Insurance Act 1978 - Bermuda Laws

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QUOFAT A F ERUNTBERMUDAINSURANCE ACT 19781978 : 39TABLE OF CONTENTS11A1BPART IInterpretationMeaning of “director”, “controller”, “chief executive”, “officer”, “senior executive”,“associate”Meaning of parent and subsidiary companyPART IATHE AUTHORITYFunctions and duties of the Authority22A2B2BA2CFunctions of the AuthorityAuthority’s statement of principlesGuidanceCodes of ConductInsurance Advisory CommitteePART IIREGISTRATION344A4B4C4D4DA4DB4E4EAInsurers to be registeredRegistration as insurerDetermination of class of registration for general businessClass 1 insurerClass 2 insurerClass 3 insurerClass 3A insurerClass 3B insurerClass 4 insurerDetermination of class of registration for long-term business1

INSURANCE ACT 8C91011121314Class A insurerClass B insurerClass C insurerClass D insurerClass E insurerClass IGBClass ILTClass IIGBClasses of insurer: interpretationFactors to be considered by Authority under section 4Further registration requirementsPrudential and technical standardsConsultationAuthority may exempt insurers, insurance managers and intermediaries from ormodify prudential or technical standardsAuthority may adjust enhanced capital requirement, statutory capital andsurplus, and insurance reservesAuthority may adjust registration requirements of innovative insurersProtection of public interest, policyholders of innovative insurers and clients ofinnovative intermediariesPaid up share capitalPrincipal office and principal representativePrincipal representative to report certain eventsAppointment of approved loss reserve specialistClass 3A, Class IIGB, Collateralized Insurer, Class 3B, Class 4, Class C, Class Dand Class E insurer to maintain head office in BermudaInsurance managers and intermediaries to be registeredThe Authority may register insurance managers and intermediariesFactors to be considered by Authority under section 10Power of Authority in relation to registrationRegistrationFeesPART IIIREGULATION OF INSURERS GENERALLY1515A1616A1717A17B1818A18BStatutory financial statementsDeclaration of complianceAppointment and approval of auditorsAuditor to communicate certain matters to AuthorityKeeping and filing of statutory financial statementsAdditional financial statements prepared in accordance with GAAP anddeclaration of complianceInsurance manager, broker, agent and insurance marketplace provider to filestatutory financial returnsInsurer to make financial returnsFailure to file statutory statements or returnsOpinion of loss reserve specialist2

INSURANCE ACT 197818C19202122Requirement to keep records in BermudaProhibition of non-insurance business to be carried on by insurersMinister may require Bermuda investmentMaintenance of assets in BermudaCustody of assetsPART IVINSURERS CARRYING ON LONG-TERM AND GENERAL BUSINESS232424A252627Insurers to which this Part appliesInsurer carrying on long-term and general business to maintain separate accountsCertification of dividendsTransfer of long-term businessAppointment of approved actuaryActuarial certificates of long-term business liabilitiesPART IVAGROUP Group SupervisorAuthority may exclude specified entities from group supervisionAuthority may include specified entities within group supervisionAuthority may withdraw as group supervisorFunctions of Authority as group supervisorAuthority to make RulesAppointment of an approved group actuaryPART VINSURANCE MANAGERS, BROKERS, AGENTS, INSURANCE MARKETPLACE PROVIDERSAND SALESMEN282929A29B29C29DInsurance managers, agents and insurance marketplace providers to maintainlists of insurers for which they actInsurance broker, agent, salesman or insurance marketplace provider deemedagent of insurer in certain casesPART VIPower to obtain information and reportsPower to require production of documentsCommunication with AuthorityMeaning of related company [repealed]POWERS3030A30AA30B30C30CAInvestigations on behalf of the AuthorityInvestigations of suspected contraventionsPower to require production of documentsPowers of entryObstruction of investigationsNotification of change of shareholder controller or officer of insurance manager,broker, agent or insurance marketplace provider3

INSURANCE ACT 2CNotification by shareholder controllers of new or increased control – privatecompaniesNotification by shareholder controllers of new or increased control - publiccompaniesNotification by shareholder controllers of disposal of shares in public and privatecompaniesObjection to new or increased controlContraventions by controllerObjection to existing controllerRestriction on and sale of sharesNotification by registered persons and designated insurers of change of controllerand officerMaterial change: insurer or insurance groupNotification of material change: insurer or insurance groupObjection to material change: insurer or insurance groupContraventions by insurer [repealed]Insurance managers and intermediaries to notify the Authority of certain eventsInsurers to notify the Authority of cyber reporting eventsMaterial change: insurance marketplace providerNotification of material change: insurance marketplace providerObjection to material change: insurance marketplace providerFailure to meet solvency requirementsFailure to comply with enhanced capital requirementClass 3A: exceeding net premiums written limitationClass C: exceeding total assets limitationClass D: exceeding total assets limitationRestrictions as to payment of dividendsRestrictions as to reduction of capitalPowers of interventionContraventions by designated insurerProcedure for giving directionsDirections in cases of urgencyPART VIADISCIPLINARY MEASURES32D32E32F32GPower to impose civil penalties for breach of requirementsCivil penalties procedurePublic censurePublic censure procedureProhibition Orders32H32I32J32KProhibition ordersProhibition orders: proceduresApplications relating to prohibition orders: proceduresDetermination of applications for variation etc.Injunctions4

INSURANCE ACT 197832LInjunctionsPART VIIINSOLVENCY AND WINDING UP33343535A3636A37383940Margin of solvency for general businessWinding up of insurers under Companies Act 1981Winding up on petition of AuthorityInsurers carrying on long-term businessWinding up of insurers carrying on long-term and general businessWinding up of insurersContinuation of long-term business of insurer in liquidationSubsidiary insurersReduction of contracts as alternative to winding upWinding up rulesPART VIIICANCELLATION OF REGISTRATION414244Cancellation of registration of insurersCancellation of registration of insurance managers, agents, brokers, salesmen andinsurance marketplace providersCancellation of registration to be gazettedPART VIIIAAPPEAL TRIBUNALS44A44B44C44D44ERights of appealConstitution of tribunalDetermination of appealsCosts, procedure and evidenceFurther appeals on a point of lawPART VIIIBNOTICES44F44GWarning noticesDecision noticesConclusion of actions44HNotices of discontinuancePublication44IPublicationPART IXSUPPLEMENTARY45464748Prohibition of loans to directors, etcEffect on business transactions of infringement of ActActing on behalf of unregistered insurerPersonal liability of intermediaries in certain cases5

INSURANCE ACT 19784950Control of advertisementsIssue of false documents etcPART XMISCELLANEOUS51NoticesPowers exercisable to assist foreign regulatory authorities51A51AA51B51C51D[repealed]Service of notice on Authority[repealed][repealed][repealed]Restriction on disclosure of cted informationDisclosure for facilitating the discharge of functions of the AuthorityDisclosure for facilitating the discharge of functions by other authoritiesInformation supplied to the Authority by relevant overseas authorityRegulations by MinisterSpecific offencesGeneral provisions relating to offencesCivil debt and civil penaltiesThe Authority may modify certain provisionsApplicationDesignated investment contractsTransitional [omitted]Amendment of Act No. 43 of 1971 [omitted]Commencement [omitted]SCHEDULE[preamble and words of enactment omitted]PART IInterpretation1(1) In this Act, unless the context otherwise requires—“actuary” means a member in good standing of the Canadian Institute of Actuaries,the Casualty Actuarial Society (in the U.S), the Institute of Actuaries ofAustralia, the Institute and Faculty of Actuaries (for the UK), the Society ofActuaries (in the U.S); the American Academy of Actuaries; or a member in goodstanding of an actuarial body recognized by the Authority;6

INSURANCE ACT 1978“approved actuary” means an individual approved by the Authority under section26(3);“approved auditor” means an auditor approved by the Authority under section16(3);“association of underwriters” means an association of individual underwriters,organized according to the system known as Lloyd’s whereby each underwritingmember of the association becomes liable for a separate and proportionate partof the sum secured by each policy subscribed to by that association; and, inrelation to such an association as aforesaid, “recognized” means recognized bythe Authority;“auditor” means either—(a) a person entitled to practise as a public accountant in Bermuda; or(b) a person who has qualified as an accountant by examination of one of theInstitutes of Chartered Accountants of England and Wales, Ireland andScotland or the Canadian Institute of Chartered Accountants or theAmerican Institute of Certified Public Accountants; or(c) a person recognized by the Authority as an auditor;“Authority” means the Bermuda Monetary Authority established by the BermudaMonetary Authority Act 1969;“available statutory capital and surplus” means an amount equal to the totalstatutory capital and surplus including any adjustments thereto made undersection 6D or by or under Rules made under section 6A;“available statutory economic capital and surplus” means an amount equal to thetotal statutory economic capital and surplus including any adjustmentsthereto made under section 6D or by or under Rules made under section 6A ofthis Act;“bank” means an institution licensed as a bank under the Banks and DepositCompanies Act 1999;“capital and solvency return” means such return relating to the insurer’s orinsurance group’s risk management practices and to the information used bythe insurer or insurance group to calculate its enhanced capital requirementas may be prescribed by or under Rules made under section 6A“capital redemption contract” means a contract (which by its terms is expressed tobe a capital redemption contract or a funding agreement) under which aninsurer may—(a) receive and accumulate sums of money; and(b) pay a sum or sums of money or render money’s worth,on dates and in amounts that are not based on life contingencies of any person;7

INSURANCE ACT 1978“Class 1”, “Class 2”, “Class 3”, “Class 3A”, “Class IIGB”, “Class 3B”, “Class 4” ,“Collateralized Insurer” and “Special Purpose Insurer” in relation to an insurercarrying on general business mean the class of the insurer’s registration undersection 4;“Class A”, “Class B”, “Class C”, “Class D” and “Class E” in relation to an insurercarrying on long-term business, mean the class of the insurer’s registrationunder section 4; ”“Class IGB ” means an insurer carrying on general business in an innovative andexperimental manner;“Class ILT” means an insurer carrying on long-term business in an innovative andexperimental manner;“code of conduct” means a code of conduct issued by the Authority pursuant tosection 2BA;“Collateralized Insurer” means an insurer that carries on special purpose business,but is not a “Special Purpose Insurer”;“the Court” means the Supreme Court;“decision notice” means a notice prepared in accordance with section 44G;“designated insurer” means an insurer designated by the Authority under section27B(5) in respect of an insurance group;“domestic business” means insurance business where, whether the contract ofinsurance is made in Bermuda or elsewhere, the subject-matter of the contractis either—(a) property that at the time of the making of the contract is in, or in transitto or from Bermuda; or(b) the life, safety, fidelity or insurable interest of an individual who at the timeof the making of the contract is ordinarily resident in Bermuda; or(c) a risk of a company formed in Bermuda that is not an exempted companywithin the definition of that expression in section 127 of the CompaniesAct 1981 [title 17 item 5];“eligible capital” means the available statutory capital and surplus of an insurer oran insurance group that qualifies for inclusion in any assessment of theinsurer’s or insurance group’s minimum margin of solvency or enhancedcapital requirement;“enhanced capital requirement” means additional capital and surplus requirementimposed by or under Rules made under section 6A;“excepted long-term business” means either—(a) credit life business, that is to say, the business of effecting and carryingout contracts of insurance against risks of loss to persons arising from the8

INSURANCE ACT 1978nonpayment of debts due to such persons by reason of the death of debtorsof theirs, being contracts that are—(i) not contracts of domestic business; and(ii) expressed to be in effect for a period of five years or less; and(iii) not either automatically renewable or convertible into contracts ofinsurance of any other kind or for any different period; and(iv) of a kind which the Authority, upon application made to it by theinsurer for the purpose, has given its prior approval in writing for theinsurer to effect and carry out; or(b) employee group business, that is to say, the business of effecting andcarrying out contracts of insurance on the lives of employees of the insureror of an affiliate (within the definition of “affiliate” in regulation 2 of theInsurance Accounts Regulations 1980 and in accordance with therequirements of any insurance accounts rules) of the insurer, beingcontracts that are—(i) not contracts of domestic business; and(ii) expressed to be in effect for a period of five years or less; and(iii) not either automatically renewable or convertible into contracts ofinsurance of any other kind or for any different period; and(iv) made on a group insurance basis; and(v) of a kind which the Authority, upon application made to it by theinsurer for the purpose, has given its prior approval in writing for theinsurer to effect and carry out;“financial year”, in relation to an insurer or insurance group, means the period notexceeding fifty-three weeks at the end of which the balance of the insurer’s orinsurance group's accounts is struck or, if no such balance is struck or if aperiod in excess of fifty-three weeks is employed, then calendar year;“functions” includes powers and duties;“general business” means, subject to subsection (4), insurance business that is notspecial purpose business or long term business but includes the business ofeffecting and carrying out contracts of insurance against risks of the personsinsured—(a) sustaining injury as the result of an accident or of an accident of a specifiedclass or dying as the result of an accident or of an accident of a specifiedclass, or(b) becoming incapacitated or dying in consequence of disease or disease of aspecified class,9

INSURANCE ACT 1978being contracts that are expressed to be in effect for a period of less thanfive years;“group” means a group of companies—(a) that consist of a participating company, its subsidiaries and any entitiesin which the participating company or its subsidiaries hold a participation;or(b) that is based on the establishment, contractually or otherwise, of strongand sustainable financial relationships among those companies;“group actuary” means an individual approved by the Authority under section27G(3);“IA” means an insurance agent carrying on the business of an insurance agent inan innovative and experimental manner;“IB” means an insurance broker carrying on the business of an insurance brokerin an innovative and experimental manner;“IM” means an insurance manager carrying on the business of an insurancemanager in an innovative and experimental manner;“IMP” means a person carrying on the business of an insurance marketplaceprovider in an innovative and experimental manner;“incorporated segregated account” has the meaning given in section 2(1) of theIncorporated Segregated Accounts Companies Act 2019;“incorporated segregated accounts company” has the meaning given in section 2(1)of the Incorporated Segregated Accounts Companies Act 2019;“innovative insurance business” means an insurance business approved by theAuthority to be carried on by a registered innovative insurer in an innovativeand experimental manner;“innovative insurer” means a Class IGB or Class ILT insurer;“innovative intermediaries” means a reference to IAs, IBs, IMs and IMPs;“insolvent” means, in relation to an insurer at any relevant date, that if proceedingshad been taken for the winding up of the insurer the Court could, in accordancewith sections 161 and 162 of the Companies Act 1981 [title 17 item 5], hold orhave held that the insurer was at that date unable to pay its debts;“inspector” means a person appointed as an inspector under section 30;“insurance accounts rules” means prudential standard rules made by the Authorityin accordance with section 6A(1)(f) of the Act;“Insurance Advisory Committee” means the Insurance Advisory Committeementioned in section 2C;10

INSURANCE ACT 1978“insurance agent” means a person who with the authority of an insurer acts on itsbehalf in relation to any or all of the following matters, that is to say, theinitiation and receipt of proposals, the issue of policies and the collection ofpremiums, being proposals, policies and premiums relating to insurancebusiness;“insurance broker” means a person who arranges or places insurance businesswith insurers on behalf of prospective or existing policy-holders;“insurance business” means the business of effecting and carrying out contracts—(a) protecting persons against loss or liability to loss in respect of risks towhich such persons may be exposed; or(b) to pay a sum of money or render money’s worth upon the happening of anevent,and includes re-insurance business;“insurance group” means a group that conducts insurance business;“insurance manager” means a person who, not being an employee of any insurer,holds himself out as a manager in relation to one or more insurers, whether ornot the functions performed by him as such go beyond the keeping of insurancebusiness accounts and records;“insurance marketplace” means a platform, of any type, established for the purposeof buying, selling or trading contracts of insurance;“insurance marketplace provider” means a person carrying on the business of aninsurance marketplace;“insurance salesman” means a person who otherwise than as an employee solicitsapplications for, or negotiates, insurance business on behalf of an insurer oran insurance broker or agent;“insurer” means a person carrying on insurance business;“long-term business” means, subject to subsection (4), insurance business of anyof the following kinds, namely,—(a) effecting and carrying out contracts of insurance on human life orcontracts to pay annuities on human life;(b) effecting and carrying out contracts of insurance against risks of thepersons insured sustaining injury as the result of an accident or of anaccident of a specified class or dying as the result of an accident or of anaccident of a specified class or becoming incapacitated or dying inconsequence of disease or disease of a specified class, but does not includeexcepted long-term business;(c) effecting and carrying out contracts of insurance, whether effected by theissue of policies, bonds or endowment certifica

INSURANCE MANAGERS, BROKERS, AGENTS, INSURANCE MARKETPLACE PROVIDERS AND SALESMEN Insurance managers, agents and insurance marketplace providers to maintain lists of insurers for which they act Insurance broker, agent, salesman or insurance marketplace provider deemed agent of insurer in cert