On January 13, 2017, the then-US Secretary of the Treasury and the then-US Trade Representative (USTR) notified Congress that they had negotiated a covered agreement with the European Union (EU). After a period of uncertainty during which it was unclear whether the incoming Trump Administration would accept the Covered Agreement as negotiated by the outgoing Obama Administration, the US Department of the Treasury (Treasury) and USTR announced on July 14, 2017, their intent to sign the Covered Agreement, which occurred on September 22, 2017. Upon signing the Covered Agreement, the US Treasury and USTR also issued a joint policy statement on its implementation clarifying the United States’ position on the interpretation of certain provisions of the agreement.

On December 12, 2018, Treasury and the USTR announced their intent to sign a covered agreement with the United Kingdom, which would extend terms nearly identical to the EU Covered Agreement to insurers and reinsurers operating in the UK following Brexit. The UK Covered Agreement was signed on December 19, 2018.

Once the Covered Agreements take full effect, they will eliminate collateral and local presence requirements for qualified US reinsurers operating in the EU and UK insurance markets, and will eliminate the requirement for collateral for qualified EU and UK reinsurers operating in the US insurance market as a condition for their US cedants to take credit for reinsurance. In addition, if, as contemplated by the agreements, US states take appropriate action to establish group capital standards, the Covered Agreements provide that US insurance groups operating in the EU and UK will be supervised at the worldwide group level only by the relevant US insurance supervisors, and EU and UK insurers operating in the US will be supervised at the worldwide group level only by the relevant EU and UK insurance supervisors.

The Covered Agreements enjoy strong support from certain insurance industry segments and opposition from others. The National Association of Insurance Commissioners (NAIC) initially opposed the US-EU Covered Agreement, primarily for failing to provide for formal recognition by the EU of the US as a fully “equivalent” regulatory jurisdiction for Solvency II purposes. Following the July 14, 2017, announcement by the US Treasury Secretary and USTR, the NAIC, Treasury and USTR worked to clarify state regulators’ concerns, and the NAIC issued a statement following the September 22, 2017, signing that it is pleased that Treasury and USTR clarified their interpretation in key areas.

This Legal Alert examines the Covered Agreement—its genesis and what it does for insurers and reinsurers operating in the US, on the one hand, and in the EU or UK on the other.

Genesis

The Federal Insurance Office Act of 2010 (FIO Act), which was enacted as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), established the Federal Insurance Office (FIO) within the Department of the Treasury and authorized the US Treasury Secretary and the USTR to negotiate “covered agreements” with one or more foreign governments or authorities on the recognition of prudential measures with respect to the business of insurance or reinsurance that achieves a level of protection for insurance or reinsurance consumers that is substantially equivalent to the level of protection achieved under state insurance or reinsurance regulation.

The FIO Act also authorizes the preemption of US state insurance measures if the FIO Director determines that the state measures are inconsistent with a covered agreement and result in less favorable treatment of a non-US insurer covered by the covered agreement than a US insurer domiciled, licensed or otherwise admitted in that state.

In the EU, Solvency II permits the European Commission to make “equivalence” determinations for third countries with respect to certain areas of prudential regulation. Three elements that may be deemed equivalent are: (1) reinsurance—reinsurance contracts concluded with reinsurers in an equivalent jurisdiction will be treated in the same manner as contracts concluded with reinsurers in the European Economic Area (EEA) (i.e., no collateral or local presence requirements will be imposed); (2) solvency assessment—an EEA insurance group may calculate the solvency of any non-EU subsidiary in an equivalent jurisdiction using the calculation methods laid down by the equivalent third country where the non-EEA subsidiary is domiciled; and (3) group supervision—insurance groups subject to supervision by a non-EEA supervisor in an equivalent jurisdiction will be exempt from certain Solvency II worldwide group-level supervision requirements.

The US has been granted provisional equivalence with regard to solvency calculations for 10 years from January 1, 2016. However, this primarily assists only European insurance groups that do not need to calculate solvency for US subsidiaries within the group using Solvency II calculations.

Prior to announcement of the US-EU Covered Agreement, US insurers and reinsurers active in Europe had noted that some EU countries were raising barriers on the basis that the US did not have a regulatory framework that was equivalent to Solvency II, whereas the US, in comparison, was lowering barriers to non-US reinsurers operating cross-border in the US. Specifically, US insurers and reinsurers described difficulties with some EU member states’ implementation of Solvency II, including the need to obtain Solvency II compliance waivers as well as collateral posting and local presence requirements.

In the US, state insurance laws governing credit for reinsurance have historically required non-US reinsurers to post 100% collateral in the United States for risks reinsured from US ceding insurers. Global reinsurers have long complained about the collateral requirements. In 2011, the NAIC adopted amendments to its Credit for Reinsurance Model Law and Regulation (Reinsurance Models) that allow certain highly rated, non-US reinsurers domiciled in a “qualified jurisdiction” to reinsure US ceding insurers with reduced collateral. Only four EU jurisdictions have been approved as “qualified jurisdictions”—France, Germany, Ireland and the UK (the list also includes Bermuda, Japan and Switzerland, which are not EU member states). The reduced collateral requirements of the revised Reinsurance Models, which have been adopted in some form in approximately 49 US states, will become mandatory for all states as of January 1, 2019, under the NAIC’s accreditation program.

Against this backdrop, on January 13, 2017, the US Treasury Secretary, the USTR and the European Commission announced the successful completion of the Covered Agreement involving three areas of prudential insurance oversight: reinsurance, group supervision, and exchange of information among supervisors.

The US-EU Covered Agreement was the result of lengthy negotiations that were notified in advance to the US Congress by the FIO and the USTR on November 20, 2015. Similarly, the European Council had previously directed the European Commission to negotiate an agreement with the United States.

The US-UK Covered Agreement was negotiated in a shorter time, with only slightly more than two months between the initial notification to Congress that negotiations were underway and the announcement that an agreement had been reached. The press release for the announcement notes that the US-UK Covered Agreement is intended to provide “regulatory certainty and market continuity” as the UK prepares to leave the EU in March 2019 (at which point UK reinsurers doing business in the US and US reinsurers doing business in the UK would no longer be afforded the benefits of the US-EU Covered Agreement).

What the Covered Agreement does for insurers and reinsurers

Broadly, the Covered Agreements:

(1) Eliminate local requirements for reinsurers based in the other jurisdiction to post collateral or have a local presence (either as a requirement for the reinsurance placement or as a condition for receiving financial statement credit for the reinsurance); (2) Clarify that an insurance or reinsurance group will be subjected to worldwide group supervision only in its “home” jurisdiction, and not in other jurisdictions where it operates; and (3) Set forth practices to be encouraged for cooperation in the exchange of information among regulators in the respective jurisdictions.

There are important conditions attached to these provisions that have practical implications for when they take effect and what insurers and reinsurers must do.

Reinsurance

The Covered Agreements provide a major benefit to reinsurers operating cross-border between the US and the EU/UK that are currently required to post full or partial collateral or establish a physical presence. Under the Covered Agreements, all collateral requirements for cross-border reinsurance between the US and EU/UK would be eliminated. EU/UK reinsurers that currently benefit from the reduced collateral regime available for US “certified reinsurers” will no longer have to be from a “qualified jurisdiction” and will no longer be subject to the ratings-linked tiering percentages of the revised Reinsurance Models.

However, conditions apply. Many are the same conditions for “certified reinsurers” under the revised Reinsurance Models. Conditions for reinsurers that can automatically confer credit for reinsurance include a $250 million minimum capital and surplus requirement,1 periodic financial reporting, maintaining a practice of prompt payment of reinsurance claims, agreeing to notify the host jurisdiction of regulatory actions, agreeing not to participate in any solvent schemes of arrangement involving the host jurisdiction’s ceding insurers without posting full collateral, and agreeing to fully collateralize all reinsurance for cedants in receivership upon request. Importantly, the elimination of collateral requirements, like the revised Reinsurance Models, is available only for new and renewal business or newly amended contracts involving only prospective, not retroactive, reinsurance. This means that even following full implementation, different rules will continue to apply to similar arrangements entered into in prior years.

Reinsurers and cedants should consider carefully the conditions and the relative risks of failing to meet them. This may mean that parties look to ensure that the practical arrangements are in place to monitor compliance with the conditions and contingency plans for collateral in the event that the requirements are no longer met.

Finally, it is important to note that the Covered Agreements apply to cross-border reinsurance between US and EU/UK insurers and do not affect cedants and reinsurers operating from or in other countries. To head off future covered agreements with other countries, the NAIC has been working on further changes to the Reinsurance Models that would extend the Covered Agreement collateral provisions to reinsurers domiciled in NAIC qualified jurisdictions other than within the EU or UK.

Group supervision

The Covered Agreements introduce the concepts of “home” and “host” jurisdictions whereby an insurance or reinsurance group’s “home” jurisdiction is where the worldwide parent of the group has its head office or is domiciled, whereas a “host” jurisdiction is where the group has operations other than its home jurisdiction. The Covered Agreements provide, however, that authority over worldwide group supervision is limited to the home jurisdiction only if the home jurisdiction has certain regulatory tools in place.

In particular, groups are exempted from group capital requirements in the host jurisdiction only if the home jurisdiction applies a group capital assessment capturing risk at the level of the entire group, which may affect the insurance or reinsurance operations and activities in the other party’s territory, and has the authority to impose preventative and corrective measures based on such assessment, including requiring “capital measures,” where appropriate. There is no current authority in the US for the imposition of group capital assessments by state insurance regulators, or direct authority to require “capital measures” at the group level, and these would need to be developed by the states (or imposed by the federal government) in order to give full effect for US companies to take advantage of the exemption from the host jurisdiction group capital requirements. The NAIC formed a Group Capital Calculation (E) Working Group in 2016, which has been charged with constructing a US group capital calculation using a Risk-Based Capital aggregation methodology. Its work is ongoing.

Despite the Covered Agreement’s limitation of worldwide group supervision to the home jurisdiction of the insurance or reinsurance group, the host jurisdiction nevertheless continues (i) to be permitted to exercise group supervision at the level of a parent company within its territory, (ii) to receive Own Risk and Solvency Assessment (ORSA) summary reports, (iii) to impose preventative or corrective measures with respect to insurers or reinsurance in the host jurisdiction if the ORSA summary exposes any serious threat to policyholder protection or financial stability, (iv) to impose group reporting that directly relates to the risk of a serious impact on the ability of the group to pay claims, and (v) to request and obtain information where deemed necessary to protect against serious harm to policyholders or a serious threat to financial stability.

Timetable for implementation

The US-EU Covered Agreement entered into force on April 4, 2018, following the exchange of written notifications certifying that the Parties had completed their respective internal requirements and procedures. With regard to the EU, such internal requirements and procedures required approval of the Covered Agreement by both the European Council (March 20, 2018) and the European Parliament (March 1, 2018). With regard to the US, the FIO Act required submission to certain enumerated congressional committees. This submission took place on January 13, 2017, at the time of the announcement of the concluded negotiation of the Covered Agreement. The Covered Agreement may be terminated at any time with 180 days’ notice by written notification, following a mandatory consultation process.

Certain requirements relating to group supervision applied on a provisional basis from November 7, 2017, even before the agreement entered into force. Specifically, and primarily with a view of limiting the application of Solvency II requirements to US insurance groups pending full implementation of the Covered Agreement, the EU agreed to “ensure” that supervisory authorities follow its group supervision provisions, while the US agreed to “encourage” supervisory authorities to follow such provisions. The EU is required to begin applying the elimination of local presence requirements by September 22, 2019 (i.e., within 24 months of signing).

The US-UK Covered Agreement operates according to the same timetable, although the agreement does not “enter into force” until the UK and US governments exchange written notifications that they have completed domestic internal requirements and procedures. It is anticipated this would be when the UK is no longer covered by the US-EU Covered Agreement following its withdrawal from the EU.

The reinsurance collateral reduction elements of the Covered Agreements are to be fully implemented by September 22, 2022 (i.e., within five years of signing), but the US is required to encourage states to adopt phase-in provisions for the gradual elimination of collateral requirements (a 20% annual reduction from current levels). Furthermore, the FIO Director is to begin evaluating US state insurance laws and regulations for preemption by March 1, 2021, prioritizing those states with the highest volume of gross ceded reinsurance, and complete any necessary preemption determinations by September 1, 2022.

The reinsurance provisions are not self-implementing and require legislation or new rules by the US states, which state insurance regulators are seeking to quickly develop in order to avoid federal preemption of state regulation. Similarly, EU member states will need to revise their Solvency II implementing legislation, regulations, and procedures to the extent they are not compatible with the objectives of the Covered Agreement.

NAIC developments

At the NAIC 2018 Fall National Meeting, the NAIC Reinsurance (E) Task Force and Financial Condition (E) Committee adopted proposed changes to the Credit for Reinsurance Model Law and Regulation to address the reinsurance collateral provisions of the Covered Agreement. The revisions go beyond conforming changes to accommodate future covered agreements between the US and other foreign jurisdictions and to provide an equivalent elimination of reinsurance collateral for qualified reinsurers in other qualified jurisdictions that give reciprocity to US insurers with regard to the matters covered by the Covered Agreements.

For a detailed description of the NAIC’s proposed changes, see our alert here.

The NAIC Executive Committee and Plenary were expected to adopt the proposed revisions when they met via teleconference in late December 2018, but adoption has been deferred until the NAIC can make further changes to address concerns raised by Treasury following the 2018 Fall National Meeting.

In particular, according to reports, Treasury’s concerns relate to language in the proposed revisions that would grant state insurance regulators discretion to impose additional requirements for reduced collateral on certain reinsurers that could be inconsistent with the Covered Agreements. The timeline for the NAIC’s adoption of the proposed revisions is unclear and further changes may require another public exposure period. Once the proposed revisions are ultimately adopted by the NAIC, it will fall to the individual states to implement the necessary changes to their respective credit for reinsurance laws and regulations.