On Thursday, February 16, the Housing and Insurance subcommittee of the Financial Services Committee of the United States House of Representatives will hold a public hearing entitled, “Assessing the U.S.-EU Covered Agreement.” This hearing may provide the first indication of whether the Trump administration will support and implement the Covered Agreement as negotiated by the Obama administration or whether any members of Congress intend to take action to block the agreement, whether as part of an overhaul of the Dodd-Frank Act or otherwise.  

The upcoming hearing provides an occasion to examine the Covered Agreement—its genesis, what it does for insurers and reinsurers operating in both the EU and the U.S., its timetable and the road ahead for implementation.

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, established the Federal Insurance Office (FIO) within the Department of the Treasury and authorized the U.S. Treasury Secretary and the U.S. Trade Representative (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 U.S. 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-U.S. insurer covered by the Covered Agreement than a U.S. 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 U.S. has been granted provisional equivalence with regard to solvency calculations for 10 years from January 1, 2016. However, this primarily only assists European insurance groups that do not need to calculate solvency for U.S. subsidiaries within the group using Solvency II calculations.

U.S. insurers and reinsurers active in Europe have noted that some EU countries are raising barriers on the basis that the U.S. does not have a regulatory framework that is equivalent to Solvency II, whereas the U.S., in comparison, has lower barriers to non-U.S. reinsurers operating cross-border in the U.S.  Specifically, U.S. insurers and reinsurers have described difficulties with some EU member states’ implementation of Solvency II (in particular, Germany, Belgium, Austria, Poland and to a lesser extent, the UK), including the need to obtain Solvency II compliance waivers as well as collateral posting and local presence requirements.  

In the U.S., state insurance laws governing credit for reinsurance have historically required non-U.S. reinsurers to post 100% collateral in the United States for risks reinsured from U.S. ceding insurers.  Global reinsurers have long complained about the collateral requirements.  In 2011, the National Association of Insurance Commissioners (NAIC) adopted amendments to its Credit for Reinsurance Model Law and Regulation (Reinsurance Models) that allow certain highly rated, non-U.S. reinsurers domiciled in a “qualified jurisdiction” to reinsure U.S. 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 35 U.S. 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 U.S. Treasury Secretary, the USTR and the European Commission announced the successful completion of a covered agreement involving three areas of prudential insurance oversight:  reinsurance, group supervision and exchange of information among supervisors (the Covered Agreement).  

The Covered Agreement was the result of over one year of negotiations that were notified in advance to the U.S. 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.

What the Covered Agreement does for insurers and reinsurers

Broadly, the Covered Agreement:

(1) eliminates local U.S./EU requirements for reinsurers 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) clarifies 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)sets forth practices to be encouraged for cooperation in the exchange of information among EU and U.S. regulators.  

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 Agreement provides a major benefit to reinsurers operating cross-border between the U.S. and the EU that are currently required to post full or partial collateral or establish a physical presence. Under the Covered Agreement, all collateral requirements for U.S.-EU cross-border reinsurance would be eliminated. EU reinsurers that currently benefit from the reduced collateral regime available for U.S. “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 who 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 Covered Agreement, like the revised Reinsurance Models, is only available for new and renewal business or newly amended contracts involving only prospective, not retroactive, reinsurance.  

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 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 Agreement applies to U.S.-EU cross-border reinsurance and does not affect cedants and reinsurers operating from or in other countries. The revised Reinsurance Models will, therefore, continue to apply to such reinsurance.

Group Supervision

The Covered Agreement introduces 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 Agreement provides, 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 and has the authority to impose preventative and corrective measures based on such assessment. There is no current authority in the U.S. for the imposition of group capital assessments by state insurance regulators, and these would need to be developed by the states (or imposed by the federal government) in order to give full effect for U.S. companies to take advantage of the exemption from host jurisdiction group capital requirements. In the first half of 2016, the NAIC created the Group Capital Calculation (E) Working Group, which has been charged with constructing a U.S. group capital calculation using a Risk Based Capital aggregation methodology.

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 FIO Act provides that a covered agreement may enter into force with respect to the United States after 90 days from the date on which the copy of the agreement is submitted to certain enumerated congressional committees. This submission took place on January 13, 2017, at the time of the announcement of the signing of the Covered Agreement. The Covered Agreement itself provides that it will “enter into force seven days after the date the Parties exchange written notifications certifying that they have completed their respective internal requirements and procedures, or on such other date as the Parties may agree.” With regard to the EU, such internal requirements and procedures require approval of the Covered Agreement by the European Council and the European Parliament.  

Certain requirements apply on a provisional basis even before the agreement enters into force. The EU agrees to “ensure” that supervisory authorities follow the group supervision provisions, while the U.S. agrees to “encourage” supervisory authorities to follow such provisions, in each case after each notifies the other that its internal requirements and procedures for provisional application have been completed. The EU is required to begin applying the elimination of local presence requirements within 24 months once the agreement has taken effect or the parties have notified each other that their internal requirements and procedures for provisional application have been completed. 

The reinsurance collateral reduction elements of the Covered Agreement are to be fully implemented within 5 years, but the U.S. is required to encourage states to adopt phase-in provisions for the gradual elimination of collateral requirements (a 20% annual reduction from current levels). The reinsurance provisions are not self-implementing and require legislation or new rules by the U.S. states. This will likely require the development of additional revisions to the Reinsurance Models by the NAIC, potentially within a newly created working group under the NAIC’s Reinsurance (E) Task Force. The FIO Director is to begin evaluating U.S. state insurance laws and regulations for preemption within 3 ½ years.

The Covered Agreement may be terminated at any time with 180 days’ notice by written notification, following a mandatory consultation process.  

The Road Ahead

It is unclear what view the current administration will take regarding the Covered Agreement and if it will be allowed to stand, particularly given the administration’s recent pronouncements regarding a reassessment of the Dodd-Frank Act. On balance, the Covered Agreement could appear to favor EU market participants at a time when the administration has indicated it may seek to renegotiate trade agreements seen as disadvantaging U.S. interests.

Although the Covered Agreement does not specifically address U.S. equivalence for purposes of Solvency II, the U.S. has been granted provisional equivalence with regard to solvency calculations for 10 years from January 1, 2016. The other two areas for equivalence evaluations under Solvency II are group supervision and reinsurance, both of which are addressed by the Covered Agreement. As a result, to the extent to which the Covered Agreement is implemented, there may be arguments either to expedite the process for providing the U.S. full equivalence or, equally, less of an incentive to gain full equivalence on the basis that the Covered Agreement largely provides the same benefits. 

In the event the Covered Agreement does move forward, we expect that U.S. state insurance regulators, coordinating within the NAIC, will seek to quickly develop state legislation to give effect to the Covered Agreement 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.

In the context of the UK’s vote to exit from the European Union, the assumption is that the UK will, alongside its negotiation of its exit from the European Union and any bilateral agreement in relation to the EEA and access to the single market, seek to agree a similar bilateral agreement between the UK and the U.S. It is also quite possible that the contents of the Covered Agreement will be incorporated into a wider bilateral trade agreement between the UK and the U.S. in due course.
                            

¹ Under the Covered Agreement this may be calculated according to the methodology of the home jurisdiction rather than U.S. GAAP or IFRS with a GAAP reconciliation under the revised Reinsurance Models.