Author:

Hannibal El-Mohtar

 

(Photo attribution: Karolina Grabowska)

 

Despite the tortuous path ahead for the US 2020 election campaigns, and the trials and tribulations of this year, the US-China Phase 1 Trade Deal (the “P1 Deal”) remains in place.[1]

Although commitments under the P1 Deal are only between China and the US, international trade law limits the extent to which benefits under such agreements can be strictly bilateral.

In particular, Most Favoured Nation (“MFN”) requires World Trade Organization (“WTO”) members (like China and the USA) to give all WTO members the same benefits they give to a preferential trading partner.

This might leave some non-US entities with business in China wondering: is the P1 Deal beneficial only for US entities, or do other foreign entities also benefit?

Foreign Insurance Institutions (“FIIs”) especially may wonder: as China begins to further open its financial market, do non-US FIIs have any chance of benefitting from China’s treatment of US insurers, specifically under the insurance heading of the P1 Deal’s financial services chapter (Article 4.6)? If only US insurers benefit, would that be a Global Agreement on Trade in Services (“GATS”) violation, or would it be GATS compliant?

These are thorny legal questions, and answering them begins with a look at China’s commitments under GATS, the P1 Deal’s Article 4.6 insurance heading, and MFN under GATS.

As we will see, China has already voluntarily passed GATS compliant legislation extending one bilateral commitment in Article 4.6 to all foreign investors. It is certainly possible that China will follow a similar course of action with its other bilateral insurance commitments to the US. However, as is often the case with international trade law, whether it decides to do so will depend on both legal and diplomatic concerns rather than solely on legal considerations.

 

I. China’s P1 Deal Insurance Commitments Fall in Line with Prior Plans

 

(Attribution: Adrianna Calvo)

Modernizing and improving China’s insurance sector has been a strategic state goal since as early as 2014, with the passing of the Several Opinions of the State Council on Accelerating the Development of the Modern Insurance Service Industry (2014, the “Opinions”). Among the goals contained within the Opinions is that by 2020, insurance will become an essential means of risk and financial management for government, enterprises, and residents, with specific targets for greater insurance penetration (5%) and density (RMB 3,500 Yuan per person). [2]

In line with these objectives, at the start of the 2020 two sessions (两会, the “2020 Lianghui”) Premier Li Keqiang announced “higher government subsidies for basic medical insurance for rural and non-working urban residents” (third session of the 13^th National People’s Congress). After the end of the 2020 Lianghui, the State Council also encouraged insurers to increase coverage for Chinese exporters and small to medium enterprises impacted by COVID-19 in its Guidelines about Further Strengthening Financial Services for SMEs and Micro Enterprises (Yin Fa 2020 No.120).

Like these more recent measures, many Chinese commitments to US insurers in the P1 Deal also dovetail with earlier Chinese reform plans. The text of Article 4.6 reads as follows:

Article 4.6: Insurance Services

1. No later than April 1, 2020, China shall remove the foreign equity cap in the life, pension, and health insurance sectors and allow wholly U.S.-owned insurance companies to participate in these sectors. China affirms that there are no restrictions on the ability of U.S.-owned insurance companies established in China to wholly own insurance asset management companies in China. 

2. No later than April 1, 2020, China shall remove any business scope limitations, discriminatory regulatory processes and requirements, and overly burdensome licensing and operating requirements for all insurance sectors (including insurance intermediation), and shall thereafter review and approve expeditiously any application by U.S. financial services suppliers for licenses to supply insurance services. In accordance with this commitment, China affirms that it has eliminated the requirement of thirty-years of insurance business operations for establishment of new foreign insurance companies. 

3. The United States acknowledges current pending requests by Chinese institutions, including by China Reinsurance Group, and affirms that such requests will be considered expeditiously.

 

Observers will note that prior to the conclusion of the P1 Deal, the concession outlined in 4.6.1. was already scheduled to be passed. To this end, on December 06, the China Banking and Insurance Regulatory Commission had issued both the Detailed Rules for Implementing the Regulations Administering Foreign-Invested Insurance Companies in the PRC together with the Notice Clarifying the Timeline to Cancel Foreign Equity Ratio Restrictions in Joint Venture Life Insurance Companies. Most importantly, the concession in 4.6.1 was granted not solely to US enterprises (which would be a GATS violation, as we will discuss below), but rather to all foreign investors in China.

The US acknowledging “pending requests by Chinese institutions” in 4.6.3. relates to applications from Citic Group, China Re, and China International Capital Corp (CICC) for licensing in the US.

The only possible friction between China’s insurance sector P1 Deal and GATS commitments would be 4.6.2., where China singles out US firms for what appears to be preferential treatment: “review and approve expeditiously any application by US financial services suppliers for licenses to supply insurance services.”

 

II. The Road to Accession: China Included Insurance in its GATS Schedules of Commitments in 1994 and 2002

 

(Attribution: Manual Joseph)

Would this friction result in a possible GATS violation? Let us first examine China’s GATS commitments. For brevity, the particulars of these commitments are not listed in this article.

China’s first GATS commitments were published in 1994, prior to its accession to the World Trade Organization (“WTO”). A fundamental concept in understanding GATS commitments is the difference between “positive” and “negative” lists. WTO Members use a “positive” list to indicate their specific commitments to provide market access and national treatment in a schedule of commitments (“SOC”). On the other hand, a blanket MFN commitment applies to all areas of GATS, unless there is a “negative” reservation in the form of an exemption (discussed later, together with other exceptions). Whether or not a positive commitment is listed in the SOC, a WTO Member must not discriminate among its trading partners in terms of market access or national treatment.

At the time China made this SOC, foreign insurers had a minimal presence in China. The only FII in China in 1994 was AIA (a subsidiary of AIG), which had established a branch in Shanghai in 1992 (becoming the first foreign-invested insurance entity in the PRC). Later, in 1996, Manulife (a Canadian insurer) set up the PRC’s first life insurance joint venture with Sinochem.

Later, in 2001 China acceded to the WTO and a year later in 2002, China issued another SOC under GATS, leading to further liberalization. The ensuing relaxation of market entry rules ushered in a series of new insurance players in the PRC market. To better understand what this liberalization entailed, by way of overview, we can look at China’s commitments for its four “modes of supply” that took place. These “modes” refer to the four means for supplying services listed in GATS (see GATS I:2). Mode [2] (consumption abroad) became open for all but brokerages (meaning that China still reserves the right to restrict consumption of insurance services from brokerages based abroad). Most significantly, [3] dealing with commercial presence, was opened (but still subject to a number of restrictions). Modes of supply [4] (presence of natural persons) and [1] (cross-border trade) remained “unbounded” (meaning China had made no commitment to liberalize them), but with some exceptions for mode [1].

 

III. GATS MFN Applies to the P1 Deal, and no Exemptions or Exceptions Apply

Under GATS, there are two general, unconditional (with certain exceptions) obligations. The first is MFN, the second is the obligation of transparency. Only the first, MFN, is relevant to this analysis. The operative MFN provision for GATS is:

GATS Article II.1 (Most Favoured Nation)

With respect to any measure covered by this Agreement, each Member shall accord immediately and unconditionally to services and service suppliers of any other Member treatment no less favourable than that it accords to like services and service suppliers of any other country.

The effect of MFN is to forbid discrimination among a Member’s trading partners. For example, if China gives special market access to a US bank, it cannot deny that same access to a Canadian bank (except with some exceptions, discussed below).

Under GATS Article II, the test to determine whether a measure violates China’s MFN obligations is to ask whether it modifies “the conditions of competition to the detriment of like services or service suppliers of any other Member” (Appellate Body Report, Argentina – Financial Services, paras. 6.114-6.115.). Such an analysis must begin “with careful scrutiny of the measure, including consideration of the design, structure, and expected operation of the measure at issue” (Appellate Body Report, Argentina – Financial Services, para. 6.127).

As a result, any favourable treatment afforded solely to the US under the P1 Deal is discriminatory and must also extend to other foreign investors under MFN. For any measure covered by the GATS (in other words falling under the definitions in GATS Article I), a WTO member cannot give favourable treatment to services and service suppliers of any country without immediately and unconditionally giving no less favourable treatment to all WTO members (GATS Article II). This applies irrespective of whether that measure is the subject of a specific commitment in the SOC.

 

IV. Depending on How They Are Implemented, China’s Commitments to the US May Engage GATS and Extend to Other WTO Members

 

(Attribution: Mihai Vlasceanu)

China has already voluntarily extended many of its P1 Deal concessions to all foreigners. Recall that China already granted the concessions in Article 4.6.1 to all foreign insurers, making it GATS-compliant. As of January 1, 2020, all foreign insurers (and not just US insurers) are allowed full ownership of Chinese life insurance companies. Beginning April 1, 2020, this commitment also extends to the pension and health insurance markets. As mentioned in another article, under China’s new Foreign Investment Law, all FIIs will also now be governed by the Company Law of the People’s Republic of China rather than ad-hoc foreign investment laws.

However it remains to be seen whether China’s above commitments under Article 4.6.2 of the P1 Deal will violate GATS. Article 4.6.2, which can be split into two parts, appears to signal an intent to give US firms special treatment. The first part commits China to remove “any business scope limitations, discriminatory regulatory processes and requirements, and overly burdensome licensing and operating requirements for all insurance sectors (including insurance intermediation).” This part complies with GATS. The second, however, requires China to “thereafter review and approve expeditiously any application by U.S. financial services suppliers for licenses to supply insurance services.” This second part strongly indicates an intent to grant preferential, discriminatory treatment for the benefit of US firms.

The question is, will China:

• Extend 4.6.2. commitments to all FIIs willingly, as it did with 4.6.1. commitments
• Overtly discriminate in favour of US insurers (“De Jure Discrimination”) or
• Covertly discriminate in favour of US insurers (“De Facto Discrimination”)?

In the case of [1], there is no MFN violation. This may happen and it is entirely possible for China to formulate regulations in its implementing measures which meet this P1 Deal term while affording equal treatment to other WTO Members.

In the case of [2], De Jure Discrimination, the MFN violation is straightforward and other WTO Members may initiate dispute settlement proceedings under the auspices of the Dispute Resolution Body (“DSB”), and most likely obtain a favorable decision. Chinese authorities are well aware of this and as a result [2] is unlikely.

In the case of [3], De Facto Discrimination, the issue becomes much more complicated and guiding WTO caselaw becomes necessary. In EC — Bananas III, the European Communities argued that MFN under GATS does not extend to De Jure discrimination, only De Facto discrimination. This was rejected (Appellate Body Report, EC – Bananas III, paras. 231-234). Applying the above analysis from Argentina Financial Services, any treatment which modifies the “conditions of competition” against one Member in favour of another falls afoul of MFN. In the Appellate Body (the “AB”)’s reasons in EC — Bananas for ruling against the EC, the AB expressly applied this standard to De Facto licensing discrimination: “various aspects of the EC licensing procedures at issue created less favourable conditions of competition for service suppliers of the complainants’” (Appellate Body Report, EC – Bananas III, see paras. 240-248).

The standard for breaching MFN in this context is low, and there is no separate enquiry into the regulatory objective or concerns behind a measure’s impact on the conditions of competition (Appellate Body Report, Argentina – Financial Services, paras. 6.105-6.106):

This legal standard does not contemplate a separate and additional inquiry into the regulatory objective of, or the regulatory concerns underlying, the contested measure. Indeed, in prior disputes, the fact that a measure modified the conditions of competition to the detriment of services or service suppliers of any other Member was, in itself, sufficient for a finding of less favourable treatment under Articles II:1 and XVII of the GATS.

As a result, if China visibly moves the needle in favour of licensing US insurers, it breaches GATS, but if it does so inconspicuously, it would be insufficient to mount a GATS challenge. If China wishes to grant favourable licensing terms US insurers in a way that does not lead to losing a GATS challenge, it must do so in a manner that is almost imperceptible and at the least, non-provable. For example, any kind of quid pro quo that leads to a US firm being licensed in China shortly after the US licenses a Chinese firm (like China Re, Citic Group, or CICC) would appear transactional, arouse suspicion, and could be challenged as a MFN violation. In challenging any discriminatory treatment, the fact that in the text of the P1 Deal, China’s 4.6.2 commitment (to approve US insurers) immediately precedes the US’ 4.6.3 commitment (to acknowledge the “pending requests” of Chinese insurers) may be used as a smoking gun to show discriminatory intent.

 

Conclusion

Legally under GATS, Chinese concessions to the US must be legislated in ways that do not discriminate between WTO Members. If these concessions instead extend only to the US, or if it is discovered that a government measure in fact discriminates against other WTO Members, then those Members may initiate consultations. Failing consultations, those Members may pursue dispute settlement under the auspices of the DSB.

So far all of China’s measures implementing the Phase 1 Deal appear to have been GATS compliant and have not led to a challenge from another Member.

However, what might possibly occur, and raise questions about compliance with GATS, is a quid pro quo between the Chinese and US administrations. For example, licensing a US insurer in exchange for the US licensing a Chinese insurer. This would be a MFN violation. However, as a form of De Jure Discrimination, such violations are notoriously difficult to prove.

This means that, from an evidentiary standpoint, there is room — however narrow — for China to license US insurers on a preferential basis without demonstrably affecting the conditions of competition in the Chinese insurance market. Nevertheless WTO precedent on the matter is clear and if such De Jure Discrimination were to be proven, it would not be difficult to show that such treatment adversely affects the conditions of competition in violation of MFN. [4]

Although preferential licensing of US insurers is an option available to China, diplomatic considerations will be taken into account on whether or not to pursue it. China voluntarily extended the commitment in Article 4.6.1 to all FIIs, and has been carefully planning this phase in its insurance reform since before the release of the 2014 Policy. It may find that the economic benefits of greater competition and variety in the PRC insurance market are more valuable to its long-term reform plans than the diplomatic points it would gain through a licensing quid pro quo with the current US administration. If that is the case, it would be logical to then also voluntarily extend the commitment in Article 4.6.2 to all FIIs.

 

[1]In fact, damaging floods and spiking corn prices have pushed Chinese importers to buy record volumes of U.S. corn, which could help the government fulfil a pledge under the P1 Deal. See Hallie Gu, Dominique Patton, “Exclusive: China plans wheat, rice sales to tame surging corn prices – sources”, Reuters, July 21, 2020, online: <https://in.reuters.com/article/china-grains-stockpiles-exclusive/exclusive-china-plans-wheat-rice-sales-to-tame-surging-corn-prices-sources-idINKCN24M15C>

[2]Zhen Jing, Chinese Insurance Contracts: Law and Practice, (Abingdon, Routledge 2017) at 23.

[3]There are a few exceptions to the MFN requirement in Article II, none of which apply to the P1 Deal. For one, if the P1 Deal were an Economic Integration Agreement (“EIA”), China could give the US preferential access under GATS Article V. However, in order for an agreement to qualify as an EIA it must, among other requirements, have “substantial sector coverage” under services, GATS Article V. The P1 Deal cannot be characterized as having “substantial sector coverage”, because among other reasons, the P1 Deal does not liberalize all four GATS modes of supply (a key requirement for substantial sector coverage). It also cannot be characterized as a regional trade agreement, which like an EIA could spare China from Article II MFN commitments, because the US and China do not share a border (Article II.3). If either were the case, China could have claimed the right to liberalize its market solely for the benefit of US insurers under the P1 Deal, and not extend that same treatment to all other WTO Members.

A couple of other exceptions are worth reviewing briefly, but they do not apply either. The first is exemptions. A WTO Member may enter reservations to its MFN obligations through MFN “exemptions” in its Annex to the GATS. However, China’s insurance commitments were not exempted in its annex. The only exempted industries are those relating to transportation (maritime, international, and freight and passengers). In other words, under GATS, the Chinese insurance sector (including life, pension, and health insurance) is not exempt from MFN treatment. Second is government procurement: direct purchases of insurance services by the Chinese government are not subject to MFN. It is unclear, however, whether or not MFN would apply to purchases by state owned enterprises (“SOEs”).

 

[4]In 2020, should China continue to go through the motions of showing GATS compliance, though? The WTO does not have any teeth, and cannot enforce any of its decisions. The WTO’s dispute resolution platform also continues to face a crisis due to the US blocking the appointment of AB panelists.

The answer is most likely yes. Unfavourable rulings do carry consequences. They sometimes lead to countermeasures from trading partners and continue to carry weight in international diplomacy. Members prefer to avoid unnecessary pressure from other Members, and it is unlikely China will overtly ignore GATS rules.

 

Have questions about accessing China’s insurance market? Anjie is a Chambers ranked, Band 1 law firm for PRC Insurance law, and has the largest insurance practice in mainland China

Feel free to send consultation requests to An Na (anna@anjielaw.com) or An Chencheng (anchencheng@anjielaw.com).

Authors: Wan Jia, Liu Sichen

I. The Background Information of the Raised Question

The rapid spread of the COVID-19 pandemic has left a huge impact on business operations worldwide. For many companies, a business interruption (“BI”) that could result from this impact is a hazard which features among their greatest operational risks this year.

Although many companies are insured against BI, their coverage under their insurance policies may not extend as far as they believe. In legal practice, the question of whether BI caused by the infectious diseases is covered by a BI insurance policy provided has given rise to great controversy.

The mainstream view holds that BI insurance is generally an additional insurance to “all risk” or other types of property insurance, therefore only those losses consequent on property damage are covered by BI. However, if there are BI extension clauses such as the infectious disease clause expanding the scope of the covered losses, the BI losses caused by the infectious disease can be compensated based on the relevant applicable extension clause, even if the insured has not suffered from property damage.

Why is compensation under a BI policy be on the condition that “damage to property” has occurred? There are a number of historical and contextual factors behind this rule, and this article sheds some light on them.

II. The reason why the insurer’s BI loss must result directly from “damage to property”

BI in China is considered to be a foreign transplanted product. Most of the mainstream insurance companies in China adopt the terms similar to those in the insurance markets of the UK or the USA.

Taking the BI clause of a large property insurance company in China on record with China Banking Insurance Regulatory Commission for example, article 3 of the clause states that,

“[D]uring the insurance period, where the insured suffered losses on the property used for its business operations due to the risks covered by the main property loss insurance clause (hereinafter referred to as the “property insurance loss”), resulting in the interference or interruption of the insured’s business operations, the loss of gross profit thereof occurring during such indemnity period shall be compensated by the insurer in accordance with this insurance policy. The indemnity period mentioned in this insurance contract refers to the period from the date of the occurrence of the insured property loss, to the insured’s business continuously affected by the insured property loss, but the maximum period shall not exceed the maximum indemnity period agreed in this insurance contract [emphasis added].”

For its part, the London Business Interruption Association (“LBIA”) issued a BI guide which indicates that BI insurance compensates for the indirect losses resulting from direct property damage. In summarizing business interruption insurance liability practice in the UK, the LBIA guide provides that, “the insurer will pay the amount of the Consequential Loss resulting from interruption of or interference with the Business carried on by the insured at the Premises consequence upon DAMAGE to Property used by the Insured at the Premises in accordance with the undernoted definition.”  [1]

1. BI is Established to Cover the Indirect Losses Caused by the Property Losses Which Would Not Be Covered by the Traditional Property Insurance

Traditional property insurance only compensates for the direct property losses of the insured subject matter against the risks within the scope of insurance liability, and the insurer is not responsible for indirect property losses of the insured arising from suspension of production, reduction of production, or business interruption, etc.

At the end of the 18th century and the beginning of the 19th century, after experiencing a significant increase in productivity owing to the Industrial Revolution, business risks increased. Traditional property insurance like all risks insurance, could not cover the indirect losses of profits due to the accidents. The time had come for a compensation policy based on recovery of daily losses. This became the prototype for modern BI insurance.[2]

Another earlier name for BI, Use and Occupancy Insurance, can better reflect its direct relationship with property losses. [3] Under this type of policy, the insurance company shall pay, according to the calculation method agreed in the insurance clauses, for the losses resulted from interruption of the insured’s normal use and occupancy of the insured property because of the insured property risk. Different disputes might arise in different cases because of the specific wording of the insurance clauses, but the general principle is that BI covers losses consequent upon damage to the insured property.

2. The Losses Covered by BI Need to Be Calculated Based on the State of the Insured’s Damaged Property

As discussed, the idea behind BI insurance is to cover the indirect profit losses that result when an insured peril arises. The period of business interruption is the period required to repair or replace the damaged property, namely from the time when the insured must interrupt their business due to the occurrence of the insured accident to the time when the insured resumes business. BI will thereby ensure that the insured can still operate with the same business revenue it would have generated had the accident not occurred. That is, however, the limit of what BI insures: not a penny less, not a penny more. Therefore, the insurable interest of BI is the business profits brought by the insured property.

The above mentioned LBIA BI Guide summarizes the two mainstream calculation standards for UK BI losses as Gross Profit Basis (“GPB”) and Gross Revenue Basis (“GRB”). GBP calculates the losses by including the reduction of turnover and the increase in maintenance costs, and the latter, GRB, calculates the losses by referring to the amount which shall fall short of the Standard Gross Revenue. [4]

In China, the domestic underwriters will generally calculate the insured business interruption losses by referring to the losses during the indemnity period in terms of gross profit. The calculation involves three aspects: the loss of gross profit due to a decrease in operating income, the loss of gross profit due to an increase in operating expenses, and the saved costs because of the insured accident. The sum of the first two minus the amount from the third equals, generally, the gross profit losses that need to be indemnified.

3. Even If there are BI Extension Clauses, the Establishment of Insurance Liability is Still Premised on the Incurred Risk of Losses of Damage to Property

The above calculation of BI losses is based on the premise that the insured property suffered from damage, and that damage led to BI losses. Based on different needs of the insureds from different industries, BI policies often have their respective BI extension clauses to extend the concepts such as the Insureds, Business types, Business Premise, etc., thus covering some circumstances intended to cover by the parties.

Common extensions of BI include Communicable or Infectious Diseases, Denial of Access, and Civil Authority Orders, among others. However, even if the extension clauses are applied to expand the scope of insurable losses, the premise for the establishment of BI liability of the insurer is still that it incurred insured risk of damage to the insured property.

It needs to be added that, in China, most BI insurance clauses provided by domestic insurance companies are as additional insurance  thus making the limit of the indemnity foreseeable. However, BI does not by itself need to be a form of additional insurance by considering its original purpose. If the underwriting risk and the scope of property can be clearly defined in the BI policy, there is no major threshold for the insured to apply for a separate and independent BI policy.

In practice, disputes arising out of BI will also concern the subsequent identification of insured risks, whether BI extension clauses including infectious diseases clause have been triggered, whether the claimed losses are caused by the damage to property, and the specific losses calculation method, etc. However, the premise that needs to be clarified is that BI does not cover all losses due to business interruption, but those losses caused by business interruption due to the losses arising out of the damage to insured property. Otherwise, all unforeseen circumstances that may affect the business of the company will be the cause of possible claims, deviating from the spirit of BI and its coverage of insurance liability.

 

[1]See Guide to business interruption insurance and claims, p5 http://london-bia.org/lectures/LBIABIManual.pdf#:~:text=LBIA%20guide%20to%20business%20interruption%20insurance%20and%20claims,Insured%20DAMAGE%207%20Indemnity%20period%207%20Turnover%208

[2] Tao Cunwen, Geng Yuting, “Overseas Business Interruption Insurance System and Its Enlightenment”, published in Insurance Research, No. 4 of 2008.

[3]Pamela Levin & Thomas H. Nienow, Business Interruption Coverage – Demystifying the Causation Analysis, 24 Brief 30 (1994).

[4]See supra 1, page 13, “Standard Gross RevenueThe Gross Revenue during that period in the twelve months immediately before the date of the occurrence of the incident which corresponds with the Maximum Indemnity Period”

Authors : Wan Jia, Hannibal El-Mohtar

I. Is China’s insurance market worth investing in?

It is no secret that China’s insurance industry presents good upside growth opportunities. According to the 2018 Report on Global Insurance and Market Research released by Allianz Group, “Nearly 80% of the total 60 Billion Euros increase in global premiums came from China, and China witnessed a continuously strong growth momentum in life insurance, replacing Japan and becoming the biggest life insurance market in Asia.”

That many foreign insurers are bullish on China is also nothing new. Last month, the CFO of Manulife Financial Corp said the company would be “very happy” to increase its 51% stake in the Manulife-Sinochem Life Insurance Company Ltd., their joint venture with Sinochem Finance Co. Ltd. As far back as 2018, Sun Life Chief Executive Dean Connor expressed openness to increasing their 25% stake in their Sunlife Everbright Life Insurance joint venture to 51%.

II. What are the new rules on foreign investment for insurance companies in China?

What has attracted the growing interest of foreign insurers are the regulatory changes permitting greater market access for foreign investors.

As of January 1, 2020, foreign investors are allowed full ownership of Chinese life insurance companies. Additionally, in the China-US Phase One Trade Deal (the “P1 Deal”), China also agreed to remove the foreign equity caps for pension health insurance. China also committed to remove all discriminatory regulatory requirements and processes, and expeditiously review and approve license applications from foreign investor.

That’s not to say there’s no uncertainty. In the first four months of 2018, premium income at China’s Life Insurers tumbled by 13.6 per cent year on year for the first four months of 2018, after the industry regulator (China Banking and Insurance Regulatory Commission, “CBIRC”) cracked down on issuing short-term policies it blamed for causing financial instability.

III. What are the growth prospects for Insurtech in China?

“Insurtech” refers to technology used to disrupt or innovate within the insurance sector. One prominent form of Insurtech is Usage Based Insurance (UBI), which relies on algorithms to analyze the insured’s data, together with external information, to generate a bespoke risk score. One UBI example, known as “pay-as-you-drive” insurance, collects mileage information through telematics (including the car’s “black box”) and relays the insured’s driving behaviour to the insurer in real-time.

China is one of the fastest growing Insurtech leaders in the world. Thanks to heavy investment from Alibaba, Tencent, and Baidu, the sector now features an e-commerce ecosystem that is 50 times larger than that of the United States. For those who can capitalize on the growth of the Chinese insurance market, the potential for returns are vast.

This is particularly so for insurers who can move into the e-insurance space. Chinese consumers are leapfrogging traditional written insurance policies and going straight to digital policies, many of them hyper-targeted micro-policies supported by big data gathered from e-commerce giants like Tmall.

For instance, one company, ZhongAn launched four years ago as the first China online-only insurer. It provides a micro-premium model through Wechat, a Chinese social messaging platform similar to Facebook Messenger. It has since sold 6 billion policies to nearly 500 million people, and in Q1 of this year it reported net profits of CNY327m ($46m) for the first three months of this year, outperforming the insurance industry at an increase of 15.6% over the corresponding period last year. Yet, it still only has 1 percent of the market. ZhongAn recently launched a joint venture in Hong Kong and received its online insurance license in May.

Combining the huge consumer base with the heavy investment in e-commence sector, there is imaginable space for Insurtech in China’s future.
IV. Do I need an ICP license to gain access China’s Insurtech market?

A commercial Internet content Provider license (an “ICP”) allows a company to sell to Chinese consumers through a web domain and house the server within China. It is issued by the Chinese Ministry of Industry and Information Technology (the “MIIT”). An ICP a) ensures compliance with Chinese laws internet laws (i.e., gives the investor peace of mind that the site won’t be blocked) and b) allows for faster online service for visitors. Another ICP variant, the Bei’an (filing), also allows foreigners to create a Chinese website, but the Bei’an website may only be used for promotional purposes and does not support online transactions.

As of 2015, foreigners are legally allowed to apply for and hold ICPs through Wholly Foreign Owned Enterprises (WFOEs). See Notice of the Ministry of Industry and Information Technology on Removing the Restrictions on Foreign Equity Ratios in Online Data Processing and Transaction Processing Business (Operating E-commerce) [2015], This means that the Variable Interest Entity (VIE), an oft-used but more complex investment for the Chinese tech industry, is not necessary to obtain an ICP and enter the Chinese Insurtech market.

However, is an ICP truly necessary? Defying the internet laws in China can result in your website being blocked, permanently, among other serious risks to be avoided.

That said, an ICP isn’t strictly necessary to sell insurance products in China. If a foreign insurer wishes to sell insurance products through an existing ecosystem like Wechat, as ZhongAn does, then they may be able to rely on Wechat’s ICP. To do so, they would need to first obtain a WFOE, obtain an insurance permit from CBIRC, and then obtain approval to sell online insurance products from the Insurance Association of China (the “IAC”). Once this permitting process is complete, the foreign insurer can use a commercial Wechat account (“Gongzhonghao” 公众号), or another ecosystem with an ICP, as a platform to legitimately sell localized insurance products.

However, if a foreign insurer wishes to rely on their own platform, then an ICP will be necessary. Selling insurance policies through a mobile application, or processing transactions locally through a website, will both require an ICP.

V. What other key considerations are there for participating in China’s Insurtech market?

Big data is essential to any insurer’s Insurtech strategy, and in the China market that means collecting and storing personal information about Chinese citizens. This engages a bevy of compliance obligations for foreign and domestic insurers alike.

China’s data privacy laws initially followed the US’ more lax approach to privacy protection, but more recently have changed to more closely mirror Europe’s more stringent GDPR rules, and now include strict provisions on privacy, security, and data localization. Under Article 37 of China’s Cybersecurity Law (2017, the “CSL”, English text), Chinese citizens’ personal data, together with critical business data collected during operations in China, must be stored within mainland China, and companies must undergo a security assessment before exporting such data across the border. Also since 2017, rules for the protection of personal data, and responsibility for data protection, are now included within the Chinese Civil Code (Article 111).

There are severe penalties for failure to comply with the CSL. Public security organizations ( police) may levy fines of up to RMB1,000,000 Yuan when service providers infringe on users’ personal data in violation of CSL Articles 22 (malware and remedial measures), or 41–43 (data consent, notice on use and purpose of collection, mandatory breach notifications, and the user’s right to delete or amend personal data on request). Violating CSL Article 27 by “engaging in activities harming cybersecurity” or aiding and abetting the commission thereof results in an equally serious fine. For comparison, the GDPR imposes fines as high as 4 percent of a company’s turnover from the previous year. Personal data privacy and security are increasingly prominent features of digital data compliance regulations around the world, and as we can see, China is no exception.

Recently, additional rules were introduced under the CSL. As of June 1, new rules came into effect (in accordance with the CSL together with the PRC’s National Security Law) in the form of the 2020 Measures on Cybersecurity Review (the “Measures”). Under the Measures, companies buying networking products and services that could affect national security, Critical Information Infrastructure (“CII”) operators, must undergo cybersecurity evaluations for vulnerabilities.

It is unclear which kinds of companies will be designated as CII operators, but companies in the financial and insurance sectors will in all likelihood be affected (and may have their procurements monitored directly by the People’s Bank of China). This is because according to Article 20 of the Measures, products and services that can be reviewed include a wide range of equipment and programs that are essential to providing Insurtech services :
• core network equipment (核心网络设备),
• high-performance computers and servers (高性能计算机和服务器),
• mass storage equipment (大容量存储设备),
• large scale databases and applications (大型数据库和应用软件),
• network security equipment (网络安全设备),
• cloud computing services (云计算服务), and
• other network products that may have an impact on CII (以及其他对关键信息基础设施安全有重要影响的网络产品和服务).

The Cyber Security Office, located within the National Internet Information Office, is to review cybersecurity filings and may review and set other standards and regulations in accordance with the law. Of concern to foreign Insurtech investors, one factor it is allowed to consider in reviewing filings is the “risk of supply disruption due to political, diplomatic, and trade factors” (the Measures, para 9(3)).

Moreover, additional rules are already scheduled for implementation. On October 1, 2020, the Information Security Technology – Personal Information Security Specification (GB/T 35273-2020) (the “PI Specification”) comes into effect and replaces the November 2017 version (GB/T 35273-2017). Under the PI Specification, the definition of “Personal Sensitive Information (“PSI”) is expanded to include information created by the Personal Information Controller (“PI Controller” which is the organization that decides the purpose and ways to process Personal Information, “PI”) which, if leaked or mismanaged, may harm the security, personal reputation, or health of the PI subject (3.2). The definition of “Consent” is narrowed to require clear authorization expressed through an affirmative act, unless implied consent is given (3.6). Importantly for Insurtech investors, User Profiling (“UP”) may not result in discrimination based on ethnicity, race, religion, disability, or disease. PI Controllers also must ensure that their UP does not endanger “national security, honor or interests, incite subversion of state power, instigate secessionist activities, or disseminate terrorism, radicalism, ethnic hatred, violence or obscenity” (7.4). When providing their business functions, PI Controllers must also give users the ability to control the degree and extent of “Personalized Display”: the display of information and search results for products or services based on the individual’s PI, such as their internet browsing history (3.16). PI Controllers with more than 200 employees or the PI of more than 1 million individuals must nominate PI Protection Personnel (PPP) and establish a PI Protection Department (11.1). These rules are not exhaustive, and there are other regulations on PI processing, collecting and storing personal biometric information, third-party connection management, and bundled consent for multiple business functions.

Conclusion

China’s Insurtech market continues to grow at breakneck speed. Foreign insurers are currently underrepresented in this market, even as former market barriers to entry continue to fall. This market presents great potential for foreign insurers, and Western insurers in particular have centuries of experience to share with their Chinese counterparts.
While investing in China is never simple for foreign companies, in light of the 2020 foreign investment reforms it is now without a doubt more practical than ever. A WFOE, the requisite insurance permits, and a Gongzhonghao are now enough for a foreign insurer to get started in China’s Insurtech market. No ICP is necessary; neither is a complex VIE investment vehicle headquartered in the Cayman Islands.

However, in leveraging big data to support their Insurtech operations, foreign investors must take great care to adhere to China’s CSL. Data localization, security review requirements, and increased protections for Chinese citizens’ personal and data privacy together present compliance challenges more commonly seen in Europe with the GDPR. These rules, especially the new rules coming into force on October 1, 2020, may disproportionately affect Insurtech and other investors that rely the most on big data.

Still, sustainable growth, social benefits, and increased competitiveness lie ahead for those willing to seize the opportunities presented by China’s Insurtech market. Organizations that are slow to embrace these new opportunities may later find it harder to enter the Chinese market due to increased competition. As home grown Chinese Insurtech companies expand abroad, established insurers who overlook the Chinese market may also find it harder to compete and retain their existing prominence in the global market.

Authors: Zhan Hao、Wan Jia

 

In the beginning of 2020, Luckin Coffee event brought the attention from the insurance, legal and security industries to the directors and officers liability insurance policy (“D&O”) in China. In this event, Luckin Coffee, which is listed in the US and called Chinese Starbucks, found trapped in the security fraud scandal, and some class actions have been filed in the US against Luckin Coffee and its officers.

When Chinese society found D&O insurance coverage behind those American litigations, Luckin Coffee event inspired curiosity towards to D&O insurance, and insurance sector quickly remembers this transplanted product.

 

The uneven road for D&O insurance in China

During the previous years, D&O insurance actually has been lukewarm in China market after its first appearance around two decades ago, and the patronage to this transplanted insurance product has been limited to Chinese companies listed in the overseas security market or some financial institutions under the stringent scrutiny from China regulator.

The reason for such embarrassing performance is obvious, which is relevant to the loophole in PRC legislature about the liability of corporate directors and officers.

First, even though some simple and general provisions exist in PRC Company Law to address the loyalty and diligence responsibility for directors and officers, but the lack of the concrete guidelines and detailed penalty usually results in the fact that rare claims have been filed towards directors or officers in reality. The derivative action has been injected into the docket of Chinese tribunal for quite some years, but the practicality of action is so premature that potential plaintiffs are hesitant to file a real action against those directors and officers.

Second, the governance structure of some companies is abused by the majority shareholder or actual controller, who would ignore the interest of minority shareholders or beneficiaries, and let alone the creditor’s right. When the majority shareholder or actual controller pull strings behind corporate mask, directors or officers are manipulated, and this multifaceted tragedy stop victims from claiming damages for directors or officers.

Third and last, the precondition for the security fraud litigation, which requests the regulatory penalty be imposed to swindler before the civil actions, has hider Chinese security investors from filing litigation during the past years.

To perfect the directors and officers liability, improve the corporate governance structure and address the protection towards investors, the hail for claim to directors and officers is loud, but the business volume for D&O underwriter has been miserable.

Coincidentally, in 2020 China D&O insurance market comes across two events, the revision of Chinese Security Law and Luckin Coffee event, which are beneficial for the take-off of D&O insurance.

The newly revised Chinese Security Law strengthens the liability for directors and officers, and this revision possibly leads to the increase of claims under D&O insurance, or at least in theory.

Luckin Coffee event dominated the headline of Chinese media for almost two weeks after it announced that its COO committed fraud, and the news ranges from the fraudulent details, China security authority denouncement and D&O insurance coverage. Even under the background of corona viruse, Luckin Coffee stimulates the fierce discussion among the insurance, legal and security circles in China.

Factually, D&O insurance goes to the spotlight this time, but there are not many people know that D&O coverage has been litigated quite some times in Chinese courts, while most of litigations did not go into public due to settlement. The disputed issues about those D&O insurance cases are comprehensive and of interest worth being noted.

 

The scope of insureds

One of the disputed points is about the scope of the insureds. In some countries outside China, there are three D&O models, called side A, side B and side C.

Side-A provides coverage to individual directors and officers when their losses are not indemnified by the company as a result of law prohibition or financial incapability of the company. However, exclusions may apply if a company simply refuses to pay the legal costs of a director or officer. Side-B provides coverage for the company (organizations) when it indemnifies the directors and officers (corporate reimbursement). Side-C provides coverage to the company (organizations) itself for security-related claims brought against it.

In China market, all those three coverages could be found. With respect to Side-B policy, the insureds are the companies rather than individuals. The occurrences regarding D&O often are about the scandals of China-domiciled corporations, which have been listed in American stock market, but were involved in security fraud, and aroused class actions in the US. For most cases, the final controller for such listed corporations are Chinese citizens or residents, but some CEO, CFO and COO are not Chinese citizens or residents. Thus when facing investigation or class action, the final controller sometimes chose to ignore the claims or investigations simply since the controller has no intention to sustain the corporation, but those directors and officers could not afford such ignorance. After paying for legal costs in the action against directors or officers on their own, directors or officers could not find or force corporation to reimburse themselves. When they approach Chinese insurers for insurance compensation, it is not a surprise to expect the refusal because those individuals are not insureds under Side-B policy.

 

The disclosure duty of applicant

In accordance to Article 16 of PRC Insurance Law, the insurance applicant shall fully disclose the risks relevant to the contemplated policy. Different from the other jurisdictions, PRC law only requests applicant to answer the specific inquiries from insurer. Without inquiry, even if applicant might know the potential exposure to risk, it is not obligatory for applicant to disclose such information. With respect to the D&O insurance sold in China market, the majority of applicants bought policy through brokers, and actually brokers handled the inquiry procedure and collected the disclosed information. Since China law does not allow the general inquiry from insurer, how to construct the valid and specific inquiries would be challenging to insurers and its agents.

The rhetoric issue always trigger dispute about the contents of disclosure, and it finally touches the utmost good faith doctrine in PRC Insurance Law. Among the often-asked questions by insurers, how to interpret the previous circumstances before the policy inception, how to define the information known or should have been known by applicants, and how to verdict the violation of Sarbanes-Oxley Act are focuses for the confrontation between insured and insurer. Since those D&O insurance policies are governed by PRC law, but their wording is full of jargons extracted from American law in the meantime, naturally the interpretation of policy also becomes hot debate in court trial.

For the information already known or should have been known by insurer, applicant is not obligatory to disclose such information to insurer. Some interesting episodes were about US investigation, which was denied to be known by applicant during the process of insurance application, but in fact the investigation information had been public in the website of SEC or other sources before policy inception. Should those imputed information be deemed as being known by insurer already, or would tribunal could impose a duty of due care to Chinese insurers to scrutinize the foreign authority websites in English?

 

The conflict and connection for the different layers coverag

In China market, some D&O policies are in the form of excess insurance, in which the primary insurer is first responsible for defending and indemnifying the insured in the event of a covered or potentially covered occurrence or claim. An excess policy provides specific coverage above an underlying limit of primary insurance. The dilemma for such multiple layers insurance is the primary insurer is foreign one, but the second or above insurers are Chinese ones. The second or above layers insurers shall follow the indemnification decision from the underlying layer insurer, or they could make decision at their own discretion?

Things would be more complicated if the different layers policies use laws from different jurisdictions as governing laws.

During the previous cases, tribunal preferred to take approach in which upheld the different layer insurers to have independent decisions to handle the claim unless otherwise stipulated in the policy.

 

The separation of liabilities

If one specific officer fails in his/her disclosure obligation or triggers the exclusion clause such as intentional act, could it excuse insurer from liability to other insureds? In most D&O policies, there are clauses to separate the insurance liability among the insured directors or officers, but those standard clauses encounter lots of challenges in trail. It is hard to believe that a CEO’s fraudulent behavior could be segregated from other subordinate officers, or a CFO could make fraudulent financial statements without approval or knowledge from the directors or CEO.

In those scenarios, how to allocate the burden of proof between insured and insurer would be of essence for trial result. It is obviously unfair to impose a higher standard of burden of proof to insurer, who is an outsider to a corporation. In the meantime, the absence of discovery procedure in China litigation disables insurer with practical means to discern the real picture of fraud, to clearly figure out the collusion of directors and officers.

Some desperate insurers want to depend on the police to dig out the fraud details, but Chinese police seldom investigates the suspected crime because the suspected crime happens outside of China, and victims usually are not Chinese citizens.

Today, accompanied by the security law amendments and some fraud occurrences, D&O insurance stumbles to spotlight again after a long period of silence in China. With the developing pace of security market and insurance market, the refreshed D&O insurance gives imagination to Chinese underwriters.