Thailand. Insurance Outlook

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1 Thailand Insurance Outlook

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3 3 4 5 Editorial Note Insurance Industry Overview Insurance Business Performance 2012 Overview Life Insurance Sector Non-life Insurance Sector 9 Laws and Regulations Update Draft Amendments to Section 10 of the Life Insurance Act and Section 9 of the Non-Life Insurance Act Draft New Insurance Acts Amended ESOP Notification to Cover Life Insurance Agents Regulations Related to Bancassurance New Regulations for Selling and Issuing Insurance Products Guidelines for Insurance Company and Third-Party Service Provider Arrangements New Draft Law Regulating Insurance Company Receipt and Payment of Monies, Audit Measures, and Internal Control New Royal Decree Waiving Tax on Insurance Premium Reserve upon Amalgamation or Dissolution Requirements on Audit Committee and Independent Directors New Investment Regulations for Insurance Companies 25 Statute of Limitations for Claims between Insurers and Reinsurers South East Insurance v. Ekawit Effect of South East Insurance v. Ekawit Conclusion 27 Statement of Capability

4 Editorial Note Thailand s insurance industry remains one of the fastest growing markets in the region, and one of the fastest changing. Increased market demand, public awareness, and bancassurance have contributed significantly to growth in both the life and non-life insurance sectors over the past year. In response to this growth, the OIC has made efforts to raise the level of the Thai insurance industry to meet international standards and increase good corporate governance through a number of regulations and guidelines. Other significant events have included the conversion of private insurance companies to public companies by February 2013, leading to a potential increase in M&A activity, as well as new OIC regulations increasing foreign shareholding levels for qualified applicants in response to the 2011 flooding. While there are still some uncertainties surrounding the statute of limitations between insurers and reinsurers in regards to the flooding, the Thai insurance industry and economy as a whole remain firm. At Baker & McKenzie Bangkok, our team of insurance law experts is available to provide domestic and international insurance companies, insurance brokers and potential international investors with high quality and timely legal solutions and advice. Our portfolio of insurance services includes the establishment of new operations in Thailand through merger acquisitions or joint venture agreements, regulatory compliance, assisting in the conversion of private insurance companies to public companies, drafting of insurance policies and settlement of claims. Researched and written by our Insurance Practice Group, Insurance Outlook 2013 provides an informative overview of the Thailand insurance sector. From the impact of new regulations to industry performance and trends, this guide encompasses the most salient aspects of the insurance sector, making it a helpful summary of the current state of the market. Sorachon Boonsong (Head of Insurance Practice Group) ext Sivapong Viriyabusaya (Insurance Regulatory/ M&A Practice Group) Ext Chaiporn Supvoranid (Insurance Claims Practice Group) Ext Ampika Kumar (Insurance Regulatory/ M&A Practice Group) Ext Sumet Orsirivikorn (Insurance Regulatory/ M&A Practice Group) Ext Insurance Outlook 2013

5 Insurance Industry Overview Due to market demand and an increase of the public s awareness of the importance of insurance, the insurance industry has been growing constantly during the past year, as will be elaborated upon in the Insurance Business Performance 2012 section below. In response to the growing market, the OIC, as a primary regulator, has initiated a number of regulations and guidelines in the past year in order to raise the industry s governance be more in line with international standards, also applying these standards to other financial institutions under the Financial Institution Act. In terms of distribution channels, it is obvious that bancassurance has contributed significantly to the growth of the market. Most life insurers have either partnered with a commercial bank, or even become a bank s subsidiary, while bancassurance is starting to play a significant role in the non-life sector as well. The performance of insurance companies in 2013 should confirm the importance of the bancassurance distribution channel. The significance of bancassurance was proven in the recent M&A deal in Thailand where Prudential, through its subsidiary Prudential Life Assurance (Thailand) Public Company Limited, sold 100% of its shares in Thanachart Life Assurance Company Limited to Thanachart Bank Public Company Limited; Prudential announced that it had also entered into an agreement to establish a 15-year partnership to jointly develop their bancassurance business in Thailand an important part of the deal. Another M&A deal in the life insurance sector which was completed in the first quarter of 2013 was a share acquisition deal by the Pacific Century Group from the ING Group in ING Life Assurance Public Company Limited. As the draft New Royal Decree, which waives tax on insurance premium reserves upon amalgamation or dissolution, is awaiting being published, it is expected that more M&A deals will continue to occur during the second half of 2013 onwards. Insurance Outlook

6 Insurance Business Performance 2012 Overview Over the past year, Thailand s economy has seen a firm and steady growth. According to the OIC, the insurance industry in Thailand has benefited from the upward economic trend as it posted a record growth in Particularly, the OIC has reported the total direct premium received as of January 2013 at Baht billion, an increase of 24.13% from the previous year. Out of the Baht billion collected, 31.6 billion was collected from the life insurance market, which saw an increase of 21.53% in its own sector. This reflects the growing demand in the market place for life insurance as the insurance market competes in aggressive marketing and sales campaigns. The fierce competition also demands the market to develop new products to respond to the growing market for life insurance. Moreover, the OIC also reported that the non-life insurance market also saw substantial growth as reflected from the 29.20% increase in premiums collected when compared to the previous year. Importantly, for the first time in decades, the non-life insurance market saw an increased growth which surpassed that of the life insurance market. This could be the result of the growing public awareness for the need of property and casualty insurance as experienced from the major flooding in 2011, afterwhich many uninsured motorists and homeowners were left with large sums in damages to their property. Life Insurance Sector According to the OIC s statistical report as of the end of 2012, AIA remains at the top of the list in terms of market share based on the total direct premiums received, followed by Thai Life Insurance, Muang Thai Life, Siam Commercial Life, and Bangkok Life respectively. The significant shift in market share came from Siam Commercial Life which was ranked fourth, while Bangkok Life dropped to the fifth position. In addition, Group insurance also saw a significant shift in market share; particularly, Siam Commercial Life moved into second place, while Muang Thai Life dropped to third. 6 Insurance Outlook 2013

7 The overall positive economic landscape in Thailand supplemented the insurance business performance as reflected in a significant growth in the life insurance companies. The growth of the life insurance business in 2012 in terms of gross direct premiums received saw an increase of 18.67% from the previous year. The number of policies also increased from 19,489,205 units in 2011 to 21,007,036 units in 2012, which is approximately a 7.79% growth from the previous year. The total sum insured in 2012 also increased from 2011 by around 34.6%. Type of Insurance Direct Premiums (Unit : 1,000 THB) Increase/ (Decrease) 1 Ordinary 326,859, ,318,400 49,541,277 2 Industrial 8,291,922 8,534,643 (242,721) 3 Group 43,976,624 33,330,237 10,646,387 Total 379,128, ,183,280 59,944,943 4 Personal Accident 5,061,809 4,574, ,883 Grand Total 384,190, ,758,206 60,431,826 Type of Insurance Number of Policies (Unit : Policies) Increase/ (Decrease) 1 Ordinary 16,912,033 15,367,499 1,544,534 2 Industrial 1,928,637 2,067,310 (138,673) 3 Group 32,887 27,931 4,956 Total 18,873,557 17,462,740 1,410,817 4 Personal Accident 2,133,479 2,026, ,014 Grand Total 21,007,036 19,489,205 1,517,831 Type of Insurance Sum Insured (Unit : 1,000 THB) Increase/ (Decrease) 1 Ordinary 3,866,507,496 3,379,132, ,374,942 2 Industrial 122,323, ,810,882 (3,487,412) 3 Group 4,922,767,676 3,821,116,621 1,101,651,055 Total 8,911,598,642 7,326,060,057 1,585,538,585 4 Personal Accident 2,843,278,936 1,407,219,127 1,436,059,809 Grand Total 11,754,877,578 8,733,279,184 3,021,598,394 Insurance Outlook

8 Non-life Insurance Sector There were significant shifts in the rankings in terms of market share based on total direct premiums received. Muang Thai Insurance dropped from fifth position in 2011 to seventh in 2012, and Safety Insurance moved up from sixth position in 2011 to fifth in In addition, Tokio Marine Insurance swelled from ninth in 2011 to sixth in The top four non-life insurance companies maintained the same standings in 2011: Viriyah Insurance, Dhipaya Insurance, Bangkok Insurance, and Synmunkong Insurance. Dhipaya Insurance outsold Bangkok Insurance and took first place in the fire insurance policies, followed by Bangkok Insurance, Muang Thai Insurance, the Southeast Insurance and Siam Commercial Samaggi. For marine and transportation insurance policy, the top two remained as Tokio Marine Insurance and Mitsui Sumitomo Insurance. In this sector, Dhipaya Insurance moved up from fifth in 2011 to third in 2012, while Bangkok Insurance dropped from third in 2011 to sixth in Viriyah Insurance and Synmunkong Insurance remain first and second in the automobile insurance sector, followed by the Safety Insurance, Bangkok Insurance, and Thanachart Insurance. For the miscellaneous insurance sector, the top five is still Dhipaya Insurance, Bangkok Insurance, ACE INA Overseas, Muang Thai Insurance, and Mitsui Sumitomo Insurance. The number of policies issued increased from 41,829,213 policies in 2011 to 47,858,634 policies in In addition, the amount of the sum insured and the amount of the total direct premium collected in every sector of Non-Life insurance grew significantly from Even though the Industrial All-Risk Insurance sector saw a decline in policy issuance, the sector saw a significant increase in direct premium from Baht billion in 2011, to Baht 21 billion in More significantly, the automobile insurance sector saw an immense growth in market share in the Non- Life insurance business with growth from 5.72% in 2011 to 11.99% in The growth is largely due to the Government s first car subsidy policy launched in the fourth quarter of 2011 and was effective through December 31, The growth in the automobile sector as a result of the First Car Policy is expected to become even more significant in 2013 as the new cars reserved in 2012 are scheduled for delivery in Insurance Outlook 2013

9 Type of Insurance Number of Policies (Unit : Policies) Increase/ (Decrease) 1 Fire 2,876,608 2,649, ,757 2 Marine & Transportation 825, ,653 60,769 3 Automobile 32,418,024 28,948,069 3,469,955 4 Miscellaneous 11,738,580 9,466,640 2,271, Industrial All Risks 243, ,136 (253,961) 4.2 Personal Accident 8,654,478 7,359,146 1,295, Health Insurance 811, ,909 9,941 Total 47,858,634 41,829,213 6,029,421 Type of Insurance Direct Premiums (Unit : 1,000 THB) Increase/ (Decrease) 1 Fire 9,759,195 7,739,632 2,019,564 2 Marine & Transportation 5,189,762 4,409, ,587 3 Automobile 103,903,806 82,771,504 21,132,302 4 Miscellaneous 60,606,242 43,839,721 16,766, Industrial All Risks 21,047,279 12,277,122 8,770, Personal Accident 20,520,003 15,747,383 4,772, Health Insurance 5,795,676 5,079, ,459 Total 179,459, ,760,032 40,698,974 Type of Insurance Sum Insured (Unit : 1,000 THB) Increase/ (Decrease) 1 Fire 6,118,482,794 5,230,844, ,637,918 2 Marine & Transportation 12,171,787,342 9,390,153,230 2,781,634,113 3 Automobile 5,223,448,518 4,032,543,023 1,190,905,495 4 Miscellaneous 85,833,193,807 51,811,723,045 34,021,470, Industrial All Risks 15,479,129,186 14,128,766,181 1,350,363, Personal Accident 61,276,688,353 27,281,308,655 33,995,379,699 Total 109,346,912,462 70,465,264,174 38,881,648,288 Insurance Outlook

10 Laws and Regulations Update A significant number of draft legal initiatives have been proposed during last year until the first quarter of Although they have not been approved to date, they are now awaiting approval from the OIC. Below is our brief summary of each draft regulation still under consideration and expected to come into force in the near future. Draft Amendments to Section 10 of the Life Insurance Act and Section 9 of the Non-Life Insurance Act Background The amendments to the Life Insurance Act B.E and to the Non-Life Insurance Act B.E came into effect in February The amendments quickly proved controversial among insurance companies and investors alike, introducing a definition of Thai shareholder in insurance companies that requires shareholding participation of Thai individuals or non-registered ordinary partnerships in which all partners are Thai nationals. Numerous insurance companies have found it challenging to conform to these requirements, especially listed insurance companies or those with listed companies as shareholders. Current Status In response to the industry s concerns, Draft Amendments, prepared with the assistance of the OIC, are currently pending consideration and approval in Parliament. The Draft Amendments will revise the definition of Thai Shareholder, as stipulated in the 2008 amendments, and institute the following new shareholding requirements: the company (insurance company) must have persons of Thai nationality holding shares not less than 75% of the total shares sold, whereby the said amount of shares must have voting power of not less than 75% of the total voting power. This means the participation of Thai individuals or non-registered ordinary partnerships in which all partners are Thai nationals is no longer required. Further, the Draft Amendments will provide the Minister of Finance with greater authority to issue special permission to insurance companies wishing to increase their foreign shareholding ratio. The 2008 amendments only allow the Minister of Finance to authorize a foreign shareholding level above 49% if the company s standing or operations are in a condition that threatens to cause damage to the insured or the public. Under the Draft Amendments, the Minister may issue special permission for an increase in foreign shareholding if: 1) the increased foreign shareholding is necessary to maintain business operations; 2) the increased foreign shareholding would improve the financial stability of the insurance company; or 3) the increased foreign shareholding would increase stability in the insurance industry. Draft New Insurance Acts On Saturday, 30 June 2012, the OIC held a public hearing on the draft Life and Non-Life Insurance acts ( the Draft Acts ), which will replace existing acts of the same name. Despite recent revision of the same acts in early 2008, judging from the drafts distributed at this session, the industry will likely be facing more significant changes in legislation. The hearing was led by the OIC, together with a designated Council of State representative, who is the primary architect of the revised acts. Baker & McKenzie joined the panel discussion as a representative of the private sector. The Council of State representative explained that the central motivation for overhauling Thai insurance laws is to raise standards within the insurance industry and thereby meet international standards, including those of financial institutions. For this reason, the Draft Acts have adopted numerous concepts from the Financial Institution Act B.E (2008) ( FIBA ). A sample of key proposed changes includes: 10 Insurance Outlook 2013

11 Approval Required for Major Shareholders a shareholder(s) who holds at least 10% of an insurance company must obtain approval from the OIC. Appointment of Directors, Persons Authorized to Manage the Company, and Consultants the appointment of directors or authorized persons (e.g. manager, assistant to manager, directors who are executives or persons in equivalent positions, and consultants) must first obtain approval from the OIC. Definition of Parent Company, Affiliates, Associated Companies, and Related Persons the definitions are provided in order to specify the types of transactions which can be undertaken between the insurance company and these persons. Moreover, an insurance company is not allowed to establish affiliates unless approval is obtained from the OIC. Representative Office foreign insurers are allowed to establish representative offices in Thailand and Thai insurers are allowed to establish representative offices outside Thailand, upon receiving approval from the OIC. Foreign Shareholding Limit foreign shareholding is limited to less than 25%. The foreign shareholding limit can be increased up to 49% with approval from the OIC and can be increased above 49% with approval from the Ministry of Finance and the OIC. The definition of Thai under the previous Insurance Acts has been removed. Reporting on the Acquisition of Every 5% of Shares any person holding or acquiring 5% or more of shares in an insurance company, either directly or indirectly, must report it to the OIC. Insurance Business Group introduces the concept of Insurance Business Group (similar to Financial Business Group). Insurance Policy in general, insurance policies and all their riders must be certified by an actuary prior to issuance, except in the case of certain policies which may require the approval of the OIC before issuance. Insurance Agents and Brokers - the Draft Acts introduce the concept of corporate agents in reference to brokerage. Under the Acts, individuals will no longer be allowed to act as insurance brokers, only corporations may do so. Additionally, within an insurance broker company, there must be so-called insurance agents that conduct the sale of insurance products. The Council of State and the OIC will take all suggestions from the hearing into consideration in order to improve the Draft Acts. Another public hearing will be held before their enactment, which is expected in Insurance Outlook

12 Amended ESOP Notification to Cover Life Insurance Agents On 20 June 2012, the Capital Market Supervisory Board (CMSB) issued two notifications revising the definition of employee under regulations governing new securities offerings to company directors or employees. The new definition now includes life insurance agents, making them eligible to receive securities through an Employee Stock Ownership Plan (ESOP). The notifications take effect on 1 July The CMSB, under the Securities and Exchange Commission (SEC), also stipulated certain requirements in the two notifications. Background An ESOP is widely used by public companies to reward employees, as well as encourage a tangible investment in the company s financial success. However, under previous ESOP regulations, only employees and directors of the issuing company are eligible to receive an ESOP; however, agents in certain businesses, such as insurance, while crucial to the business model, have up until now been restricted from receiving them. Relevant legislation Notification 1: TorChor. 29/2555 on the Offer for Sale of Newly Issued Securities to Directors and Employees (No. 2) (the Amended ESOP Notification ) Notification 2: TorChor. 30/2555 on Offer for Sale of Securities Issued by Foreign Company to Directors or Employees of Foreign Company or Conglomerate in Thailand (No. 2) (the Amended Offshore ESOP Notification ). An ESOP provides life insurance companies with a useful alternative for rewarding employees, directors, and now, life insurance agents. Regulations Related to Bancassurance In recent years, bancassurance has become an increasingly significant distribution channel for insurance sales in Thailand. As a result of its growing sales volume, there were discussions on a new regulatory regime to be implemented on the bancassurance channel. Guidelines Governing the Sale of Insurance Products through Commercial Banks The Bank of Thailand issued new guidelines governing the sale of security and insurance products through commercial banks (the Guidelines ) which took effect on 1 January The Guidelines have been considered and agreed upon by each of the three responsible regulatory bodies: the Bank of Thailand, the SEC, and the OIC. The Guidelines are intended to standardize the sale of security and insurance products by taking into account consumers right to: (i) be informed, (ii) choose, (iii) be heard; and (iv) redress. The Guidelines include the following key procedures and conditions: (1) Product Offering - Banks must clearly differentiate the sale of insurance and securities products from their core products, e.g. the insurance and securities products involve a greater risk, such as no principal protection, compared to core products. - Banks must disclose details of insurance and securities products to customers, including any benefits consumers will be entitled to receive or risks associated with the products. - Banks may cross-sell core products together with insurance and securities products, but they may not force customers to buy insurance or securities products or set any preconditions for the provision of other services (e.g. requiring a customer to buy an insurance product from a specific insurance company in order to obtain a loan). Customers must have the right to reject the purchase of insurance and securities products. 12 Insurance Outlook 2013

13 - Engaging in the lottery business or lucky draw business is prohibited. However, banks may grant discounts or giveaways within the scope permitted by relevant governing authorities. - The content of marketing materials must not be exaggerated or misleading to customers. - The sale of insurance or securities products must be conducted within the proper time or the proper period prescribed by the relevant governing authorities. - Banks must maintain a donot-call list or have other similar methods of consumer protection. - Sales representatives must be licensed in accordance with relevant regulations. Banks must ensure that customers can examine that such person is an authorized sales representative. - Banks must ensure that sales representatives have sufficient knowledge of the insurance or securities product being sold and be able to provide customers with extensive information on the products. - Banks must separate their sales counter from their deposit-withdrawal counter and post clear signage indicating this distinction. (2) After-Sale Service and Handling of Complaints - After-sale services must be provided to customers. In cases where it can be proven a sale has not been conducted in accordance with the Guidelines, whether by intent or negligence, the bank must compensate the injured customer. - A suitable location, process, and designated officer for the handling of complaints must be in place at each point of sale. Handling of complaints may be conducted by a licensed sales person, provided that the process and evidence is clearly explained and provided to the customer. The designated complaint handler must be independent from the sales representatives. (3) Others - A support system for the sale of products must be established to measure and monitor sales compliance. Insurance Outlook

14 - Banks should establish a plan for addressing customer enquiries in relation to the Products (e.g. a call center). - Banks must keep all customer data confidential and may not make any disclosure to any other persons, including the bank s financial group, unless prior written consent from the customer is obtained. The Bank of Thailand will use the Guidelines as the measurement of the banks compliance when they receive consumer complaints. Thus, all banks should ensure that all requirements are complied with fully. In addition, complying with the guidelines will not only raise a bank s good governance standards, but may also maintain or even improve a banks reputation. Discussion on Possibilities of Restricting Exclusive Bancassurance Arrangement and Other Issues There was a discussion of new bancassurance regulations which took place among representatives from the three relevant authorities: the Bank of Thailand, the OIC, and the SEC. While the new regulations will naturally aim to strengthen compliance within this growing sector, it could also discourage banks from selling insurance products altogether. The Thai Association of Insurance and Financial Advisors recently proposed ten concepts to guide the drafting of such regulations. The key aspects of the proposal are: (1) Bancassurance counters in banks should be operated separately from standard bank counters (e.g. those dealing with deposits/ withdrawals); (2) Banks should only be able to sell short-term endowment products. Long-term endowment products (greater than 10 years) should not be allowed to be sold through bancassurance; (3) Banks should only be allowed to sell life insurance products over-thecounter; (4) Only licensed insurance brokerage staff at banks should be able to sell life insurance products; (5) More stringent regulations should be imposed on marketing and promotion related to gifts/giveaways/incentives; (6) Banks should be prohibited from offering endowment products to clients applying for credit/loans; (7) Penalties should be instituted against licensed insurance brokers who allow non-licensed staff to use their broker licenses; (8) Penalties should be instituted against banks that use credit or loans as a negotiation tool to persuade clients to buy life insurance products; 14 Insurance Outlook 2013

15 (9) The insurer s name should be required to appear on any offer letter issued to the customer and should not be smaller than the bank s name; and (10) Banks should be required to offer life insurance products from at least three different insurers, the sale volume of each being at least five percent. It is unclear at this stage whether any of the above concepts will be adopted by the relevant authorities. The OIC has made clear it thinks the concepts merit analysis and further discussion. New Regulations for Selling and Issuing Insurance Products The OIC is considering new requirements governing the issuance process and sale of insurance products by life and non-life insurance companies, insurance agents, and insurance brokers, including bancassurance. Rationale The OIC aims to improve the practices of Thailand s insurance industry so as to conform with the Insurance Core Principles (ICP), as written by the International Association of Insurance Supervisors (IAIS) as well as the Bank of Thailand draft policy on the sale of securities and insurance products by bank channels, which was opened to public comment on 9 July Key Points (1) Principles for Sale Operation Employees of insurance companies, agents, and brokers should carry out their duties with integrity, competence, and good judgment and should: - disclose information regarding the insurance policy itself, the commission amount they earn, as well as the relations between insurance companies, agents/brokers, and customers; - handle their customers payments with care; - carry out customer due diligence and all other processes in a spirit of fairness with regard to their customers; - propose suitable products to customers. (2) Pre-Sale - Sales persons must have either an insurance agent license or insurance broker license; - The sales counter must be clearly identifiable with either a plaque or symbol; - It must be clearly explained that the insurance products sold are not savings accounts; and - Marketing must not be exaggerated and must not mislead consumers. Insurance Outlook

16 (3) Point of Sale - Sales persons must issue a fact sheet detailing key benefits to the consumer, including the annual percentage rate (APR) or internal rate of return (IRR) and the customer must acknowledge these facts by certifying the fact sheet; - Insurance products that are calculated using the APR or IRR must use proper assumptions in accordance with global standards for such calculations; - Sales persons must disclose their commissions; - Sales persons must run suitability tests regarding customer due diligence and propose suitable insurance policies to the customers; and - No discount or rewards promotion may be offered. (4) Do-Not-Call List Life and non-life insurance companies, agents, and brokers that sell insurance products by way of telemarketing should compile a Do-Not- Call List within a certain timeframe. If they do not, they will be prohibited from conducting the sale of insurance products through telemarketing. Guidelines for Insurance Company and Third-Party Service Provider Arrangements The OIC is considering new guidelines that would permit insurance companies to authorize third parties to pay out compensation on their behalf. Background Payment of compensation is an essential part of the insurance business and should ideally be handled by the insurance company itself. However, in order to reduce insurance business operational costs and increase service-provider efficiency, the OIC recognizes that insurance companies may engage third-party medical professionals to provide initial opinions on compensation claims for accident and health insurance. After the insurance company reviews compensation considerations, it may assign such service provider to pay compensation on its behalf. In this regard, the insurance company is prohibited from setting aside a financial reserve for the provider. Key Points (1) Roles, duties, and responsibilities of insurance company directors and high-level executives Insurance company directors and high-level executives should institute clearly specified guidelines for the use of third-party providers in writing, ensure compliance with the guidelines, and periodically review the efficiency and appropriateness of these guidelines. 16 Insurance Outlook 2013

17 (2) Selection of third-party service provider Insurance companies should specify reasonable criteria for selection of third-party service providers prior to executing a new third-party agreement or reviewing an existing agreement. (3) Responsibility for clients When using a third-party service provider, an insurance company retains responsibility for its clients as though the company itself was providing the service. Therefore, the insurance company should ensure its third-party providers can reasonably take care of clients. This includes having a security and confidentiality system in place for client and insurance company data, as well as a suitable system for handling claims. (4) Business continuity The insurance company should ensure its third-party service providers prepare and regularly update a business continuity plan and procure sufficient resources to operate during periods of risk. (5) Contract and agreement Insurance companies should execute a contract and agreement with third-party service providers, specifying the details of service, scope of responsibilities, a risk management plan, security systems, business continuity plan, data management plan, schedule of service charges, conditions for subcontracting, and the right of the OIC to examine third-party operations and internal control processes. (6) Monitoring & evaluating management risks Insurance companies should create internal risk management guidelines, in writing, for use of third party services, particularly for those services critical to the operation of the business. Guidelines should be differentiated based on the importance of the business unit and consistent with the overall risk management strategy. The insurance company should publicize such guidelines internally so relevant employees understand and strictly comply with them. (7) Use of third-party service providers abroad Insurance companies may only use third-party providers located outside Thailand for policies that provide coverage outside Thailand. Insurance companies should consider the risks associated with operation in another country, including the domestic politics and laws of each country, as well as related international policy, and prepare a guideline for monitoring risks if deemed necessary. Insurance Outlook

18 (8) Examination and report to the OIC Since the use of third-party services may affect both the insurance company and its clients, aside from closely monitoring the provider, insurance companies should facilitate the OIC or other relevant government agencies in examining and supervising the service provider or sub-contractor (if any). (9) Power of order or revocation After approval is given, if the OIC finds the insurance company fails to comply with the guidelines specified by the OIC does not adhere to specific guidance provided by the OIC upon application, or acts in a manner that may cause damage to the insurance company, its clients, or the public, the OIC will request the insurance company to substantiate its actions. After consideration, the OIC may revise the guidelines or conditions that apply to the insurance company or revoke its approval of the third-party arrangement. New Draft Law Regulating Insurance Company Receipt and Payment of Monies, Audit Measures, and Internal Control The OIC has announced the implementation of new regulations that aim to encourage good corporate governance, internal control, risk management, and accountability practice measures within insurance companies (both life and non-life), bringing Thailand s insurance industry s standards and practices in line with the those of the International Association Insurance Supervisor (IAIS). Rationale Effective internal control is essential for good corporate governance of insurance companies and is the key to protecting a company from incurring capricious damages. Measures of internal control include the methods of receiving and paying monies, auditing, and legal compliance. An insurance company s board of directors has an obligation to ensure that the company segregates the roles and responsibilities of staff at each level of the company and arranges human resources as well as information technology systems to suit the company s business and operations. Receipt and Payment of Monies Insurance companies must arrange procedures and systems for receipt and payment of monies to ensure that an appropriate degree of financial control and accuracy is maintained. Insurance companies must also implement a back-up system (in the case of electronic filing), and maintain relevant documents and information in relation to the receipt or payment of monies for a minimum period of five (5) years from the date the money was paid out or received. 18 Insurance Outlook 2013

19 The draft law requires that the position descriptions and responsibilities of accountants, auditors, front and back office staff, and other authorized persons, be clearly defined and permit no overlapping duties. The regulation will allow for a process of checks and balances among these employees. Under the new law, submission of a report to the OIC detailing the company s process for receipt and payment of fees will also be mandatory. Audit Committee Insurance companies will be required to set up an audit committee comprising at least three members. Committee members must have qualifications as prescribed by the OIC and at least two-thirds must be independent directors. The term of an audit committee member should not be more than four years. The key responsibilities of the audit committee include: (1) examining the financial statements of the company for accuracy; (2) examining and evaluating the internal control measures, audit measures, and overall risk management system of the company; (3) examining the operations of the company to ensure they are in compliance with laws and internal policies; (4) considering and nominating an auditor of the company; (5) providing suggestions to the management of the company and reporting to the board of directors if it finds any conflicts of interest, fraud, or irregularities in the internal control system, or any other breach of regulations; and (6) preparing an audit report for the board of directors of the company. Internal Control Insurance companies will be required to maintain appropriate internal controls on their business operations in order to ensure the effectiveness of their risk management systems, the reliability of their financial reporting, and compliance with laws and regulations. Internal control should minimally cover the following: (1) acceptance of insured; (2) arrangement of compensation; (3) reinsurance matters; (4) policy development; (5) insurance premiums; (6) investments of the company; and (7) receipt and payment of monies. Insurance Outlook

20 In addition, insurance companies will be required to have a compliance team which is independent and under the direct supervision of the board of directors or an audit committee. New Royal Decree Waiving Tax on Insurance Premium Reserve upon Amalgamation or Dissolution Background Currently, under Section 65 Ter (1) (a) and (b) of the Revenue Code, a reserve from insurance premiums may be accounted as a deductible expense in the calculation of taxable profits. Additionally, Sections 74 (2) and (3) of the Revenue Code stipulate that in the event that (i) an insurance company is dissolved or (ii) two insurance companies are amalgamated and a new insurance company is formed, the part of the accrued insurance premium reserve that has not paid tax must be realized as taxable income in the final accounting period when dissolved or amalgamated. The same treatment is applied to an acquired insurance company that transfers all assets and liabilities to the acquiring insurance company and dissolves in the same financial year under the Entire Business Transfer (EBT) scheme. The Revenue Code Sections 74 (2) and (3) have been some of the obstacles for insurance M&A transactions in the past. Current Status On 8 January 2013, the cabinet approved a draft proposal to make an exception to Sections 74 (2) and (3) with respect to the amalgamation or the EBT of insurance companies. The proposal grants tax reliefs to amalgamating companies in an amalgamation transaction or an acquired company in an EBT transaction, such that they are not required to realize that part of the accrued insurance premium reserve which has not paid tax as taxable income in the financial year of the amalgamation or EBT. Further, the new company formed by amalgamation, or the acquiring company in an EBT, may not use an accrued insurance premium reserve that has not paid tax as a deductible expense. Enactment of the draft proposal will promote M&A transactions in the insurance industry. Insurance companies will enjoy tax incentives when they amalgamate or are dissolved following an EBT. This will relieve the insurance companies from cash-flow burden. Following Cabinet approval on 8 January 2013, the draft proposal will undergo a review by the Council of State before being proposed to Parliament. 20 Insurance Outlook 2013

21 Requirements on Audit Committee and Independent Directors Since all insurance companies were required to convert themselves into public companies limited by 5 February 2013, the OIC has also announced new regulations that aim to encourage good corporate governance, internal control, risk management, and accountability within insurance companies, including the establishment of an audit committee (the Draft Regulation ). Below, is a summary on the establishment of an audit committee and the qualifications of its members. Background In 2006, the OIC issued good corporate governance guidelines (the Guidelines ) specifically for insurance companies conducting business in Thailand. The Guidelines were issued to strengthen the overall stability of the industry and encourage healthy competition amongst insurance companies. The Guideline recommends the establishment of an Internal Audit Committee within insurance companies. However, as this is only a suggestion from the OIC, it is not legally enforceable. The Audit Committee Under the Draft Regulation, insurance companies will be required to establish an internal audit committee ( AC ) to report on the efficiency of the company s management, operations, risk management and internal controls. The AC must be appointed by the Board of Directors of the company, or with approval of the shareholders, and be comprised of at least three members, commensurate to the size, type, and complexity of the insurance company. The AC and its individual members must meet the following criteria: (1) At least 2/3 of the AC members must be Independent Directors; (2) Each AC member must possess sufficient knowledge and experience to conduct his or her duties and at least one member must possess adequate knowledge and experience in accounting or financial services to sufficiently conduct his or her duties as a credible auditor; (3) AC members must never have been deemed incompetent under the law or a judicial proceeding involving an insurance business or other related businesses; Insurance Outlook

22 (4) AC Members must never have been convicted for fraud, dishonesty, embezzlement, or misappropriation of property; and (5) There must be no reason to suspect that an AC member has ever committed a wrongful act in the course of dealing with the insured, beneficiaries, insurers, or shareholders. The Independent Directors Key qualifications of Independent Directors under the Draft Regulation are: (1) Holds no more than 1% of the voting shares of the company, the company s subsidiaries, or affiliated companies, major shareholders, or other controlling parties; (2) Has not held a position as an employee, fixed-salary consultant, controlling party, or board member that engaged in a management capacity of an insurance company, the insurance company s subsidiaries or affiliated companies, major shareholders, or other controlling parties, unless the position ended at least two years prior; (3) Not a person of blood relation or recognized by law to be a legal guardian of, married to, a sibling of, or child of any person in management, a major shareholder, controlling party, or person offered to take a management position, or any other person possessing power to control the insurance company, its subsidiaries, or affiliated companies; (4) Does not have an existing or previous business relationship with the company, the company s subsidiaries, or affiliated companies; (5) Has never held, and is not currently holding, a position as an auditor of the company, the company s subsidiaries or its affiliates, major shareholders, or controlling parties; (6) Has not been, and is not currently, a significant shareholder, controlling party, or partner of an auditing firm that audits the company, the company s subsidiaries or its affiliates, major shareholders, or any persons possessing power to control the insurance company, unless the position ended at least two years prior; (7) Has not worked, and is not currently working, as a professional service provider (including as a legal consultant or financial advisor) earning more than two million baht per year providing services to the company, the company s subsidiaries or affiliated companies, major shareholders, or controlling parties and is not a significant shareholder, controlling party or partner of the service provider, unless such capacity ended at least two years prior; (8) Has never acted as a director appointed to be a representative of the company, the major shareholder, or a shareholder who is connected to the major shareholder; 22 Insurance Outlook 2013

23 (9) Has never engaged in a similar or competitor business of the company or its subsidiaries; has never been a significant partner or board member acting in a management capacity, an employee, a fixed-salary consultant, or a shareholder of a similar or competitor business of the company; and (10) Does not possess any other characteristics that could hinder the provision of independent opinions in regards to the company s operation. It is important for insurance companies to recognize the stringent qualifications of members of the AC as mandated by the Draft Regulation, which is expected to go into effect around July New Investment Regulations for Insurance Companies Current Investment Regulation The current regulation governing the investments of insurance companies is the Notifications of the Ministry of Commerce re: the Operation of Other Businesses by Life/Non-Life Insurance Companies B.E. 2547, which was first enacted in 2004, and its amendments which includes the Notification of the Office of Insurance Commission re: the Investment in Other Businesses by Life/Non-Life Insurance Companies B.E (collectively called the Current Investment Regulations ). Recently, the OIC has announced, for public comments, the Draft Notification re: Investment in Other Businesses by Life/Non-life Insurance Companies (the Draft New Investment Regulations ) which will repeal and replace the Current Investment Regulations. Rationale of Change According to the principle and framework published by the OIC, the Draft New Investment Regulations were drafted with the intention to: align the investment activities of insurance companies with Risk- Based Supervision (RBS) method; categorize investment activities based on risk, liquidity and flexibility of investment; implement Good Governance and Fit and Proper principles; and align Principle-based investment with Rule-based investment. The Key Changes In order to achieve the intention mentioned above, the Draft New Investment Regulations have introduced significant changes to the management of investment of insurance companies, as follows: (1) Duties of Directors The Draft New Investment Regulations require the Board of Directors of the insurance companies to be responsible for the approval of investment policy and risk management policy associated with the investment. The Board of Directors shall also be responsible to monitor that the investments comply with the policy and related regulations. Insurance Outlook

24 Moreover, the Board of Directors must appoint at least three members from the Board of Directors or the management as the Investment Committee. (2) Investment Committee As mentioned above, the Board of Directors must appoint an Investment Committee consisting of at least three persons with the following qualifications: being at the director or management level of a company; and being a person with expertise and experience of not less than three years on investment management, risk management or securities analysis. Amongst other duties, the Investment Committee must prepare the company s investment policy for the Board of Directors approval and approve the company s investment plan according to the investment policy, which includes, limits for the allocations of assets, policy on the selection of individual securities, etc. a. Investment Guidelines and Policies Insurance companies are required to prepare a written Investment Policy, Investment Plan, Risk Management Plan, and Investment Manual and submit the same to the OIC on a yearly basis. b. Investment Unit Insurance Companies are required to set up an Investment Unit with sufficient resources, information and a system which corresponds with the level of complications of investment of the company. The Investment Unit shall report to the Investment Committee. The Draft New Investment Regulations also stipulate the qualifications of the persons who are responsible for the investment of the company. c. Permitted Investments and Conditions While the Draft New Investment Regulations do not impose many changes in permitted categories of investments, the revisions of the conditions of investment in each permitted category is quite significant. Hence, once the Draft New Investment Regulations become effective, it will be important to revisit the conditions before making further investments. 24 Insurance Outlook 2013

25 Overall, the proposed changes strike a good balance between investment activities and internal control. With this new investment regime introduced, insurers who want to maintain their compliancy status should recognize the more stringent requirements in the Draft New Investment Regulations, which are expected to go into effect by June Insurers who want to stay on top of the game should also revisit their investment policies and compliancy procedures to ensure that all general requirements prescribed in the Draft New Investment Regulations are in place. Insurance Outlook

26 Statute of Limitations for Claims between Insurers and Reinsurers Until recent complications relating to claims on loss from the Bangkok Unrest and the volume of the 2011 Flood claims, it had been the longestablished, customary practice in the reinsurance industry for a reinsurer to honor claims adjusted or reviewed by an insurer. Now, there are growing concerns among insurers regarding the application of the statute of limitations if an insurer has no other choice but to initiate legal action against a reinsurer, such as establishing the statute of limitations on the claim and how insurers can protect their legal position if the statute of limitations is 2 years from the time of loss. One Supreme Court case touches on these issues. South East Insurance v. Ekawit The most frequently cited landmark case on the application of the statute of limitations in insurance disputes is Supreme Court Judgment no. 8292/2538 between South East Insurance and Ekawit Co., Ltd. In this case, South East Insurance, the insurer, initiated an action against Ekawit, the reinsurance broker. South East Insurance based its case against Ekkawit on Section 824 of the Civil and Commercial Code ( CCC ) 1, asserting that an agent (Ekkawit) who executes a contract (reinsurance policy) for a principal who is outside Thailand (the foreign reinsurer), is personally liable under the reinsurance policy. In this case, the Supreme Court ruled that making the payment for the claim to the insured and intiating the case and reinsurance policy by South East Insurance, were types of insurance against loss, or the general insurance policy. Therefore, the statute of limitations is 2 years from the date of loss according to Section 882 of the CCC 2 ; since South East filed the complaint after the expiration of the 2-year prescription period, this claim was barred. 1 Section 824 of CCC: An agent who makes a contract on behalf of a principal who is, and has his domicile, in a foreign country is personally liable on the contract although the name of the principal has been disclosed, unless the terms of the contract are inconsistent with his liability. 2 Section 882 of CCC: No action for payment of compensation can be entered later than two years after the date of loss. 26 Insurance Outlook 2013