The increasing trend to use Third Party Declaratory Relief Applications against Insurers
Overview
A third party claimant, not a party to a policy of insurance, can seek recourse to the proceeds of that policy, through the application of either the Corporations Act (ss 562 and 601AG), the Bankruptcy Act (s117) or the Insurance Contracts Act (s 51).
Key Points:
Section 562A of the Corporations Act does not apply where liquidator realises a sum of money by assigning the proceeds of the reinsurance claim to a third party.
Liquidators of insurance companies face a major quandary when assessing reinsurance recoveries.
A new Court decision may undercut the legislative policy that reinsurance proceeds should be quarantined from the normal rules for paying out creditors of insolvent companies.
The Committee of European Insurance and Occupational Pensions Supervisors (CEIOPS) has published an Issues Paper on 'Risk Management and Other Corporate Issues'. The paper is not a formal consultation. Instead, it is part of CEIOPS' preparation for future work under the Solvency II project.
The Reserve Bank has published a consultation paper on insurance solvency standards: the quality of capital and regulatory treatment of financial reinsurance. The paper outlines the attributes the Reserve Bank expects to see in regulatory capital instruments, such as permanence and the ability to absorb losses, and proposes consequential clarifications to the solvency standards to reflect these expectations.
On 26 August 2015, the Board of the Romanian Financial Supervisory Authority (“FSA”) analysed the status of the Romanian insurance undertaking ASTRA SA, considering the report of the special administrator, KPMG Advisory.
According to the FSA, on 30 June 2015, ASTRA SA had: (i) a negative available solvency margin of approximately RON 871 million (approximately EUR 197 million), (ii) a liquidity ratio of 0.03, and (iii) a capital shortage of approximately RON 968 million (approximately EUR 220 million).
On January 25, 2016, the Romanian court handling the bankruptcy proceeding of Astra SA extended the deadline to file court claims against Astra SA to 17 February 2016. The initial deadline for filing was 18 January 2016. Creditors of Astra SA may wish to avail themselves of this extended deadline to file such claims in order to recover some or part of the amounts owed to them by Astra SA in the bankruptcy/liquidation proceedings.
On 16 April 2014, the Official Gazette published Norm 5 of 2014 of the Romanian Financial Supervisory Authority (the“FSA”) as a supplement to several regulations relating to the calculation of the re/insurer’s solvency margin, the minimum solvency margin and the safety fund (“Norm 5/2014”).
The Romanian government has adopted, by means of Government emergency ordinance no. 91, the Insolvency Code. The Code gathers and amends all pre-insolvency and insolvency provisions in Romanian legislation relating to companies, groups of companies, credit institutions, insurance and reinsurance companies, as well as cross-border insolvency proceedings. It will enter into force on October 25, 2013 and will also apply to already ongoing insolvency proceedings.
On July 14, 2009, the Ontario Superior Court of Justice released its decision in Canada (Attorney General) v. Reliance Insurance Company, an application regarding the allocation of surplus arising from the liquidation of the Canadian branch (Reliance Canada) of U.S.-based Reliance Insurance Company (Reliance U.S.), a property and casualty insurer that was itself in liquidation.
On October 21, 2008, the China Insurance Regulatory Commission of the PRC (CIRC) issued the Circular on Implementing the Administrative Provisions on the Solvency of Insurance Companies which went into effect on the same day. The Administrative Provisions on the Solvency of Insurance Companies, which the Circular intends to implement, replaced the 2003 Provisions for the Administration of the Insurance Company Solvency Quota and Regulatory Indices (the 2003 Provisions). The 2003 Provisions did not prioritize solvency issues.