BRMA: A Contract Certain Product: Principles [and Practice] for the. US Broker Reinsurance Market

Transcription

1 BRMA: A Contract Certain Product: Principles [and Practice] for the 1. Background US Broker Reinsurance Market Reinsurance has evolved considerably since the days when contracts were sealed by a handshake and the historical relationship approach between ceding companies and reinsurers has now been largely replaced by a short-term transactional method of engagement. Concurrently, greater regulatory scrutiny, including SOX, and more recently the uncertainty in the larger financial markets now place greater emphasis on risk management and exposure control. In this arguably more contentious environment, relationships between ceding companies and reinsurers are now, more than ever before, driven by the letter of the reinsurance contract. Understandably, this change in trading patterns has led to a greater focus on the content of the contract wordings that govern reinsurance placements. Despite the heightened attention given to contracts, the industry has spent comparatively less effort refreshing the process used to develop and execute these contracts. While there have been some recent improvements, such as a general move from using placement slips to providing full contract wordings with submissions, the industry needs to consider the adoption of additional refinements and improvements to the process of drafting, negotiating and izing contract documentation in order to meet the demands of today s marketplace. Against this landscape, regulators, such as the New York Insurance Department, the FSA and legal commentators have raised concerns regarding the prevailing contract practices in the industry, particularly with respect to the timing of contract execution. While regulatory attention has ebbed and flowed, the industry risks unnecessary intervention and significant compliance costs if its business practices are not state of the art. A different approach to the contracting process, that takes into account more modern business practices, would mitigate both regulatory risk as well as the real financial risk associated with contract disputes. The disputes following the destruction of the World Trade Center, although generally involving insurance rather than reinsurance contracts, were quite costly to many industry participants and should serve as a reminder of the real economic loss the industry faces by clinging to out of date processes. A more efficient contract drafting/negotiating process would reduce these risks and avoid future disputes, as well as better position industry participants from a corporate governance perspective. Equally, the industry stands to realize hard-dollar economic gains from embracing a more efficient process that is more in step with the fast-paced nature of business in today s electronic age. Page 1 of 7

2 For all the above reasons, BRMA believes that it is appropriate to put forth a set of principles and practices that will facilitate contract certainty within the US broker reinsurance markets. BRMA believes that the capability to deliver a contract certain product will be a competitive necessity, both in view of domestic regulators expressed opinions as well as the approaches taken to contract certainty in other jurisdictions, such as the United Kingdom and Bermuda. This paper outlines principles and practices that will facilitate the United States broker markets ability to continue its improvement of contracts at inception and offer a contract certain product, which in turn will enable the broker markets to deliver a more competitive product to its clients. 2. Contract Certainty Defined For the purposes of this discussion, Contract Certainty is defined by the following two dependent requirements: 1) the complete and written agreement of all contractual terms between the ceding company and all participating reinsurers by the inception date; and 2) the delivery of the physical contract, signed by all parties, before inception or promptly thereafter (within 30 days) in situations where an electronic signature process is not used. [Note: Unlike other jurisdictions, the mere agreement of economic terms on a slip or shortened contract would not constitute Contract Certainty according to this definition.] 3. Challenges to Achieving Contract Certainty There are several aspects of the reinsurance business that present challenges to achieving Contract Certainty: Reinsurance contracts are generally bespoke to each transaction, and parties often seek terms and language in line with their unique business needs and standards. Reinsurance contracts are generally twelve-month agreements that must be renewed annually, historically resulting in re-consideration or renegotiation of most/all clauses, even non-economic clauses that are rarely influenced by the nature of the specific transaction. A large number of reinsurance contracts have the same inception dates, creating peak work load periods during a calendar year. Historically, many reinsurers, cedants and brokers have used the nine-month rule to stretch these peak periods and smooth workflow. The broker market is a subscription market and as such, reinsurance contracts have multiple parties, each with their own needs and concerns. Page 2 of 7

3 The practice of agreeing to full contract wordings well after the inception date of coverage originated from the comfort provided by the historical long - standing relationship nature of the business. In the 1990 s, in an effort to address risk transfer issues and improve contract practices, the NAIC promulgated the nine month rule. This SAP rule was adopted to set a new and unambiguous standard as a means of identifying retroactive contacts not entitled to reinsurance accounting and also reduce what-- in some circumstances, multiple year delays in contract execution. The regulation had its desired effect, and multiple year delays have all but disappeared. However, as the rule provided no incentive for subsequent improvement or advancement, it has had the unintended consequence of perpetuating a standard that is now out of step with the modern business environment. Notwithstanding the nine-month rule, the broker market over the last several years has substantially improved in contract turnaround time for a meaningful percentage of its contracts. It has done so despite the fact that the process for negotiating and constructing contracts has largely remained unchanged for decades. Further improvements could be made by addressing the following, lingering inefficiencies: Contracts are not always forwarded to the reinsurer early in the process, sometimes as a result of waiting until it seems likely that the economic terms will be agreed. When contracts are provided to reinsurers early in the process, all reinsurers do not review the wording in a timely manner. Multiple changes and contract versions can be circulated throughout the negotiating process, which can be difficult to track. Conflicting requests from reinsurers frequently cannot be addressed or resolved until signed lines are determined. Some of these challenges could be addressed via ceding companies, reinsurers and brokers increasing their staffing levels. Yet, increasing staff for short-term work crunches is not efficient for any of the parties and increases the cost of broker market products, which would be contrary to the best interests of broker market clients. 4 Principles and Suggested Best Practices The goal of BRMA and its members is to provide clients of the broker reinsurance markets competitive and user friendly reinsurance products that outperform those of direct market reinsurers. A close inspection of the above challenges reveals that they are in fact surmountable, and as a step in this direction, BRMA endorses and recommends adoption of the following best practice principles and procedures: Page 3 of 7

4 It is prudent that all articles of a reinsurance contract be clear and unambiguous as to intent and operation. Brokers and reinsurers should be open-minded and consider other alternative processes for achieving contract certainty. Unless instructed otherwise by the cedant, brokers should involve the reinsurer(s) in the contract wording process as early as possible, providing full draft contract wordings concurrent with the initial reinsurance submission. Whenever possible, changes to non-economic terms should be negotiated before the renewal process begins. Brokers should work with their cedant clients to explain new issues or concerns to the reinsurers as early as possible preferably prior to the issuance of draft contracts if possible. Reinsurers should work with brokers to explain new issues or concerns to the ceding companies as early as possible, preferably prior to the issuance of draft contracts. Brokers and reinsurers should strive to anticipate and rapidly react to market or regulatory issues and collaborate with each other and the ceding company to develop and implement viable solutions. To the extent brokers intend to recommend new and/or improved clauses to their client ceding companies, whenever appropriate, brokers should endeavor to obtain reinsurer feedback simultaneously with ceding companies discussions. Whereas bespoke language is an integral part of the business, brokers should facilitate interaction between cedants and reinsurers to resolve contract issues and develop acceptable wordings. The reinsurance intermediary is an advocate for the ceding company and should act accordingly. As part of this role, brokers should facilitate direct communication between the ceding company and the reinsurer when such communication would be conducive to producing an agreement between the parties. Reinsurer(s) should ensure contracts are reviewed as soon as possible, addressing any concerns prior to or concurrent with providing quotations. Reinsurers should commit to the execution and return of signed contracts at inception (or within 30 days of receipt of the contract in situations where electronic signatures are not used). Page 4 of 7

5 Reinsurers should commit to the execution and return of any subsequent endorsements, at the time of agreement to the endorsement (or within 30 days of receipt of the endorsement where electronic signatures are not used). Brokers should endeavor to ensure that contracts are signed concurrently by all reinsurers and the ceding company and expedite the exchange of execution copies. BRMA should evaluate the establishment of best practices for reviewing contract revisions on marked/red-lined versions, including preferred software and / or agreed protocols. Brokers and reinsurers should clearly and accurately document and maintain procedures for tracking contract certainty exceptions (i.e. those contracts that did not get signed within the time frame) Noting that many brokers and reinsurers currently track and monitor performance on contract certainty, if determined necessary, BRMA should research and consider promulgating data definitions and consistent standards for capturing statistics, such as the date contract was sent to the market, the date all terms were agreed, the dates that the reinsurer and cedant sign the contract, etc.. Additionally, BRMA should explore the feasibility of data collection from its members to measure the effectiveness of the Contract Certainty process. 5. Practical Solution While adoption of the above principals will enhance the broker markets ability to deliver contract certain products to its clients, meaningful progress will require either an elevation of staffing levels or adoption of new processes. Recognizing that increased staffing levels will elevate costs, BRMA advocates a focus on enhancing and improving current contract processes. After reviewing a variety of both traditional and technologically driven alternatives, BRMA believes that the product that may be the most viable solution in many cases is the master trading agreement approach (also known as global trading agreement, or relationship agreements). In general, a master trading agreement would be a separately negotiated contract, which would consist of relationship clauses that are not unique to a specific reinsurance contract, but instead unique to a reinsurer and cedant. These relationship clauses would address how the cedant and the reinsurer(s) will interact in various circumstances, e.g. dispute resolution, offset, and insolvency security approval (collectively Relationship Clauses ). By definition, Relationship Clauses are not deal- specific and do not relate to the economic terms of any individual contract. The exact clauses that would be included in a master trading agreement would be subject to mutual agreement between cedant and Page 5 of 7

6 reinsurer and the relationship clauses mutually agreed upon may or may not be the same as other reinsurers on the same program with the same cedant. To the extent that the master trading agreement does not contain a particular clause (or if some reinsurers on the treaty are not party to a master trading agreement), the reinsurance contract would contain the relevant clause (such as an arbitration provision). By agreement, the clause in the master trading agreement could supersede the corresponding clause in the reinsurance contract for that reinsurer or vice versa as appropriate to the relationship between the parties. What is most important is that these master trading agreements are clear as to how the supplemental document terms relate back to the master trading agreement. The master trading agreement would facilitate the negotiation and agreement of Relationship Clauses during non-peak periods. This negotiation could be done either en masse for all reinsurers involved in a particular cedant s reinsurance agreement(s) or individually with each reinsurer. Under either approach, the cedant and the reinsurer(s) can agree to a set of relationship clauses that would apply to every transaction between them (unless they specifically agreed to exclude a particular transaction from the master trading agreement). Once in place, the master trading agreement would remain static unless the parties wished to amend it to address a change in their relationship or market conditions. The master trading agreement would either be incorporated by reference into individual reinsurance contracts between the relevant reinsurer and the ceding company or could be the foundation for each year s contract form and be the master terms that do not require annual review. Of course, in addition to the clauses agreed to by the parties in the master trading agreement, each placement would have its own deal specific economic terms and clauses (such as price, retention, exclusions, business covered, effective dates) that would be negotiated and captured in the reinsurance contract. As the cedant would retain discretion as to the scope of the master trading agreement (or if they even wish to adopt the master trading agreement approach at all), it would seem to require little to no concessions on their part, other than a willingness to approach things in a new fashion. This free option would also provide cedants with several meaningful benefits: Prompt contract execution with its associated benefits to corporate governance and internal controls; Reduced workload during peak periods; Greater consistency of terms across programs; Ability to tailor its relationship and/or security clauses with each of its reinsurers and have concurrency with that reinsurer across all contracts; Specific and deliberate attention to the non-economic clauses may result in fewer and less contentious disputes, particularly if senior executives are involved in the execution of the master agreements. Page 6 of 7

7 Ability to have better dialogue on relationship clauses between ceding companies and reinsurers, often involving senior management of each party. A master trading agreement approach would also provide a variety of benefits to reinsurers and brokers, including: Greater efficiency for all parties More satisfied clients A differentiated product offering vis a vis competitors from other channels Reduced risk of regulatory intervention Reduced disputes and E&O exposure Improved broker/reinsurer working relationships Not only would these benefits come without having to increase staff, but reinsurers and brokers also stand to realize outright economic gains as well. As a simplistic illustration, if the master trading agreement approach results in a 30% reduction in work associated with each subject contract (on an annual run-rate basis), and 50% of the cedants adopt the master trading agreement approach, this would equate to a 15% savings in contract costs. While these figures are purely hypothetical, BRMA believes that economic gain is clearly attainable. Certainly, economic gain is appealing in a challenging market environment. Weighing this alongside the other positives of the master trading agreement product (and the negligible downside), BRMA strongly believes that there is merit in this approach noting that while the master trading agreement approach is a choice of the participating parties, it will be pursued by various members. As a result, a separate paper is being prepared to provide greater detail on the master trading agreement approach and potential implementation strategies for those interested in pursuing. Page 7 of 7