A Comparison of UK and Chinese Broking Regulation

Transcription

1 A Cmparisn f UK and Chinese Brking Regulatin David Cupe Partner +44 (0) [email protected] The fllwing tables are a cmparisn f UK and Chinese brking regulatins including the Llyd s regulatins. (crrect at the date f this article 15 July The fllwing tables are a cmparisn f UK and Chinese brking regulatins including the Llyd s regulatins. (crrect at the date f this article 15 July th Flr 106 Leadenhall Street Lndn EC3A 4AA T: +44 (0) New Lndn Rad Chelmsfrd Essex CM2 0PE T: +44 (0) EC3\Legal LLP. September EC3-0015

2 Wh apprves/regulates? United Kingdm FSA (and Llyd's fr Llyd's brkers) Peple's Republic f China China Insurance Regulatry Cmmissin (CIRC) Basic minimum standards fr authrisatin The Threshld Cnditins are set ut in Schedule 6 f the Financial Services and Markets Act. These are: Legal Status (para 1) Lcatin f Offices (para 2) Clse Links (para 3) Adequate Resurces (para 4) Suitability (para 5) The requirements are set ut in the Prvisins n Supervisin f Insurance Brkers. The sharehlder(s) have a gd reputatin and have n material illicit recrd The minimum registered capital is RMB10 millin, which must be injected in cash The insurance brker has a sund rganisatinal structure and management system The insurance brker has a registered ffice which is cmpatible t its business scale The insurance brker has cmputer hardware and sftware in relatin t its business and financial affairs, which is cmpatible t its business activities Other requirements as prvided in laws and administrative regulatins as well as impsed by the CIRC may apply. Market entry requirements fr a freign brker N/A A freign brker is required t have a crprate presence in the frm f a freign-invested insurance brking cmpany (either a whlly freign wned enterprise r a jint venture with a Chinese partner) in rder t carry n insurance brking business in China. A freign brker wuld usually g thrugh the fllwing 2-stage prcess

3 and satisfy the relevant requirements (in additin t the basis minimum standards fr authrisatin set ut abve) respectively t btain an insurance brker licence frm the CIRC: - (i) set up a Representative Office (RO) Requirements: - gd business perfrmance; having been engaged in insurance business fr at least 20 years; n recrd f any majr vilatin f laws and regulatins within three years prir t the applicatin date; the freign brker's ttal assets as at the year end prir t the applicatin shall be n less than US$200 millin; ther requirements stipulated by the CIRC. (ii) set up a freign-invested insurance brking cmpany it must have been engaged in insurance business fr mre than 30 years; a RO has been established in China fr mre than 2 years; its ttal assets as at the year end prir t the applicatin shall be n less than US$200 millin; the cuntry where it is situated must have a sund system fr regulatin f insurance business and it must already be under the effective supervisin f the relevant authrity in the cuntry cncerned; it must btain the apprval f the relevant authrities in its cuntry f incrpratin fr the establishment f prpsed freign-invested insurance brking cmpany in China; it must satisfy ther requirements stipulated by the CIRC.

4 Insurance brkerage activities f a freign invested brker N/A A freign invested brker is allwed t engage in the fllwing insurance brkerage activities, which are cvered under the China's accessin t WTO: - brkering business fr large scale cmmercial risks brkering business fr reinsurance brkering business fr internatinal marine, aviatin, and transprt insurance and reinsurance Supprting Dcs FSA Authrisatin Applicatin (retail intermediaries) (a) Staff rganisatinal chart A chart shwing that the firm has a management structure and clear reprting lines. The minimum requirements that shuld be prvided are the names f significant staff, direct reprting lines and direct reprting lines int the bard. (b) Business plan infrmatin Matters t be addressed include: backgrund t the applicant and business planning; lcatin; clients; target markets and marketing plan; persnnel and Internal cntrls; utsurcing with third parties. (c) Cmpliance prcedures Applicatin fr establishment f an insurance brking cmpany (a) Prescribed Applicatin Frm A frm indicating the basic infrmatin f the prpsed insurance brking cmpany and the sharehlder(s). (b) Prescribed Authrisatin Letter A letter authrising an individual t submit the applicatin dcuments t and cllect the licence frm the CIRC and handle ther matters in relatin t the applicatin. (c) Articles f Assciatin (d) Phtcpies f identificatin dcuments f sharehlder(s) Fr an individual sharehlder, the identificatin dcuments are ID card / passprt and CV. Fr a crprate sharehlder, the identificatin dcument is its business licence plus the financial statements fr the previus year. (e) Capital verificatin dcuments

5 Cmpliance prcedures must be available t facilitate the writing f the cmpliance mnitring prgramme. (d) Details f prfessinal advisers (if any) (e) Opening balance sheet A balance sheet prepared as at the start f the applicant firm's first 12 mnths f trading as an authrised firm. (f) Frecast clsing balance sheet (after 12 mnths trading r first years trading) A balance sheet shwing the financial psitin the applicant firm is frecasted t be in after trading fr 12 mnths as an authrised firm. (g) Mnthly prfit and lss accunt (fr the first years f trading) A statement shwing the frecast incme and expenditure f the applicant firm fr each mnth fr the first 12 mnths f trading as an authrised firm. (h) Mnthly cashflw frecast (fr the first years f trading;) A statement shwing hw a firm is paying fr its peratins and future grwth, by detailing the "flw" f cash int and ut f the firm. (i) Latest annual accunts (if any) A cpy f the firm's mst recent annual accunts (if the applicant firm is already trading). (f) Feasibility Study It must include the market analysis, and a three-year business develpment plan. (g) Name Pre-apprval Ntice (h) Internal management rules Matters t be addressed include: rganisatinal structure decisin-making prcess business peratin accunting and finance human resurces (i) Internal anti-mney-laundering plan and rules (j) Business service standards (k) qualificatin dcuments f senir management persnnel and individual brkers (l) wnership certificate r lease f the registered ffice (m) Intrductin f IT facilities (hardware and sftware) (n) Other dcuments as may be required by the CIRC.

6 Further dcuments (j) Prfessinal Indemnity Insurance qutatin Prfessinal Indemnity Insurance is needed fr all retail intermediary firms and a qutatin must be btained t cmplete the applicatin. Depending n the legal status If it is a freign-invested insurance brkering cmpany If sle trader If partnership If limited liability partnership If limited cmpany Details f the persnal and business assets and liabilities A cpy f the partnership agreement deeds Details f each partner's persnal and business assets and liabilities A cpy f the Limited liability partnership agreement Prf f capital (such as members' capital agreement) 88(2) frm (Cmpanies Huse Return shwing alltment f shares) (1) Dcuments t be submitted fr establishment f a RO (a) Prescribed Applicatin Frm A frm indicating the basic infrmatin f the prpsed RO and the parent cmpany. (b) Applicatin Letter addressed t the Chairman f the CIRC (c) Phtcpy f the incrpratin / registratin dcument f the parent cmpany (d) Cnstitutinal dcuments f the parent cmpany (e) List f the bard members / management persnnel (f) Annual statements fr the previus 3 years (g) Opinin f the insurance authrity / assciatin with regards t the parent cmpany's applicatin fr establishment f the RO The pinin must indicate the recrd f punishment f the parent cmpany within the previus three years prir t the issuance f the pinin.

7 Articles f Assciatin (h) Feasibility Study (i) Appintment Letter fr the Chief Representative and the CV f the Chief Representative Authrisatin Fee FSA Fee Time estimate FSA Authrisatin Fee Straightfrward applicatin( 1,500) Mderately cmplex applicatin ( 5,000) Cmplex applicatin ( 25,000) Fees cllected by the FSA include: FSA levy Levy - Financial Services Cmpensatin Scheme Levy - Financial Ombudsman Service Levy - Cnsumer Financial Educatin Bdy (nw Mney Advice Service) Decisins n cmplete applicatins fr Part IV permissin are generally delivered within 3 mnths (j) Statement which states that the Chief Representative did nt receive any punishment fr any material illicit activities (k) Other dcuments as may be required by the CIRC CIRC Authrisatin Fee N/A Fees cllected by the CIRC include: an annual fee f RMB20,000 fr a RO an annual fee f 0.12% f brkerage fr an insurance brking cmpany, which is in n case less than RMB1,200 The decisin shall be made within 20 wrking days upn receipt f the cmplete applicatin dcuments by the CIRC.

8 Apprved persns Cntrlled functins are rles within a business that have a particular regulatry significance. Anyne wh wish t perfrm ne r mre cntrlled functins must btain prir apprval frm the FSA. Cntrlled functins applicable fr UK and verseas firms Significant influence functins CF 1 Directr functin CF 2 Nn-executive directr functin CF 3 Chief executive functin CF 4 Partner functin CF 5 Directrs f an unincrprated assciatin CF 6 Small friendly sciety functin CF 8 Apprtinment and versight functin (Nn-MiFID business nly) CF 10 Cmpliance versight functin CF 11 Mney laundering reprting functin CF 12 Actuarial functin CF 12A With-prfits actuary functin Appintment f the fllwing persns need t be apprved by the CIRC: Chairman f the bard r executive directr General manager r management persnnel wh has the same pwers and duties Deputy general manager r management persnnel wh has the same pwers and duties Persn in charge f the insurance brking cmpany's branch

9 CF 12B Llyd's Actuary functin CF 28 System and cntrls functin CF 29 Significant management functin Custmer functins CF 30 Custmer functin Systems and Cntrls When cnsidering a candidate s fitness and prpriety, the FSA cnsiders (i) hnesty, integrity and reputatin; (ii) cmpetence and capability; and (iii) financial sundness. Determine the systems and cntrls necessary t supprt the firm's activities and t cmply with the relevant rules, and have plans t implement and test these systems. Determine the cmputer hardware and sftware are necessary t supprt the business activities and financial affairs.

10 Llyd's Registratin Requirements (assume UK firm) (a) Apprpriate regulatry apprval by the FSA (b) Adequate systems, prcedures and arrangements t cnduct business in the Llyd's insurance market The firm must demnstrate that it can prperly perate the necessary accunting and settlement and claims advice and settlement prcesses t transact at Llyd's. (c) Supprt frm at least ne Llyd's managing agent t enter int a Terms f Business Agreement with the firm The firm must demnstrate that it has Llyd's market supprt and will actually bring business t Llyd's. (d) Suitable prcedures t safeguard insurance mnies The firm must demnstrate that it has the necessary prcedures in place t prtect insurance mnies in the event f inslvency (e) Prfessinal indemnity insurance that meets the minimum requirements f Llyd's. The firm must demnstrate that it has taken ut and will maintain prfessinal indemnity insurance which meets the Llyd's requirements. Llyd's Applicatin fee 5,000 (n nging Llyd's charge t brkers fr placing and prcessing business at Llyd's)

11 If yu require further infrmatin please cntact any member f the EC3\Legal team David Cupe Partner David has been practicing crprate cmmercial law fr ver 25 years, principally arund the Lndn and Llyd s insurance market, and in China. His primary market is with insurance brkers, underwriting agents, MGA s and ther service prviders. Further advice shuld be taken befre relying n the cntents f this summary. All cpyright and rights t this Memrandum belngs t EC3\Legal LLP, and n part f this Publicatin shuld be used, reprduced r published in any manner withut prir cnsent. EC3\Legal LLP is nt respnsible fr the cntent f external websites.ec3\legal LLP a firm authrised and regulated by the Slicitrs Regulatin Authrity EC3\Legal LLP is a limited liability partnership registered in England under cmpany number OC fllw us n