global corporate insurance and regulatory bulletin - mayer brown
TRANSCRIPT
Global CorporateInsurance and RegulatoryBulletin
INSURANCE & REINSURANCE INDUSTRY GROUPSeptember 2013
September 2013
Contents Page
ASIA
China – Second Judicial Interpretation Helps Clarify PRC Insurance Law 3
China – Foreign Insurers Allowed to Contribute Registered Capital in Yuan 4
China – Consultation on Reinsurance as a Capital Optimisation Tool 4
China – Anything Can Be Insured: Mid-Autumn Festival Bad Weather Insurance 5
Hong Kong – Is a Cover Note a Formal Insurance Policy? 5
Hong Kong – Insurers Not Presumed to Know Facts Merely Because
They Are Available on the Internet 7
Myanmar – Private Insurers Commence Operations 8
UK/EUROPE
UK – Capital extractions by general insurers in run-off 9
Europe – EIOPA conference on global insurance supervision 10
US/AMERICAS
US – Initial Rector Report on Reserve Financing Transactions Submitted to
the NAIC’s Principle-Based Reserving Implementation (EX) Task Force 10
US – New York Department of Financial Services Will No Longer
Implement AG38 Principles-Based Reserving Approach 12
US - Bermuda Monetary Authority Participating in the NAIC’s Process for
Developing and Maintaining the NAIC List of Qualified Jurisdictions 12
US – FSOC’S Final Determination regarding Designation of
Prudential Financial Inc. as Systemically Important Insurer 13
US - NY DFS Letter regarding Terrorism Risk Insurance Program Renewal 13
1 mayer brown
ASIA
CHINA – SECOND JUDICIAL INTERPRETATION HELPS CLARIFY PRC INSURANCE LAW
The PRC Supreme Court has recently issued the Interpretations of the Supreme
People’s Court on Certain Issues Concerning the Application of the Insurance Law of
the People’s Republic of China (II) (the “Interpretation”), which came into force on 8
June 2013. The Interpretation clarifies a number of issues relating to insurable
interest, duty of disclosure and the insurer’s obligations to explain insurance clauses.
A summary of the key issues is set out below.
Insurable Interests of Different Parties in Property
Previously, the people’s court generally did not recognise that leasees or carriers have
insurable interests in property being used, leased or transported by them. Article 1 of
the Interpretation provides where different parties have taken out insurances for the
same property, the people’s court will uphold their claim on the insurance claim to
the extent of their insurable interest. The Interpretation formally clarifies that
different parties, including leasees and carriers, have insurable interests in property
even though they are not the legal owner and can purchase insurance for property
leased or carried by them.
Contracts Signed or Sealed by Insurer or its Agent
Sometimes, an insurer or agent of the insurer may sign or seal the insurance contract
purportedly on behalf of the applicant. Article 3 of the Interpretation provides that if
an insurance contract is not signed or sealed by the applicant or its agent, the
insurance contract is not valid unless the applicant pays the premiums.
Duty of Disclosure
Pursuant to Article 16 of the Insurance Law of the PRC, when concluding the
insurance contract, the insured is required to make true representations in response
to the insurer’s inquiries relating to the subject matter of insurance. The
Interpretation limits the insured’s duty as follows:
1. The insured only needs to provide information limited to the scope and content
of the insurer’s queries. In other words, the insured only needs to provide
information specifically requested by the insurer. If the insured and the insurer
have different understanding about the scope and content of the inquiry, the
insurer bears the burden of proving the scope of the inquiry.
2. The insured only needs to provide information that it clearly knows.
3. The insurer may not terminate the insurance contract if it has received premiums
when it knew or ought to have known that the insured failed to provide truthful
disclosure.
mayer brown 2
Obligation of Insurer to Explain Insurance Clauses
Pursuant to the Insurance Law of PRC, the insurer is required to explain any “clauses
exempting the liability of the insurer” (for example, exclusion clauses) and draw
attention to these clauses in the insurance policy or certificate, otherwise such
clauses are ineffective. The Interpretation confirms that “clauses exempting the
liability of the insurer” includes any exemption clauses, deductibles, excess,
proportion of claims or payment and other clauses exempting or reducing the liability
of insurer.
The Interpretation further requires that when the insurer makes any explanation to
the insured about the exemption clauses, this must be understandable to a layperson.
Recovery Against Third Parties
The Interpretation clarifies that the insurer can exercise subrogated recovery rights
against third parties in his/her own name and that the time limit for taking action
(generally 2 years) commences when the insurer acquires such right. In other words,
the time limit begins when the insurer has paid or agreed to pay pursuant to the
contract of insurance. This clarifies the controversy prior to the Interpretation where
some courts took the view that the insurer is not entitled to bring any subrogated
recovery against third parties if the insured’s claim against the third party was
already time barred.
Conclusion
The Interpretation provides welcome and timely clarification of a number of issues
surrounding the operation of the Insurance Law of the PRC. In particular, the
Interpretation is useful for insurers to ascertain the scope of inquiries when
concluding the insurance contract, their obligations to explain various clauses in the
policy as well as their rights of recovery against third parties.
CHINA – FOREIGN INSURERS ALLOWED TO CONTRIBUTE REGISTERED CAPITAL IN YUAN
Revisions to the Regulations on Administration of Foreign Invested Insurance
Companies has been released. The revisions came into force on the 1 August 2013,
and remove the requirement for foreign-owned insurance companies operating in
China to contribute their registered capital in freely convertible currency.
As such, an overseas insurer may now contribute registered capital to its Chinese
subsidiary in Chinese yuan, in an amount of no less than CNY 200 million or its
equivalent in a freely convertible currency (approximately US$ 32.5 million),
although it is common for higher requirements to be applied.
CHINA – CONSULTATION ON REINSURANCE AS A CAPITAL OPTIMISATION TOOL
Until now the legal status of reinsurance in China for capital management purposes
has been uncertain. After almost a year of reviewing the subject the China Insurance
Regulatory Commission (“CIRC”) has announced that it is preparing to allow
insurers to use reinsurance as a capital optimisation tool.
3 mayer brown
Reinsurance is able to improve an insurer’s capital position by allowing the insurer to
increase its assets or reduce its liabilities, and allowing the transfer of risk to a
reinsurer to reduce risk exposure.
CIRC circulated its Consultation paper on the regulation of life insurers using
reinsurance to improve solvency position on 20 July 2013.
CHINA – ANYTHING CAN BE INSURED: MID-AUTUMN FESTIVAL BAD WEATHER INSURANCE
An Internet-based insurance product was jointly launched this year by Taobao
Insurance (part of the Alibaba Group) and Allianz China General Insurance.
People in 41 cities of China (including Beijing, Shanghai, Guangzhou and Shenzhen)
were able to insure against bad weather obscuring the view of the moon on the night
of the Mid-Autumn Festival, which this year fell on 19 September. The insurance
covered the risk of cloudy, foggy or hazy weather.
The premium was CNY 20 yuan (US$ 3) and policyholders received CNY 50 (US$ 8)
if there was bad weather, as determined by the China Meteorological Administration.
All premium-payers received a box of mooncakes to celebrate the festival.
It is reported that of the 41 relevant cities only 9 cities experienced “bad weather”
(accounting for 9% of policyholders), and residents in the other 32 cities received no
compensation. Sales are reported to have generated a profit of CNY 320,000
(approximately US$50,000) from the period of 26 August to 5 September (the dates
on which the policy was available for purchase).
HONG KONG – IS A COVER NOTE A FORMAL INSURANCE POLICY?
The Court of Appeal in China Ping An Insurance (Hong Kong) Company Limited v.
Tsang Fung Yin Josephine and Mohammad Taj (CACV 179/2012) found that the
terms and conditions in a third party motor insurance policy had been incorporated
into the interim contract of insurance covering the time of accident (the cover note),
notwithstanding the formal policy had not been delivered to the insured. In this case,
Tsang was held to have breached her contractual duty to notify the insurer of the
accident pursuant to the terms of the Policy.
The decision reaffirms the legal position that where the terms and conditions
contained in the formal insurance policy are expressly referred to in the cover note
and the wording is sufficiently clear, the insured would be bound by the terms and
conditions contained in the formal policy even though the formal policy has not yet
been delivered.
Background
In this case, Tsang (the first defendant) (the “Insured”) was the registered owner of a
private car. Mohammad Taj (the second defendant) (the “Insured driver”) was the
authorised driver of the car. China Ping An Insurance was the motor insurer of the
private car (the “Insurer”).
mayer brown 4
On 1 June 2006, the Insured submitted the insurance proposal form to take out third
party motor insurance for the car. In the proposal form, the Insured signed on
declarations as follows:
“(5) I/We hereby agree that this Proposal and Declaration shall be incorporated
in and taken as the basis of the proposed contract between me/us and the
Company; and (6) I/We agree to accept a policy in the Company’s usual
insurance policy form this class of insurance.”
On the same day the Insurer issued a Cover Note to the Insured which stated that:
“Tsang Fung Yin Josephine having proposed for insurance in respect of the Motor
Vehicle … and having paid the sum of … the risk is hereby held covered in terms of
the Company’s usual form of THIRD PARTY ONLY Policy applicable thereto for a
period of 30 days … .” (the “interim contract of insurance”).
The Insurer issued a formal policy on 4 July 2006 and delivered it to the Insured on
22 July 2006. On 12 July 2006 (i.e., before the delivery of the Policy), the Insured
driver was involved in a traffic accident. He was prosecuted and convicted of careless
driving. The Insurer repudiated policy liability on the ground that the Insured had
failed to give notice of the accident pursuant to the terms of the policy. The insurer
settled two personal injury claims on a without prejudice basis and sought recovery
against the Insured and the Insured driver for the damages and costs paid in respect
of those claims.
The Court of Appeal Decision
The Insurer’s recovery action was dismissed by a Master of the Court of First
Instance upon the Insured’s application for an order of dismissal on the basis that the
notification requirement under the terms of the Policy formed no part of the interim
contract of insurance on the date of the accident. However, this decision was
successfully appealed by the Insurer to the Judge in Chambers. The Judge held that
on true and proper construction of the cover note, all the terms and conditions in the
Insurer’s third party motor insurance policy, including the notification requirement
were incorporated into this interim insurance contract.
The Insured appealed to the Court of Appeal. The Court of Appeal rejected the
Insured’s submission that the wording in the cover note merely defined the scope of
the risk covered and held that they were sufficient to incorporate the standard policy
terms into the interim insurance contract as the Insured had declared in the proposal
form that she agreed to accept a policy in the Insurer’s usual policy terms for motor
insurance. It was contended by the Insured that exclusory condition in the formal
policy should not be applicable until the policy was delivered to the Insured for her to
acquire knowledge of its contents. However, the Court of Appeal held that the
Insured should have had every opportunity to find out about the policy before she
submitted the proposal form and accepted the cover note.
5 mayer brown
Takeaway
1. Where the terms and conditions of a motor policy are expressly referred to in the
cover note and the wording is sufficiently clear, those terms and conditions would
be regarded as being incorporated into the cover note, and the insured would be
bound by those terms and conditions, notwithstanding that the formal policy has
not been delivered.
2. Insurers may need to review the wording of their cover notes and proposal
forms to consider whether the wording is sufficiently clear to ensure the proper
incorporation of the terms and conditions of the policy.
HONG KONG – INSURERS NOT PRESUMED TO KNOW FACTS MERELY BECAUSE THEY ARE AVAILABLE ON THE INTERNET
Should the insurer be presumed to have knowledge of matters that it could have
discovered from public resources? The Court of Appeal in Hua Tyan Development
Limited v. Zurich Insurance Company Limited [2012] 5 HKC 117 unanimously held not.
Background
Hua Tyan (the “Insured”) is a timber trader who ships logs from Southeast Asia to
China. It insured its vessel, MV Ho Feng No.7 (the “Vessel”), with Zurich Insurance
Company Limited (the “Insurer”). The Vessel sank during a voyage in January 2008
and the Insured claimed under its policy. The Insurer denied liability on the basis
that the Insured breached the Dead Weight Tonnage Warranty (the “Warranty”)
which warranted that the Vessel’s Dead Weight Tonnage (DWT) is not less than
10,000 tons. The Vessel’s DWT was in fact 8,960 tons and therefore breached the
Warranty. The Insurer also argued that the Insured breached its duty of disclosure by
failing to disclose the true DWT of the Vessel.
The First Instance Judgment
The First Instance Judgment (Chung J) held that the Warranty did not apply because
it was inconsistent with the purpose of the policy, which was to provide coverage for
the Vessel. Chung J also found that the Insured did not breach its duty of disclosure
because the Insurer could have found out about the tonnage of the Vessel from the
internet.
The Court of Appeal
The First Instance Judgment was overturned on appeal. The Court of Appeal found
that on the face of the policy, there was no inconsistency between the Warranty and
the coverage provided because the Insurer had agreed to cover the Vessel subject to
the Warranty.
mayer brown 6
In order to establish that the Warranty was inconsistent with the policy, the Insured
had to show that when the policy was issued, both the Insured and the Insurer knew
the Vessel’s true DWT, namely that it was less than 10,000 tons. An insurer is
presumed to know matters of common notoriety and matters which it ought to know
in the ordinary course of its business. The Court of Appeal held that just because the
information was available on the internet and the Insurer could have made inquiries,
it did not mean the Insurer should have made inquiries. The Insured must show there
was some foundation for the Insurer to make such inquiries, for instance, that it was
common practice for insurers to make such enquiries in the marine insurance
industry.
The Insurer therefore did not have presumed knowledge of the Vessel’s true DWT
merely because the information was available on the internet. The Warranty was not
inconsistent with the policy and the Insurer could rely on the Warranty to avoid
liability. Given the Insurer did not “know” the true DWT of the Vessel, the Insured
also breached its duty of disclosure by failing to disclose this information.
The Insurer’s appeal was allowed. As the Court of First Instance had found against
the broker in the alternative, judgment was entered against the broker instead.
Takeaway
Merely because information is available on the internet or from public resources does
not impose a duty on the insurer to make enquiries. The insured is still required to
disclose such information if material to the risk. There must be some foundation,
such as common industry practice, before the insurer is imputed knowledge of facts
available on the internet or from public resources. This decision certainly gives
insurers comfort that there is no duty to make enquiries merely because the
information is available from public resources.
The decision is welcomed as it confirms the insured or its broker bears the
responsibility of disclosing material facts, and the insurer cannot be expected to
undertake further enquiries of matters that are known by the insured.
MYANMAR – PRIVATE INSURERS COMMENCE OPERATIONS
IKBZ Insurance Public Company (part of the KBZ group) commenced business in
Myanmar in June 2013, and became the first private insurer to operate in Myanmar
in half a century. IKBZ have indicated an intention to list on Myanmar’s yet-to-be-
created stock exchange when it opens (scheduled for 2015).
This follows Myanma Insurance, the state-owned insurance company, approving the
commencement of business of 12 new private insurers - see our commentary in our
April 2013 bulletin (http://www.mayerbrown.com/
Global-Corporate-Insurance--Regulatory-Bulletin-05-09-2013/).
Myanma Insurance has stated that the country is looking to open up the insurance
market to foreign insurers by 2015, although this may be deferred to 2020 if domestic
insurers are thought unready to complete by then. Several foreign insurers have
already opened representative offices in anticipation of entry into the market.
7 mayer brown
UK/EUROPE
UK – CAPITAL EXTRACTIONS BY GENERAL INSURERS IN RUN-OFF
The Prudential Regulation Authority (PRA) has recently issued a consultation on its
draft supervisory statement on capital extractions, which seeks to clarify the PRA’s
expectation of compliance with existing provisions within the PRA Handbook.
The draft supervisory statement is directed at general insurance firms in run-off and
highlights key factors which should be considered by management in those firms
considering a request for capital extraction. The statement also contains provisions
on the likely approach the PRA will take to such requests.
The purpose of the statement is to ensure run-off firms have sufficient capital to meet
their obligations to policyholders as they fall due and that this remains the case
following a proposed extraction.
The PRA holds senior management and a firm’s Board responsible for maintaining
adequate capital at all times. As such, when considering a proposal for capital
extraction, they must assess the level of capital needed both immediately and in the
future before submission of the proposal to the PRA. The firm should undertake a
thorough review of its capital position in order to assess the adequacy of its solvency
position after the proposed extraction. As well as considering its current Individual
Capital Assessment (ICA), the firm should consider the expected future progress of
the run-off of the business. The firm should then seek Board approval for the capital
extraction proposal.
The Board should only give approval if it is satisfied that the proposed extraction will
not affect the company’s ability to maintain sufficient levels of capital.
Following submission of the proposal, the PRA will consider the request and if it
deems necessary will ask the firm to commission an independent review to further
satisfy the PRA of the accuracy of the review undertaken by the firm.
The PRA may then issue the firm with an Individual Capital Guidance (ICG)
detailing the level of capital the firm should hold in order for adequate financial
resources to be maintained. The ICG will normally be expressed as a fixed amount
and the firm must ensure its capital does not fall below this. The PRA expects firms
to hold capital above the level of the ICA/ICG at all times or above the firm’s Solvency
I Minimum Captial Requirement (MCR) if this is higher.
The PRA’s statement can be found at:
http://www.bankofengland.co.uk/pra/Documents/publications/policy/2013/
capitalextractions.pdf
mayer brown 8
EUROPE – EIOPA CONFERENCE ON GLOBAL INSURANCE SUPERVISION
The European Insurance and Occupation Pensions Authority recently held a
conference aimed at considering strategic regulatory issues.
The conference consisted of three sessions:
1. Self assessment of risks in insurance companies
It was agreed amongst participants that companies should consider their Own
Risk and Solvency Assessment (ORSA) to be a management tool, allowing
appropriate reflection of the nature, scope and complexity of insurers. It was
considered that ORSA would limit the amount of time regulators spent reviewing
historical financials and permit a risk based approach to supervision. It was also
stressed that prior to implementation of Solvency II, any ORSA carried out based
on ‘best estimates’ of solvency and capital requirements should not lead to
supervisory action.
2. Supervisory convergence
It was suggested that the financial crisis had resulted in a strong case for
convergence of supervision and regulation. It is hoped that such convergence
would lead to efficiency gains for policyholders, supervisors and companies alike.
The need for global standards to be unambiguous and enforceable was also
discussed. There was some debate here with various participants considering the
need for flexibility when implementing the standards.
3. The search for global standards
It was concluded that, in order for a truly level playing field to be established, the
focus should be on developing global standards rather than national mandates.
The key role in this challenging work should be given to the International
Association of Insurance Supervisors (IAIS).
The programme for the EIOPA conference can be found at:
https://eiopa.europa.eu/conferences-events/2013/conference-on-global-
insurance-supervision/index.html
US/AMERICAS
US – INITIAL RECTOR REPORT ON RESERVE FINANCING TRANSACTIONS SUBMITTED TO THE NAIC’S PRINCIPLE-BASED RESERVING IMPLEMENTATION (EX) TASK FORCE
On September 13, 2013, Rector & Associates, Inc. (“Rector”) submitted its initial
report (the “Initial Rector Report”) to the Principle-Based Reserving Implementation
(EX) Task Force (the “PBR Task Force”) of the National Association of Insurance
Commissioners (“NAIC”). The PBR Task Force is coordinating all of the NAIC’s
technical groups involved with projects related to the NAIC’s PBR initiative for life
and health insurance and is also charged with assessing the solvency implications of
life insurer-owned captive insurers and alternative mechanisms. Following up on the
completion of the Captive and Special Purpose Vehicle White Paper by the NAIC’s
Captives and Special Purpose Vehicle Use (E) Subgroup (the “Captives Subgroup”)
11 mayer brown
earlier this year, the PBR Task Force is tasked with considering the white paper’s
recommendations in the context of the proposed PBR system and with making
further recommendations, if any, to the NAIC’s Executive (EX) Committee. The
Initial Rector Report is intended to help the PBR Task Force with this task.
The Initial Rector Report sets forth the issues that the PBR Task Force, and more
broadly the NAIC, is facing regarding whether insurers should be allowed to use
captive reinsurance transactions for financing XXX and AXXX reserves. As noted
in our prior bulletins, the NY DFS and various other states’ insurance regulators have
expressed concerns about such transactions, and those concerns were embodied in
the Captives Subgroup’s White Paper. The Initial Rector Report states that Rector
interviewed regulators representing approximately 15 states and that most of the
regulators interviewed have approved the use of captive reinsurance for reserve
financing in some form or another -- although they also expressed unease about how
the transactions are currently being implemented. The Initial Rector Report starts
from the premise that the PBR Task Force does indeed want to continue exploring the
use of captive reinsurance for reserve financing, with appropriate changes to promote
consistency and ensure that approved transactions are sufficiently conservative. The
report sets forth a framework for the regulatory debate, and for that purpose the
report lays out specific issues for discussion under two potential alternative
frameworks.
The “conceptual underpinnings” of the framework set forth in the Initial Rector
Report are:
• XXX and AXXX reserves to pay policyholder claims should be established in
full, using applicable reserving guidance (currently, the “formulaic” approach).
• The formulaic reserves may then be conceptually separated into two portions,
based on an assessment of the probability that they will be needed to pay
policyholder claims:
– To the extent there is a reasonable probability that the reserves may be needed
to pay policyholder claims, the reserves should be conservatively backed by
high quality assets.
– Lower quality assets (including those not normally allowed as admitted assets
under statutory accounting) should be allowed to support the reserves, to a
limited extent, if an insurer receives regulatory approval to use them, if the
assets meet certain criteria, and if the probability that they will be needed to
pay policyholder claims is low.
• Toprovideconsistencyandalevelplayingfield,allinsurersandregulators
should use the same actuarial standard to determine what portion of the reserves
must be backed by high quality assets and what portion may be backed by lower
quality assets.
• There should be appropriate disclosure so that regulators and others (such as
rating agencies) can verify that insurers are following the rules and can more
effectively measure the levels of risk presented by approved transactions.
mayer brown 12
The Initial Rector Report then sets forth two alternatives for applying the concepts
above in practice – one alternative involving the use of reinsurance (in line with the
current use of captives for reserve financing) and the other alternative involving
keeping the assets and liabilities on the insurer’s balance sheet. The Initial Rector
Report notes that the latter approach would require regulatory and statutory
accounting changes. The Initial Rector Report is being reviewed by the PBR Task
Force at this time.
US – NEW YORK DEPARTMENT OF FINANCIAL SERVICES WILL NO LONGER IMPLEMENT AG38 PRINCIPLES-BASED RESERVING APPROACH
On September 11, 2013, the New York Department of Financial Services (the “NY
DFS”) sent a letter to all the commissioners of the NAIC notifying the NAIC that
effective September 13, 2013 New York will no longer implement the retroactive test
for Actuarial Guideline XXXVIII (“AG38”). AG38 establishes reserve requirements
for universal life insurance policies with secondary guarantees (“ULSG”).
In the letter, the NY DFS argues that it had brought to the attention of the NAIC in
2011 that many life insurance companies operating nationally had not maintained
sufficient reserves for ULSG and that the modified principles-based reserving
(“PBR”) approach under AG38 was intended to lead companies to increase reserves.
The NY DFS’s letter states that, instead of increasing reserves based on AG38’s
modified PBR approach, companies have kept reserves at the same level as previously
or have actually reduced reserves in many cases.
In addition, the letter argues against the adoption of PBR more generally. The NY
DFS asserts that, “[i]n its current form, PBR represents an unwise move away from
reserve requirements that are established by formulas and diligently policed by
insurance regulators in favor of internal models developed by insurance companies
themselves.” From that perspective, the NY DFS urges against adoption of PBR. As
a result, the NY DFS is now on record as opposing both the adoption of PBR and the
use of captive reinsurance for reserve financing (which the NAIC’s Captives Subgroup
has suggested would no longer be needed if PBR is adopted).
Insurance companies, industry representatives and other state regulators have
challenged the arguments made by the NY DFS in its letter and have raised concerns
about the unilateral approach taken by NY DFS in abandoning the AG38 PBR
approach that was adopted by the NAIC.
US - BERMUDA MONETARY AUTHORITY PARTICIPATING IN THE NAIC’S PROCESS FOR DEVELOPING AND MAINTAINING THE NAIC LIST OF QUALIFIED JURISDICTIONS
On September 16, 2013, the NAIC announced that the Bermuda Monetary Authority
(“BMA”) has accepted the NAIC’s invitation to participation in the “Process for
Developing and Maintaining the NAIC List of Qualified Jurisdictions”. The BMA is
the first foreign insurance regulatory authority to participate in the Process. As
discussed in our prior bulletins, the Process will be used by the NAIC to identify
qualified jurisdictions. Reinsurers domiciled in such qualified jurisdictions will be
eligible to apply to become “certified reinsurers”, which status will allow the
13 mayer brown
reinsurers to post reduced levels of collateral for credit for reinsurance as permitted
under the revised Credit for Reinsurance Model Law (#785) and Credit for
Reinsurance Model Regulation (#786).
The NAIC has invited interested parties to submit comments regarding the NAIC’s
consideration of the BMA by October 18, 2013. The NAIC seeks to complete the
expedited review process with respect to the BMA prior to the end of the year in
order to have the BMA included on the NAIC List of Qualified Jurisdictions effective
for January 1, 2014.
US – FSOC’S FINAL DETERMINATION REGARDING DESIGNATION OF PRUDENTIAL FINANCIAL INC. AS SYSTEMICALLY IMPORTANT INSURER
On September 19, 2013, the US Financial Stability Oversight Council (“FSOC”) made
a final determination to designate Prudential Financial Inc. as a non-bank
systematically important financial institution (“non-bank SIFI”). As reported in our
July bulletin, FSOC voted earlier this year to designate American International
Group Inc., GE Capital, and Prudential Financial as non-bank SIFIs. As discussed
further in that bulletin, Section 113 of the Dodd-Frank Wall Street Protection and
Consumer Protection Act grants FSOC the power to designate non-bank financial
entities as non-bank SIFIs. Prudential Financial appealed the non-bank SIFI
designation by FSOC. As part of the appeal process, Prudential Financial submitted
written hearing materials to FSOC, and FSOC held an oral hearing on July 23,
2013. The final determination means that FSOC has concluded that material
financial distress at Prudential Financial could pose a threat to the financial stability
of the United States and that the company should be subject to supervision by the
Board of Governors of the Federal Reserve System and enhanced prudential
standards. FSOC’s resolutions regarding the final determination including dissenting
opinions as well as FSOC’s basis for the final determination can be found here and
here, respectively.
US - NY DFS LETTER REGARDING TERRORISM RISK INSURANCE PROGRAM RENEWAL
On September 16, 2013, the NY DFS sent a letter to the Federal Insurance Office
urging reauthorization of the US federal terrorism risk insurance program that was
established under the Terrorism Risk Insurance Act of 2002 (“TRIA”). Enacted in
2002 after the September 11, 2001 terrorist attacks, TRIA created a US government
facility to provide coverage to insurance companies following an act of terrorism.
The Terrorism Risk Insurance Extension Act of 2005 extended the program until the
end of 2007, and the Terrorism Risk Insurance Program Reauthorization Act of 2007
extended the program until December 31, 2014. Congress is expected to consider
renewal of the program in the coming months.
In its letter, NY DFS sets forth its reasons for advocating renewal of the program: (1)
it increases the availability of commercial property and casualty insurance, and (2) it
increases the affordability of terrorism coverage. The NY DFS argues for making the
program permanent. New York is one of two states that bar terrorism exclusions in
policies that include standard fire coverage.
mayer brown 14
If you have any query in connection with anything in this Bulletin, please do not
hesitate to get in touch with your usual Mayer Brown contact or one of the contacts
referred to below.
CO-EDITORDavid Alberts
Partner
+1 212 506 2611
CO-EDITORLawrence Hamilton
Partner
+1 312 701 7055
CO-EDITORColin Scagell Partner
+44 20 3130 3315
CO-EDITORVikram Sidhu
Counsel
+1 212 506 2105
0356insOctober 2013
Mayer Brown is a global legal services organisation advising many of the world’s largest companies, including a significant portion of the Fortune 100, FTSE 100, DAX and Hang Seng Index companies and more than half of the world’s largest banks. Our legal services include banking and finance; corporate and securities; litigation and dispute resolution; antitrust and competition; US Supreme Court and appellate matters; employment and benefits; environmental; financial services regulatory & enforcement; government and global trade; intellectual property; real estate; tax; restructuring, bankruptcy and insolvency; and wealth management.
OFFICE LOCATIONS AMERICAS: Charlotte, Chicago, Houston, Los Angeles, New York, Palo Alto, Washington DC ASIA: Bangkok, Beijing, Guangzhou, Hanoi, Ho Chi Minh City, Hong Kong, Shanghai, Singapore EUROPE: Brussels, Düsseldorf, Frankfurt, London, Paris TAUIL & CHEQUER ADVOGADOS in association with Mayer Brown LLP: São Paulo, Rio de Janeiro Please visit our website for comprehensive contact information for all Mayer Brown offices. www.mayerbrown.comMayer Brown is a global legal services provider comprising legal practices that are separate entities (the “Mayer Brown Practices”). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe–Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorised and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. “Mayer Brown” and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© 2013 . The Mayer Brown Practices. All rights reserved.