Preventing the Risk of Foreign Reinsurer Insolvency in a Global World: Developments Toward Transnational Recognition and Cooperation in the E.U. and the U.S.

Abstract

This paper researches a developing issue in regulatory cross-border reinsurance law: What is the approach taken by the European Union and the United States toward foreign reinsurers? National regulatory bodies are under pressure, caused by the reality of a state-less global market, to design adapted regulatory solutions. Several solutions are conceivable: national isolation, mere informal cooperation, mutual recognition of foreign equivalent regulation or internationally binding uniform standards on reinsurance solvency rules. In order to address the first, broader question, the paper presents the actual state of solvency regulation of reinsurers in the EU and in the US. The paper shows that over the last two decades, transnational prudential regulation of insurers and reinsurers has developed differently than by international agreement. A transnational governmental network, the International Association of Insurance Supervisors (IAIS), an association that operates as a voluntary membership of insurance supervisors of several jurisdictions, has silently advocated for cross-border equivalence assessments and mutual recognition. For instance, when the paper presents EU law – the Solvency II Directive – the practical impact of the technical guidelines developed by the IAIS becomes clear. The informal, cross-border “regulation” or soft law developed by the IAIS is transforming into formal rules. The EU Solvency II directive, taking effect in October 2012, has opted to perform mutual equivalence assessments, which implies that its solvency concept is to some extent exported, as a condition to allowing foreign reinsurers to the EU market. As a consequence, foreign regulatory bodies or foreign solvency regulation are faced with the need to find a mutually acceptable form of solvency regulation. In the U.S. the effect of cross-border reinsurance services has led to a new development in insurance law: A carefully defined area of insurance law, the area of “international insurance” or the negotiation of bilateral and multilateral agreements concerning recognition of prudential measures has been expressly federalized by the Dodd-Frank Wall Street Reform and Consumer Protection Act. Accordingly, the federal government will newly be represented in the IAIS, in addition to its separate states that are already member of the IAIS.