Insurance in the British Virgin Islands

Transcription

1 Insurance in the British Virgin Islands JUNE 2013 For more briefings visit mourantozannes.com This briefing is only intended to give a summary and general overview of the subject matter. It is not intended to be comprehensive and does not constitute, and should not be taken to be, legal advice. If you would like legal advice or further information on any issue raised by this briefing, please contact one of your usual Mourant Ozannes contacts. Contacts: Simon Lawrenson Partner, BVI Based in the Hong Kong office Bronwyn King BVI Based in the Hong Kong office Michael Williams Partner, BVI Rachael McDonald Partner, BVI For contact details, please see the end of this briefing. This briefing was published by Thomson Reuters on 25 June Introduction 1.1. The British Virgin Islands (BVI) regulator, the Financial Services Commission (the Commission), recently reported that there are over entities licensed to carry on insurance business in or from within the BVI. Of these, 157 are captive licensees. The captive insurance industry is supported by over 40 insurance functionaries 2 on the ground in the BVI (including insurance agents, brokers, managers and loss adjusters) and nearly 500 banking and fiduciary service providers 3, making the BVI a leading jurisdiction in the captive insurance market The BVI overhauled its insurance laws at the beginning of The purpose of the overhaul was to modernize the regulatory framework to ensure that the jurisdiction continued to meet the core principles of the international insurance regulatory community including the International Association of Insurance Supervisors (IAIS) and the Offshore Group of Insurance Supervisors, whilst delivering a flexible and relevant "risk-based" licensing regime The main legislation for the insurance market in the BVI is: Financial Services Commission Act, 2001; Insurance Act, 2008 (Act); Insurance Regulations, 2009 (Regulations); and Regulatory Code, 2009 (Code). 2. Insurance Business and Classification of Licences 2.1. The Act defines insurance business as being "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 upon the happening of a specified event, and includes life insurance and reinsurance business." 4 All insurance business is licensed in the BVI (with the exception of an exempted category of businesses, as discussed below under Licensing Exemptions) The Act divides insurance business into two classes: a. general business, specified under the Regulations as motor, property, liability, financial loss, marine and aviation, goods in transit, accident and health and other general insurance; and b. long-term business, specified under the Regulations as annuity business, life, permanent health and other long-term insurance which, in each case, is subject to a more comprehensive regulatory regime than the general business class. 2.3 There are four categories of insurance licence available under the Act: a. Category A: this category of licence is issued only to BVI business 1 BVI Financial Services Commission Statistical Bulletin Q BVI Financial Services Commission Statistical Bulletin Q BVI Finance Newsletter, February Section 3(1), the Act. mourantozannes.com BVI CAYMAN ISLANDS GUERNSEY HONG KONG JERSEY LONDON

2 companies and entitles the holder to carry on insurance business, including "domestic business" (as explained further below); b. Category B: this category of licence is issued only to a non-bvi incorporated "foreign" company and entitles the holder to carry on insurance business in the BVI, including "domestic business"; c. Category C: this category of licence is issued only to BVI business companies and entitles the holder to carry on insurance business that is not "domestic business", including, if the licence permits, reinsurance business that is not "open market" reinsurance business (ie reinsurance business where the insurer is not connected with the reinsuer); and d. Category D: this category of licence is issued only to BVI business companies and entitles the holder to carry on reinsurance business, including open market reinsurance business. An insurer's licence stipulates the category of licence issued to the holder and the licensed holder is only permitted to carry out that category of business. Captive insurers should apply for either a Category C or Category D licence. 2.4 While there are four categories of insurance licence there is a clear distinction drawn in the licensing regime between: a. domestic business: being insurance business, excluding reinsurance business, the main objective of which is generally to insure BVI residents or property situated in the BVI; and b. non-domestic business: insurance and reinsurance business not classified as domestic business. 3. Introduction to Captives 3.1. Captive insurance is not defined in the Act or the Code. In applying the Code to captive insurers, therefore, the Commission has drawn on guidance from the IAIS Guidance Paper on the Regulation and Supervision of Captive Insurers, October 2008 (the IAIS Captives Paper) which adopts the following nonexhaustive working definition: "an insurance or reinsurance entity created and owned, directly or indirectly, by one or more industrial, commercial or financial entities, other than an insurance or reinsurance group entity, the purpose of which is to provide insurance or reinsurance cover for risks of the entity or entities to which it belongs, or for entities connected to those entities and only a small part if any of its risk exposure is related to providing insurance or reinsurance to other parties." In practice, the range of captives commonly used include the following: a. "pure" captives: ie single parent companies writing only the risks of their owner and/or affiliates (eg ownership by a trading conglomerate); b. group and/or association captives: ie multi-owned companies writing only the risks of their owners and/ or affiliates, usually within a specific trade or activity (eg the marine or aircraft industry); c. rental captives: ie insurers specifically formed to provide captive facilities to unrelated bodies for a fee where entities prefer not to form their own dedicated captive and make use of the expertise of the insurance manager; and d. diversified captives: ie captives writing a limited proportion of unrelated business in addition to the risks of their owner and/or affiliates. 3.3 The Code requires licensees to adopt a risk-based approach, particularly with respect to the requirements relating to 5 IAIS Guidance Paper on the Regulation and Supervision of Captive Insurers, October 2008 (as quoted in the Code, page 180).

3 corporate governance, policies, systems and controls and internal controls. There are no exemptions from the Code for captive insurers. However, "the Commission accepts that the Code must be appropriately applied to captive insurers given their particular circumstance" 6, often meaning that the corporate governance framework for captives may not be as comprehensive as those required of full service insurers. 4. The regulatory framework: licensing requirements 4.1. Application to licence an insurance company in the BVI is made to the Commission. Licensing decisions are made by the Commission's Licensing and Supervisory Committee (the Licensing Committee). The Licensing Committee has responsibility for considering applications from both "BVI insurers" and "foreign insurers". BVI insurers 4.2. Broadly, the Licensing Committee issues insurance licences to applicants who demonstrate that they meet the following key criteria: a. Adequate financial resources: i. An applicant must demonstrate that it has, or before the grant of licence will have, sufficient financial resources, including capital resources, to support the proposed licensed business that it will carry on, taking into account the nature, scale, complexity and diversity of the business and the risks to which the applicant is likely to be exposed. An applicant will have to demonstrate that, before the licence is issued, it will be able to satisfy the applicable minimum capital resources requirements; The statutory minimum capital contribution applicable to a category A, C and D applicant (a BVI insurer) who will undertake long-term business is US$200,000 and US$100,000 for general business. However, it may not be sufficient to simply apply the prescribed minimum; a BVI insurer must undertake a self-assessment including making financial projections that have been sufficiently "stress" and "shock" tested to enable the board and senior management of the BVI insurer to determine that it has sufficient capital resources to support the BVI insurer's business, taking into account its risk profile. The Commission also has the authority to impose a higher capital resource requirement if it is deemed appropriate; Insurance business licensees must also adhere to minimum solvency margins set out in the Regulations (which vary depending upon whether general business or long-term business is written); b. Suitability of owners, controllers and others: The applicant, its directors, senior management and significant owners must satisfy the Commission's "fit and proper criteria"; c. Suitability of management and organisational structure: An applicant must demonstrate that its management and organisational structures are adequate for the proposed licensed business. The applicant will need to demonstrate adequate internal controls and compliance procedures are in place, or will be in place upon the grant of a licence, and in particular that it has or will establish appropriate risk management policies, systems and 6 Regulatory Code, Explanatory Notes, page 179.

4 controls; d. Business plan: An applicant will generally be required to submit, as part of the licensing application, a business plan (covering the first five years of operation) that describes: i. the business proposed; i iv. marketing plans and expected sources of business; human resources; outsourcing arrangements (and how these arrangements will be overseen); v. "stress" tested financial projections for the first five years (though the Commission provides exemptions from stress testing for certain applicants); vi. any other business or businesses that are to be carried on; v the governance structure, the risk management procedures, the internal controls, including with respect to the detection and prevention of criminal activities, the reporting arrangements, both internally and to the Commission, that are in place, or will be put in place and, where appropriate, how liquidity will be managed; and vi any contracts, or proposed contracts, with connected persons. The business plan should reflect the risk profile of the proposed business, as well as various other prescribed requirements set out under the Code relating to the writing and undertaking of insurance business; e. Other criteria: An applicant will also need to satisfy the Licensing Committee that it meets a number of other criteria set out in the Code and the Act, including demonstrating that the proposed insurance business will be conducted in accordance with sound and prudent insurance principals and that it meets the Code's general licensing criteria. 4.3 Though the above parameters apply to all insurance licensees, including captive insurers, many of the provisions in the Code are non-prescriptive, providing the Commission with a necessary degree of flexibility with respect to the application of the Code to certain captive insurance applicants. For example, the Commission considers that a "pure captive" represents the lowest regulatory risk, as there are no unrelated party policyholders or potential third party beneficiaries. On the other hand, captives that write unrelated party business or that write third party liability risks should be considered as much closer to full service insurers. 4.4 Some concessions that may be applicable to a captive insurer applicant (depending on the type of captive) include: a. Business plan: In cases where an applicant has a small and uncomplicated business, the Commission may grant an exemption from either providing certain information or the production of the business plan in its entirety; b. Corporate Governance: The Commission recognizes the difference between many captive insurers and full service insurers, and accepts that these differences have a bearing on the corporate governance framework attributable to a captive insurer. In particular, the Commission recognizes that: i. many more of the functions of a captive insurer may be outsourced, either to the insurance manager or other specialists (eg claims administrators); and in many cases, captive insurers are small and have a relatively simple risk profile. In the circumstances, the Commission does not expect all captive insurers to establish a corporate governance framework that is equivalent to the corporate

5 governance framework required to be established by a Category A licensee. Indeed, the Commission recognises that an unnecessarily burdensome corporate governance framework would hinder the efficient operation of captive insurers. Thus, the principles-based nature of the Code enables the directors of a captive insurer to establish a corporate governance framework that is appropriate for the business undertaken by the insurer and the risks that it takes. The explanatory notes under the Code detail some of the concessions and considerations that may assist a captive insurance applicant tailor a framework for corporate governance appropriate to the risk profile, size and nature of the business for which a license is sought. For further information, we have transcribed the relevant explanatory notes in the Appendix to this guide. c. Management: The Commission recognizes that licensed insurance managers play a critical role in the management of captive insurers and, in certain circumstances, the obligations imposed by the Code on senior management of a licensee may be performed by the licensed insurance manager responsible for the captive insurer rather than the licensee itself. Foreign insurers 4.5 Foreign insurers (being entities holding, or entitled to hold, a Category B licence) are required to be appropriately licensed and supervised in their home jurisdiction for the activities for which a BVI licence is sought. Accordingly, whilst an application in the prescribed form must be submitted, the regulation and supervision of a licensed foreign insurer lies with its domestic regulator. Thus, the capital resource, contributed capital and solvency margin requirements described above that apply to BVI insurers are not relevant to a foreign insurer. The Commission may also exempt a foreign insurer from submitting a business plan. 4.6 The Commission will not issue a Category B licence unless it is satisfied, amongst other matters, that: a. the applicant is authorised by or under the law of its home jurisdiction to carry on insurance business of the relevant classes of business that a licence is sought; b. the relevant insurance business would be lawfully carried on if it were carried on in its home jurisdiction; and c. the relevant insurance business will be subject to the supervision of the authority responsible for the supervision of insurance business in its home jurisdiction. Foreign insurers will also need to demonstrate a sufficient nexus with the BVI. 5. Ongoing Obligations 5.1. BVI insurers: A BVI insurer must satisfy numerous ongoing obligations, which include the requirements to: a. maintain i. its business in a financially sound condition (that is to have admissible assets and generally conduct its business so as to be in a position to meet its liabilities as they fall due); i iv. the minimum capital contribution (as specified in the Code or as otherwise set by the Commission); the prescribed minimum solvency margin (as specified in the Code or as otherwise set by the Commission); adequate capital resources at a level that will adequately support its business, taking into account the nature, size, complexity, structure and diversity of that business and its risk profile; v. adequate systems and controls to monitor capital resource requirements on an ongoing

6 vi. basis; an investment strategy and such investment policies as the board considers appropriate, together with systems and controls that are sufficient to ensure that the investment strategy and policies are effectively implemented on an ongoing basis; v at its offices in the BVI or the office of its insurance manager (as applicable), records that are sufficient to: -- show and explain its transactions; -- at any time, to enable its financial position to be determined with reasonable accuracy; -- to enable it to prepare such financial statements and make such returns as it is required to prepare and make under the Act; -- if applicable, to enable its financial statement to be audited in accordance with this Act; b. ensure that the calculation and valuation of assets and liabilities are prepared in accordance with applicable accounting standards; c. appoint an approved auditor; d. prepare and submit to the Commission audited financial statements; e. appoint and at all times maintain a board of at least two directors; f. submit on an annual basis a summary of reinsurance arrangements together with copies of all reinsurance treaties (relevant to a category A licensee only); g. appoint and at all times maintain an insurance manager (relevant to a category C and category D licensee only); and h. appoint an actuary (relevant to a long-term BVI insurer only). 5.2 Foreign insurers As mentioned above, the capital resource, contributed capital and solvency margin requirements that apply to a BVI insurer on an ongoing basis are not relevant to a licensed foreign insurer. A foreign insurer must however satisfy the following ongoing obligations: a. where a foreign insurer conducts services only in the BVI, ie without establishing a branch office or subsidiary, it will be required to appoint a licensed insurance agent who holds a an insurance intermediary licence or insurance manager's licence; b. maintain: i. its business in a financially sound condition (that is to have admissible assets and generally conduct its business so as to be in a position to meet its liabilities as they fall due); i an investment strategy and such investment policies as the board considers appropriate, together with systems and controls that are sufficient to ensure that the investment strategy and policies are effectively implemented on an ongoing basis; maintain at its BVI office (or the office of its insurance agent) records that are sufficient to (x) show and explain all transactions relating to the business it carries on in the BVI; and (y) enable it to prepare such returns as it is required to prepare and make under the Act and the Code. A foreign insurer must also notify the Commission in writing of the place or places, whether in or outside the BVI, where its financial records, other than those specified above are maintained; c. ensure that the calculation and valuation of assets and liabilities are prepared in accordance with applicable accounting standards; and

7 d. submit to the Commission on an annual basis 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. 6. Licensing Exemptions 6.1. The requirement to obtain a licence does not apply to: a. to a member or syndicate of Lloyd's, where the member or syndicate is carrying on insurance business in the BVI in accordance with an approval granted by the Commission; b. to an approved reinsurer that enters into a reinsurance contract with a licensed insurer; c. to any person exempted from the requirements of the Act by virtue of regulations made under the Financial Services Commission Act, 2001; or d. where an exemption order has been granted by the Commission with respect to the insurer. An exemption order will generally only be granted in circumstances where the Commission is of the opinion that the applicant is willing to insure a risk that no licensed insurer is willing or able to insure, or in situations where a licensed insurers do not have sufficient capacity to insure. 7. Nature of Regulation The Commission is an autonomous regulatory body responsible for the regulation and supervision of financial services business conducted in and from within the BVI. The Commission conducts an off-site and onsite monitoring programme to assess the compliance of insurance licensees with the Code. The Commission has wide powers to take enforcement action against a licensee if the licensee has contravened, or is in contravention of, the Code including issuing a directive, requiring a licensee to appoint a qualified person to advise it, undertaking an investigation into a licensee's business and imposing administrative penalties. 8. Regulatory Reform The BVI overhauled its insurance legislation at the beginning of 2010 with the promulgation of the Act, the Code and the Insurance Regulations. The overhaul modernized the insurance regulatory framework ensuring that the jurisdiction continued to meet the core principles of the IAIS. At the time of writing, we are not aware of any further proposals to reform any laws relating to insurance in the BVI. Contacts: Simon Lawrenson, Partner, BVI Based in the Hong Kong office simon.lawrenson@mourantozannes.com Bronwyn King, BVI Based in the Hong Kong office bronwyn.king@mourantozannes.com Michael Williams, Partner, BVI michael.williams@mourantozannes.com Rachael McDonald, Partner, BVI rachael.mcdonald@mourantozannes.com

8 Appendix Explanatory Notes Paragraphs (xviii)-(xxv), Division II, Part IV of the Regulatory Code Captive Insurers Corporate Governance Regime 7 The corporate governance provisions in Part II of the Code apply to captive insurers. However, the Code takes both a principlesbased and a risk-based approach to corporate governance. Few detailed obligations are set out and the theme underlying the corporate governance requirements is that the corporate governance framework and the systems and controls required must take into account the nature, scale, complexity and diversity of the licensee's business. All captive insurers are required to appoint an insurance manager. The directors of a captive insurer should understand that, although the insurance manager is part of the corporate governance framework of a captive insurer, it does not take the place of the board which retains ultimate responsibility for the corporate governance framework, and the other obligations imposed on boards of licensees under the Code. The Commission recognises the differences between many captive insurers and full service insurers and that these have a bearing on the corporate governance framework. In particular, the Commission recognises that: a. many more of the functions of a captive insurer may be outsourced, either to the insurance manager or other specialists (e.g. claims administrators); and b. in many cases, captive insurers are small and have a relatively simple risk profile; In the circumstances, the Commission does not expect all captive insurers to establish a corporate framework that is equivalent to the corporate governance framework required to be established by a category A licensed insurer. Indeed, the Commission recognises that an unnecessarily burdensome corporate governance framework would hinder the efficient operation of captive insurers. The principles-based nature of the Code enables the directors of a captive insurer to establish a corporate governance framework that is appropriate for the business undertaken by the insurer and the risks that it takes. For example, the Code provides in paragraph 20(2)(d)(i) of the Code that the board of a licensee has responsibility for ensuring that the licensee has adequate and sufficiently qualified and experienced senior managers and other employees. This should not be taken to mean that every captive insurer must have employees. The Commission considers that the following key issues are particularly relevant to the design of an appropriate corporate governance framework for a captive insurer: a. the need to avoid undue influence by the captive insurer's owner, the insurance manager or other interested parties; b. the need to identify and effectively manage potential conflicts of interest; c. the need to ensure that the board is able to manage outsourced operations effectively, including the functions outsourced to the insurance manager; and 7 explanatory notes paragraphs (xviii)-(xxv), division II, part IV of the Code, pp

9 d. the need to take full account of interests of possible claimants on the parent policyholder where they rely on the fact that the captive is covering a particular liability. The above list is not exhaustive. Particular care must be taken to ensure that the owner of the captive insurer is not able to access the funds and other assets of the captive insurer where that may financially impair its ability to meet its liabilities. The Commission will, on its on-site inspections, look for evidence that the board and the insurance manager have given proper consideration to the appropriateness of the captive insurer's corporate governance framework.