 Is incrprated in a cuntry where there is a cmprehensive cmpany law and insurance law. Is an insurer under the effective supervisin f an insurance authrity in its hme jurisdictin. Is a well-established insurer with internatinal experience and f undubted financial standing. Alternatively, it may establish a lcal subsidiary t carry n its business, thereby aviding these additinal requirements. Varius dcuments must be filed with the applicatin including: A business plan. A market feasibility reprt demnstrating the viability f that business plan. Particulars f all directrs and cntrllers. Insurance agents An insurance agent must be appinted by and registered with an authrised insurer. The agent must als be registered with the IARB (Agency Cde). An insurance agent may als appint: Respnsible fficers (respnsible fr the cnduct f their insurance agency business). Technical representatives (wh undertake the agent s day-tday insurance agency business). Respnsible fficers and technical representatives must als be registered with the IARB. The registratin requirements fr insurance agents, respnsible fficers and technical representatives are set ut in the Agency Cde. These persns must be fit and prper and the Agency Cde sets ut the IARB s grunds in deciding this. Agents must als cmply with the ther Agency Cde requirements (Minimum Requirements fr Agents) cncerning age, residency r wrk visa and educatinal level, and have the minimum qualificatins (clauses 52 t 65, Agency Cde), including having passed all relevant papers f the Insurance Intermediaries Qualifying Examinatin (IIQE) unless exempt). In additin: The insurer must appint its insurance agents under a written agency agreement meeting the minimum requirements f a mdel agency agreement adpted by the HKFI frm time t time.
11 The insurer must keep and maintain, and allw public inspectin f, a register f appinted insurance agents, and a sub-register f their respnsible fficers and technical representatives. An insurance agent cannt act fr mre than fur insurers, f which n mre than tw can be lng-term insurers. A respnsible fficer r technical representative f an insurance agent cannt be a respnsible fficer r technical representative f anther agent. Insurance brkers Mst insurance brkers becme authrised by jining ne f the tw authrised self-regulatry bdies (the CIB r PIBA). Therefre, the authrisatin requirements and prcedure depend n that bdy s rules. Hwever, using the CIB and its membership regulatins as an example, the applicant must cmply with the minimum requirements fr the authrisatin f an insurance brker specified by the IA (sectins 69(2) and 70(2), ICO (Minimum Requirements fr Brkers)) including the requirements n: Age. The brker r its chief executive must be ver 21. Residency r wrk visa. The brker r its chief executive must be a Hng Kng permanent resident r a Hng Kng resident whse emplyment visa cnditins d nt restrict him frm being engaged in insurance brking business. Qualificatins and experience. The brker r its chief executive must have an acceptable insurance qualificatin and a minimum f tw years experience in insurance in a management psitin and have passed the IIQE (unless exempted). Capital and net assets. The applicant must have a minimum net asset value and a minimum paid up share capital f HK$100,000 (abut US$12,900). Prfessinal indemnity insurance. A minimum limit f indemnity fr any ne claim and in any ne insurance perid f 12 mnths f nt less than the greater f HK$3 millin (abut US$387,000) r an amunt depending n its aggregate insurance brkerage incme. Client accunts. Separate client accunts must be kept. Bks and accunts. Prper bks and accunts must be kept.
12 The applicant must als satisfy the CIB it is fit and prper t be an insurance brker and that its chief executive and technical representatives are als fit and prper t hld thse psitins. 9 Please summarise the main exemptins r exclusins frm authrisatin r licensing that are available in yur jurisdictin, if any. Insurers The restrictin n carrying n an insurance business in r frm Hng Kng withut therwise being authrised by the IA des nt apply t: Llyd s names. An underwriters assciatin with IA apprval (althugh t date nly ne has been apprved). The fllwing are exempt frm IA authrisatin (sectin 51, ICO): Any bdy f persns, crprate r incrprate bund tgether by custm, religin, kinship, natinality r reginal r lcal interest, nt fr the purpse f gain and whse grss premium incme des nt exceed HK$500,000 (abut US$64,500). A persn carrying n Hng Kng reinsurance business nly, althugh this exemptin des nt apply t: A bdy crprate incrprated in Hng Kng A bdy crprate incrprated elsewhere which has a place f business in Hng Kng Any ther persn r any partnership having a place f business in Hng Kng. A registered trade unin carrying n insurance business fr members prvident fund r strike benefits. A registered c-perative sciety. The Hng Kng Exprt Credit Insurance Crpratin. An authrised institutin under the Banking Ordinance (limited t certain classes f business). The Credit Unin League f Hng Kng.
13 A recgnised clearing huse under the Securities and Futures (Clearing Huses) Ordinance t the extent it guarantees the settlement f securities transactins. The Chief Executive in Cuncil can exempt an insurer frm IA authrisatin (sectin 53, ICO). Insurance agents Authrised insurers and Llyd s names are nt required t be appinted as insurance agents, but this des nt extend t any f their agents. Insurance brkers Authrised insurers and Llyd s names are nt required t be authrised as insurance brkers. A persn wh hlds himself ut in Hng Kng as an insurance brker fr reinsurance cntracts nly is nt required t be authrised as an insurance brker. Hwever, this exemptin des nt apply t: A bdy crprate incrprated in Hng Kng. A bdy crprate incrprated elsewhere which has a place f business in Hng Kng. A persn represented here by an agent r any persn r partnership having a place f business in Hng Kng. 10 Are there any restrictins n the wnership r cntrl f insurancerelated entities in yur jurisdictin (fr example, age, natinality, qualificatin r ther restrictins)? Insurers Hng Kng des nt discriminate against freign cmpanies. There are n restrictins n r qualificatins cncerning wnership r cntrl f an authrised insurer, except that the IA must be satisfied that all its directrs and cntrllers are fit and prper t hld thse psitins (see GN4). There is n natinality requirement, but in determining if the applicant s directrs and cntrllers are fit and prper there are requirements cncerning their qualificatins and experience. Fr example, an insurer s chief executive generally must hld recgnised prfessinal qualificatins. An insurer must als appint a lcally based chief executive as cntrller. Insurance agents
14 Restrictins include age, residency r uncnditinal emplyment visa and qualificatins requirements fr insurance agents wh are individuals, and its respnsible fficers and technical representatives fr crprate agents, but n requirements fr an insurance agent s wners r cntrllers (Minimum Requirements fr Agents). Insurance brkers The psitin is similar t that fr insurance agents. A brker and its chief executive and technical representatives must be fit and prper, and satisfy the Minimum Requirements fr Brkers (see Questin 8) including thse fr age, residency r uncnditinal emplyment visa and qualificatins. 11 D wners r cntrllers have t be pre-apprved by r ntified t the relevant authrities befre taking, increasing r reducing their cntrl r wnership f the entity? Insurers Befre authrising the applicant as an insurer, the IA must be satisfied the applicant s directrs and the cntrllers are fit and prper t hld these psitins (see GN4 fr guidance and IA interpretatin). A cntrller f an authrisatin applicant includes nt nly its directrs and chief executive but als any persn that either (sectin 9, ICO): In accrdance with whse directins r instructins the directrs f the applicant r f a bdy crprate f which it is a subsidiary (r any f them) are accustmed t act. Wh, alne r with any assciate r thrugh a nminee, is entitled t exercise r cntrl the exercise f, 15% r mre f the vting pwer at any general meeting f the applicant r a bdy crprate f which it is a subsidiary. Where there is a change in this type f wner cntrller fr an insurer incrprated in Hng Kng, IA cnsent is required if the new wner cntrller (either alne, r with any assciate, r thrugh its nminee) is entitled t exercise, r cntrl the exercise f, 15% r mre f the vting pwer f that insurer at any general meeting f the insurer. Appinting a managing directr r chief executive f an authrised insurer must invlve prir ntice t the IA. The IA may, within three mnths f ntice, bject t the prpsed appintment because that persn is nt fit and prper t hld that psitin. Unless three mnths has expired withut a ntice f bjectin (r cnfirmatin the IA has n bjectin) n such persn may be appinted, appintment therwise being an ffence.
15 Insurance intermediaries There are varius restrictins set ut in sectin 65 f the ICO n a persn wh is a prprietr r emplyee f, r partner in, an insurance agent r insurance brker being a prprietr, directr r emplyee f, r partner in, anther insurance agent r insurance brker. Insurance agents The IA may nt cnsider a crprate insurance agent fit r prper t act, r t cntinue t act, as an insurance agent if any f its directrs r cntrllers are nt cnsidered fit and prper t act as an insurance agent if they applied as an individual (except fr requirements they are a Hng Kng permanent resident with the necessary qualificatins r experience industry experience and have passed the IIQE). A cntrller under the Agency Cde has the meaning defined in the ICO (sectin 9, ICO). Insurance brkers An insurance brker that is a limited cmpany must satisfy the IA that its chief executive, directrs and cntrllers are fit and prper t hld that psitin (sectin 9, ICO). The Minimum Requirements set ut further guidance n hw the IA applies this test. 12. Please summarise the key nging requirements that the authrised r licensed entity must cmply with. 12 Please summarise the key nging requirements that the authrised r licensed entity must cmply with Insurers The main nging regulatry requirements fr authrised insurers are set ut in Part III f the ICO and are summarised belw. Auditr. An insurer must appint a qualified auditr in the place where the insurer is incrprated and ntify the IA f the identity f, and any change in, that auditr. Bks f accunt and returns. The insurer must maintain prper and legible accunt bks recrding and explaining all the insurer s transactins. The insurer must make all required returns t the IA f accunts, reprts, statements and ther infrmatin required under the ICO. Annual fee. An annual fee is payable t the IA, the amunt depending n the class f business carried ut by the insurer.
16 Maintenance f assets in Hng Kng. General insurers (but nt reinsurers r captives) are, unless exempted by the IA, required t maintain assets in Hng Kng f an amunt and type determined under sectin 25A f the ICO. Further requirements fr insurers carrying n lng-term business. The insurer must: Appint a duly qualified actuary, wh must cmply with the standards specified in the Insurance Cmpanies (Actuaries Standards) Regulatin (r ther standards accepted as cmparable by the IA), and ntify the IA f any change in that actuary Ntify the IA f the arrangements fr the actuary t have direct access t the bard f directrs f the insurer t enable them t carry ut their duties Cmply with bth: Sectin 22 f the ICO fr the cntinued separatin f assets and liabilities attributable t that lng-term business (r, if the lng-term insurer is incrprated utside Hng Kng, and with prir IA authrisatin, attributable nly t that part f its lng-term business carried ut in Hng Kng Sectin 11 f the Slvency Regulatins that nt less than nesixth f the slvency margin is held in its lng term business funds. The Insurers Cde applies t all HKFI members when effecting insurance in Hng Kng fr individual plicyhlders resident in Hng Kng and insured in their private capacity. The main nging requirements relate t: Using plain language in their dcumentatin and ensuring sales materials and illustratins cntain infrmatin which is accurate and easy t understand. Efficient and fair handling f claims. Managing, and handling cmplaints against, their agents. Managing emplyees. Aviding miscnduct. Efficient and fair handling f enquiries, cmplaints and disputes. The principal guidance ntes cntaining nging bligatins are:
17 GN3: preventin f mney laundering. GN8: use f the internet. GN10: crprate gvernance. Insurance agents There are varius nging bligatins fr agents (sectins 71 t 74 (fr general agents) and sectins 75 t 79 (fr life agents), Agency Cde). Agents must always cnduct business in gd faith and with integrity, and cmply with the ther Agency Cde requirements relating t their dealings with, and infrmatin they must prvide t existing and prspective plicyhlders. Insurance brkers Authrised insurance brkers must submit t the IA: Annual audited financial statements. An auditr s reprt n thse financial statements cnfirming the brker cntinues t satisfy the minimum requirements fr capital and net assets, prfessinal indemnity insurance, keeping f separate client accunts and the keeping f prper bks and accunts. Such further evidence the IA may require t demnstrate the brker has cntinued t cmply with the requirements in Questin 8. Cntinuing prfessinal develpment (CPD) requirements Insurance intermediaries and their chief executives, respnsible fficers and technical representatives must cmply with the CPD prgramme requirements under the Insurance Intermediaries Quality Assurance Scheme (IIQAS). The current requirement is t cmplete at least ten CPD hurs annually, generally btained by attending accredited training curses. Failure t cmply is likely t lead t disciplinary actin including de-registratin r de-authrisatin. 13 Please utline the pssible cnsequences f an entity failing t cmply with applicable legal and regulatry requirements (including the disciplinary pwers any relevant regulatrs have, as well pssible custmer remedies) Insurers It is an ffence fr an unauthrised persn t carry n any class f insurance business in r frm Hng Kng (sectin 6(3), ICO). The maximum penalty fr this ffence is a fine f HK$2 millin (abut US$258,000) and an additinal daily fine f
18 HK$2,000 (abut US$258) fr each day during which the ffence cntinues and up t tw years imprisnment. Where an insurance cntract in relatin t any class f insurance business (nt being a reinsurance business) is entered int by an insurer wh is nt authrised t carry n that class f business, that cntract is, at the ptin f the plicyhlder, either: Enfrceable against the insurer by the plicyhlder. Vid by reasn f that cntraventin (in which case the plicyhlder may, befre the expiratin f that cntract, recver frm the insurer any cnsideratin paid by it under the cntract). A large number f ICO requirements include a prvisin that any insurer wh fails t cmply cmmits an ffence and is liable t a fine (and smetimes a daily fine fr each day the ffence cntinues). The IA can intervene in an authrised insurer s business in certain circumstances including if it cnsiders it desirable fr existing r ptential plicyhlders prtectin against the risk the insurer will be unable t meet its liabilities t them, if (Part V, ICO): The insurer has either: Failed t satisfy an ICO bligatin Prvided misleading r inaccurate infrmatin t the IA The IA cnsiders the insurer may be inslvent. This pwer includes the very wide right under sectin 35 f the ICO t require an insurer t take such actin in relatin t its affairs, business r prperty as the IA cnsiders apprpriate, t safeguard existing r ptential plicyhlders interests. Insurance agents It is an ffence fr a persn t hld themselves ut as an insurance agent if they are nt an appinted insurance agent. Penalties range frm a fine f up t HK$1 millin (abut US$129,000) and up t tw years imprisnment n indictment, and up t HK$100,000 (abut US$12,900) and up t six mnths imprisnment n summary cnvictin (sectin 77(1), ICO). The Agency Cde sets ut the pwer f the IARB t: Handle cmplaints. Take disciplinary actin against agents and their respnsible fficers and technical representatives.
19 Require an insurer t take disciplinary actin against its agents. Disciplinary actin may include: Issuing a reprimand. Suspending r terminating the agent s cntract. Requiring the agent t take r refrain frm taking such actin as the IARB thinks fit. The IARB has als issued guidelines n hw it will exercise its pwers under the Agency Cde including Guidelines n Miscnduct and Guidelines n Handling f Premiums. The IA can require an insurer t de-register any f its insurance agents that fail t cmply with the Agency Cde. Insurance brkers It is an ffence fr a persn t hld themselves ut as an insurance brker if they are nt an authrised insurance brker (sectin 77, ICO), carrying the same penalties as the cmparable ffence fr an insurance agent (see abve, Insurance agents). Each apprved bdy f insurance brkers must have prcedures t deal with breaches f prper cnduct by its members. The IA can withdraw a brker s authrisatin if it fails t cmply with the minimum authrisatin requirements (see Questin 8) r this withdrawal is justified in existing r ptential plicyhlders r the public s interests (sectin 75, ICO). The IA can petitin t wind up a crprate brker r bankrupt an individual brker if it cnsiders it in the public interest (sectin 76, ICO). Unauthrised brkers and nn-appinted agents An insurer cannt enter an insurance cntract thrugh an insurance intermediary in Hng Kng r accept insurance business referred t it by an insurance intermediary in Hng Kng if that intermediary is nt an appinted insurance agent r an authrised insurance brker. If an insurer des s, the cntract is vid at the ptin f the plicyhlder, and if the plicyhlder chses t treat the cntract as vid, it is entitled t the return f its premium. ICO breaches There are varius ffences fr insurers r insurance intermediaries wh breach the prvisins f Part X f the ICO (sectin 77, ICO) including:
20 An insurer wh effects an insurance cntract thrugh an insurance intermediary wh is nt an authrised insurance brker r appinted insurance agent cmmits an ffence and is liable t a maximum fine f HK$1 millin and up t tw years imprisnment. An agent (r principal) wh fails t cmply with the Agency Cde may be subject t criminal prsecutin and a fine f up t HK$100,000. An authrised insurance brker wh fails t keep client mnies in separate accunts is liable n cnvictin n indictment t a maximum fine f up t HK$1 millin and up t five years imprisnment. Persnal liability A cntrller, directr, manager r ther fficer f an insurer r insurance intermediary cmmitting an ffence under the ICO cmmits the same ffence if it is cmmitted with the cnsent r cnnivance f, r because f neglect by, that persn (sectin 57, ICO). 14 Are there any restrictins n the persns t whm insurance/reinsurance services and cntracts can be marketed r sld? Bradly speaking, there are n restrictins n the persns in Hng Kng t whm insurance/reinsurance services and cntracts can be marketed r sld. Hwever, the English law limitatins n the cntractual capacity f certain persns, such as minrs and persns suffering frm drunkenness r mental incapacity, apply. Sectin 64B f the ICO requires persns fr whse use r benefit r n whse accunt a life insurance cntract is entered int t have an insurable interest in the life assured at inceptin failing which the plicy will vid. T avid prblems with unscrupulus agents marketing t ptential plicyhlders in Mainland China mst life insurers require prf that the applicant was physically present in Hng Kng when a life plicy was sld t them. Under the MIO, the assured under a marine insurance plicy must als pssess an insurable interest at inceptin. REINSURANCE 15 T what extent can/must a reinsurance cmpany mnitr the claims, settlements and underwriting f the cedant cmpany? There is n implied duty r right implied int a reinsurance cntract fr the cedant t cnsult with r btain the cnsent f the reinsurer befre the cedant settles a claim by the insured. Hwever, the reinsurance cntract usually includes express claims c-peratin and claims cntrl clauses. A claims c-peratin clause usually requires the insurer t ntify the reinsurer f a claim under the underlying insurance, and t cnsult with and c-perate with the reinsurer in settling that claim. It may als require the insurer t btain the
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