Insurance Bangkok Client alert September 2018 www.bakermckenzie.com Bangkok 5th Floor and 21st-25th Floors 990 Abdulrahim Place Rama IV Road, Silom, Bangrak Bangkok 10500 Thailand For further information, please contact: Sivapong Viriyabusaya +66 2666 2824 Ext. 4101 sivapong.viriyabusaya @bakermckenzie.com Ampika Kumar +66 2666 2824 Ext. 4207 ampika.kumar @bakermckenzie.com Sumet Orsirivikorn +66 2666 2824 Ext. 4204 sumet.orsirivikorn @bakermckenzie.com Amnart Pitakgorn +66 2666 2824 Ext. 4062 amnart.pitakgorn @bakermckenzie.com Jarae Sithiwong +66 2666 2824 Ext. 4207 jarae.sithiwong @bakermckenzie.com Draft Corporate Governance for the Board of Directors of Insurance Companies Background and Rationale Trust, honesty and responsibility to the insured and the public are the key pillars of the insurance industry. These pillars are generally reinforced through the maintenance of good corporate governance. With an aim to promote and ensure corporate governance, the Office of Insurance Commission (the "OIC") published the draft Notifications re: Corporate Governance of Life and Non-Life Insurance Companies (the "Draft CG Notifications"). These Draft CG Notifications are significant in that they serve as Thailand's first-ever legislation to specifically regulate corporate governance. To date, there appears to be a lack of legislation that clearly lays out the key requirements needed to ensure good corporate governance. The insurance industry functions with respect to guidelines that were published by the OIC in 2014, covering such issues as the composition, qualifications and the importance of good governance among the board of directors and other sub-committees of insurance companies (the "Guidelines"). However, as guidelines, they do not have any real legal effect. Therefore, it was difficult for the OIC to effectively request insurance companies to comply with some requirements, such as maintaining a certain number of independent directors and executive directors. Expected Effective Date The CG Notifications will come into force 180 days after its publication date in the Royal Gazette, but the provision on the composition of the board of directors will come into force on 1 January 2020. These Draft CG Notifications will replace and repeal the Guidelines. However, it is worth noting that some of the requirements previously prescribed in the Guidelines have been included in the Draft CG Notifications. The details of the Draft CG Notifications are as summarized below. Key Requirements Topic Note Definitions Set definitions for key positions in the insurance companies are introduced (e.g. executives; managers; directors; and executive directors). Further, definitions relating to the independence of directors (e.g. parent company; group companies; related persons; and controlling person) are clarified. The Guidelines lack these definitions, making interpretation difficult. These definitions will provide more clarity and certainty. Corporate Governance Framework Any insurance company must have a written good corporate governance framework (the "Framework"), which is approved by its board of directors and reviewed by the OIC. The Framework must include the company's policies and strategies on checks and balances, as well as supervisory systems. The Framework must be submitted to the OIC within 30 days of the CG Notifications coming into force. Following which, any amendments to the Framework that have been approved by the company's board of directors, must be submitted to the OIC within a one month period. The Framework requirement is introduced in the Draft CG Notifications. General Requirements for Directors Insurance companies must determine the corporate structure, composition, and the appropriate number of directors with consideration for the nature, size, and complexity of the companies; proper checks and balances; the directors' ability to work together; and compliance with life insurance and public company limited laws. This concept is stipulated in the Guideline but more details are provided under the Draft CG Notifications. Topic Note The board of directors of insurance companies must possess sufficient knowledge, abilities, experience; understanding of personal qualifications, duties, and responsibilities; as well as have a range of experience or skills that suit the nature, size, complexity, and risk of the companies. Composition of the Board of Directors The company's board of directors must consist of: (1) executive directors (not exceeding onethird of all directors); and (2) independent directors (at least onefourth of all directors). This requirement is in line with current requirements under the Guidelines. The above requirement will become effective on 1 January 2020 onwards. Chair of the Board of Directors The chair of the board of directors must be either an independent director or non-executive director, unless an approval is granted by the OIC on a case-by-case basis. This requirement is not stipulated in the Guidelines. The above requirement will become effective on 1 January 2020 onwards. Qualifications of Independent Directors Independent directors must have the qualifications as prescribed in the CG Notifications. This requirement is in line with current requirements under the Guidelines which further refer to qualifications of independent directors who will serve as members of the Audit Committee as prescribed under the Internal Control Notifications. Duty of the Board of Directors In addition, to the board of directors' general responsibilities of ensuring good systems and frameworks within the company, the following key duties and responsibilities are also imposed: (1) determine strategies and policies at least This requirement is not stipulated in the Guidelines. Topic Note on (i) business operations, (ii) conflict of interest, (iii) whistleblowing, (iv) compensation, and (v) code of ethics and business conduct; (2) ensure that efficient mechanisms are put in place to monitor and inspect at least (i) internal functions, (ii) a risk management and internal control, (iii) sub-committees appointments (iv) company's audit, (v) annual board of directors performance evaluation, (vi) public disclosure, and (vii) financial reports; and (3) constantly monitor the company's operation under certain criteria. Roles and Responsibilities of Directors Directors must observe the following roles and responsibilities: (1) comply with insurance and related laws; (2) act in the best interest of the company and the insured, with honesty and prudence; and (3) attend meetings regularly and give independent opinions, with respect to their fiduciary duties. This requirement is stipulated in the Guideline. Roles and Responsibilities of Executives Executives are to perform their duties by adopting the strategies and policies issued by the board of directors. In addition, they are also required to: (1) have regard for the sustainability of the company's business operations; (2) promote the implementation of risk management and internal control systems, and fair treatment of the insured; (3) timely report to the board of directors so This requirement is not stipulated in the Guidelines. Topic Note that their performances may be monitored and evaluated; (4) ensure that there is an appropriate chain of command, as well as risk management, regulation, control, and inspection for each chain; (5) communicate the board of directors' policies on risk management to other personnel; (6) perform annual assessment of the executives; and (7) act within the scope of their duties, unless the board of directors has considered that any out-of-scope performances would not affect their efficiency. Actions to take The Draft CG Notifications have completed the public hearing stage. The OIC will finalize and propose the Draft CG Notifications to the Insurance Commission for their consideration and approval in due course. It is essential that insurance companies are prepared to adapt to the Draft CG Notifications and take a proactive approach to ensure they are able to comply with the Draft CG Notifications when they come into force. 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