This country-specific Q&A provides an overview to insurance and reinsurance laws and regulations that may occur in Ireland.
This Q&A is part of the global guide to Insurance & Reinsurance (3rd edition). For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/insurance-and-reinsurance-3rd-edition
How is the writing of insurance contracts regulated in your jurisdiction?
There is no statutory definition of a contract of insurance under Irish law. The law in relation to insurance contracts in Ireland is primarily governed by common law principles, the origins of which can be found in case law. The Irish courts have addressed this issue on a case by case basis. The decision of the English courts in Prudential Insurance Company v Inland Revenue Commissioners  2 KB 658, which sets out the elements of an insurance contract, is the seminal English case in this area and is of persuasive authority in Ireland. The cumulative test in the Prudential case can be summarised as follows:
- The contract must provide that the insured, in return for consideration, will become entitled to something on the occurrence of some event.
- The event must be one that involves an element of uncertainty.
- The insured must have an insurable interest in the subject matter of the contract.
The Central Bank of Ireland (the “Central Bank”) is responsible for the prudential regulation of (re)insurers and intermediaries operating in Ireland. The Central Bank regulates the pursuit of (re)insurance business, rather than simply the issuance of insurance contracts. An insurer must seek authorisation for the specific classes of insurance business it intends to underwrite. There are 18 classes of non life insurance business and nine classes of life insurance business as set out in Schedules 1 and 2 of the European Union (Insurance and Reinsurance) Regulations 2015 (the “2015 Regulations”). A reinsurer can seek authorisation for life (re)insurance business, non life (re)insurance business, or both.
Generally speaking, the Central Bank has no involvement in supervising the writing of insurance contracts and insurers retain significant freedom of contract. It should be noted that the Central Bank does not require the submission of product documents by insurers operating in the Irish market. However, the Central Bank may, from time-to-time, request that an insurer provides its general and special policy conditions, scales of premiums and other documents which the insurer uses in its dealings with policyholders. The Central Bank may request such information in respect of an insurance contract in order to verify its compliance with applicable requirements.
The Central Bank undertakes ongoing reviews and assessments of a (re)insurer’s corporate governance, risk management and internal control systems. The Central Bank regularly conducts themed inspections across the industry.
Are types of insurers regulated differently (i.e. life companies, reinsurers?)
The 2015 Regulations provide the regulatory framework for the undertaking of life insurance, non-life insurance and reinsurance. Whilst the Central Bank is consistent in its approach to supervision of these entities, in light of the differences in the nature of business carried on by each of these types of entities, the 2015 Regulations, together with the Insurance Acts 1909-2011, make certain distinctions between the carrying on of non-life insurance, life insurance or reinsurance business.
The Central Bank operates Probability Risk and Impact System (“PRISM”) which is a systemic risk-based framework against which the Central Bank assesses supervisory requirements i.e. entities that are categorised as being high-impact under PRISM are subject to a higher level of supervision by the Central Bank. Regulated firms are categorised as high-impact (including ultra-high), medium-high, medium-low or low. The ratings are set according to the systemic risk posed by regulated entities, and firms are assigned one of the categories set out above. PRISM allows the Central Bank to recognise a firm’s potential impact and probability for failure and allocate supervisors accordingly. High-impact firms are the most important for ensuring financial and economic stability and are therefore subject to a higher level of supervision.
Are insurance brokers and other types of market intermediary subject to regulation?
The Insurance Distribution (Recast) Directive 2016/97 (the “IDD”), which introduced significant changes to the (re)insurance mediation regime across the EEA was transposed in Ireland on 1 October 2018 by the European Union (Insurance Distribution) Regulations 2018 (the “2018 Regulations”). Under the 2018 Regulations, a person or an entity cannot undertake or purport to undertake (re)insurance mediation unless they are registered as a (re)insurance intermediary or are exempt from registration. Currently, an applicant can seek registration as a (re)insurance intermediary and must submit an application to the Central Bank in the prescribed format together with all supporting documents that the Central Bank requires. Similar to an application for authorisation as a (re)insurer, a business plan and a detailed programme of operations is submitted to the Central Bank. The Central Bank aims to assess the application within ninety working days of receiving the complete suite of documents. Similar to (re)insurers, holders of certain key posts in (re)insurance intermediaries are subject to pre-approval by the Central Bank in accordance with its fitness and probity regime. On applying to the Central Bank to be registered as an (re)insurance intermediary, the applicant must satisfy a number of criteria, which includes the holding of minimum levels of professional indemnity insurance and maintenance and operation of client premium accounts.
The Central Bank maintains registers of all registered (re)insurance intermediaries authorised by the Central Bank. Intermediaries are generally ranked as ‘Low Impact’ under PRISM, the Central Bank’s supervisory framework, and are subject to a lower level of supervision than imposed by the Central Bank on (re)insurers.
While the definition of insurance distribution in the 2018 Regulations is broad, there are some notable exceptions. Insurance distribution does not include:
- the provision of information on an incidental basis in conjunction with some other professional activity, as long as the purpose of the activity is not to assist a person to enter into or perform an insurance contract;
- the management of claims of an insurer on a professional basis, or loss adjusting, or expert appraisals of claims for insurers;
- the provision of data and information on potential policyholders to (re)insurance intermediaries and (re)insurers where no additional steps are take to assist in the conclusion of the contract; and
- the provision of information about (re)insurance products from a (re)insurance intermediary or (re)insurer to potential policyholders, provided that no additional steps are taken to assist in the conclusion of a (re)insurance contract.
Ancillary insurance intermediaries are exempt from registration under the 2018 Regulations provided that the insurance distributed is complementary to the good or service provided by the ancillary insurance intermediary and covers:
(a) the risk of breakdown, loss of, or damage to, the good or the non-use of the service supplied by that provider; or
(b) damage to, loss of, baggage or other risks linked to travel booked with that provider, and
the amount of the premium paid for the insurance product does not exceed €600 calculated on a pro-rata annual basis, or does not exceed €200, where the duration of the service is equal to or less than 3 months.
The EU Regulation on Key Information Documents for Packaged Retail and Insurance-Based Investment Products (EU 1286/2014) (the “PRIIPs Regulation”) came into effect in Ireland on 1 January 2018. It mandates that a standardised key information document (“KID”) be provided by those manufacturing or distributing packaged retail and insurance-based investment products (“PRIIPs”) to retail investors before concluding a contract for a PRIIP. To the extent that an intermediary manufactures a PRIIP, they are responsible for producing the KID and ensuring that it is accurate and up to date. Intermediaries that advise on or sell PRIIPs are responsible for ensuring that the KID is provided to the retail investor in good time before the conclusion of the contract. A KID is required for all ‘packaged’ investment products, including insurance-based investment products, investment funds, structured deposits and derivatives. However, intermediaries advising on or selling Undertakings for Collective Investment in Transferable Securities (“UCITS”) funds are exempt from the PRIIPs Regulation until 31 December 2021. In the interim period, such intermediaries are required to continue providing the UCITS Key Investor Information Document (“KIID”) as required under the UCITS Directive to retail investors.
Is authorisation or a licence required and if so how long does it take on average to obtain such permission?
To carry out (re)insurance business in Ireland, a (re)insurer must either be regulated and authorised by the Central Bank or authorised by the supervisory authority in another EEA member state. An EEA direct insurer must also notify its home regulator of its intention to passport into Ireland on either a freedom of services (“FOS”) or freedom of establishment (“FOE”) basis.
There is no prescribed format to apply to the Central Bank for authorisation as an Irish (re)insurer, however the Central Bank has issued guidance on the content requirements of each application type, together with a checklist for completing and submitting the application. Applicants are required to attend an initial meeting with the Central Bank to discuss the proposed business before submitting the full application. The checklist for applications is detailed and the requirements include a comprehensive business plan together with extensive financial and actuarial information for the proposed (re)insurer. Key position holders with the proposed (re)insurer will also be subject to the Central Bank’s fitness and probity regime. The application process is an iterative one and the Central Bank will typically require additional information or clarification and may seek additional meetings with the applicant.
The Central Bank has a statutory six month time period within which to consider a fully completed application for authorisation as a (re)insurer. Once a (re)insurer is authorised by the Central Bank it is licensed to carry on insurance or reinsurance (as appropriate) activity across the EEA. At present, the Central Bank does not charge a fee for licence applications.
A reinsurance provider can establish a special purpose reinsurance vehicle, which provides a quicker and simpler route to authorisation and reduces the extent of supervision by the Central Bank as compared with fully regulated reinsurers.
Are there restrictions or controls over who owns or controls insurers (including restrictions on foreign ownership)?
There are no specific restrictions on the ownership or control of insurance related entities on the basis of nationality or otherwise. However, proposed acquirers who propose to acquire qualifying holdings in an Irish authorised (re)insurer are subject to the mandatory pre approval process as outlined below. Additionally, individuals proposing to act as a director or in certain senior management positions (“pre-approval controlled functions”) in Irish (re)insurers and (re)insurance intermediaries are subject to the prior approval of the Central Bank under its fitness and probity regime. Any person who it is proposed will occupy a pre-approval controlled function must complete an online Individual Questionnaire and be approved by the Central Bank before taking up their position.
The acquisition or disposal of a qualifying holding in a (re)insurer is subject to prior approval of the Central Bank. A qualifying holding is the direct or indirect holding of 10% or more of the share capital or voting rights of a (re)insurer or a lesser holding which allows the acquirer to exercise a significant influence over the (re)insurer. Where an existing shareholder proposes to increase or decrease its holding over or below certain thresholds of 20%, 33% and 50%, a further notification requirement is triggered.
The Central Bank must adhere to statutory based timelines set out in the 2015 Regulations when conducting its assessment of the transaction. The considerations that the Central Bank may have regard to when assessing the transaction are set out in the 2015 Regulations.
Is it possible to insure risks in your jurisdiction without a licence or authorisation? (i.e. on a non-admitted basis)?
In accordance with the EU passporting provisions, an insurer authorised in another EEA Member State can write business directly in Ireland on a FOE or FOS basis. Generally, non-EEA insurers cannot write business directly in Ireland, however, they may apply to the Central Bank for authorisation under the 2015 Regulations which enable third country insurers to establish a branch in the state (“Third Country Branch”). Third Country Branches do not have the right to passport into other EEA member states and so a Third Country Branch that has been authorised by the Central Bank can only carry on business in Ireland. There is a limited exemption available for third country reinsurers i.e. reinsurers authorised outside the EEA. To benefit from the exemption from the requirement to be authorised by the Central Bank, the reinsurer must be duly authorised in their home country and limit their activities in Ireland strictly to reinsurance.
What penalty is available for those who operate in your jurisdiction without appropriate permission?
A (re) insurer that operates in Ireland without the requisite authorisation from the Central Bank commits an offence under the 2015 Regulations. The Central Bank’s Administrative Sanctions Regime provides it with a credible tool of enforcement and acts as an effective deterrent against breaches of financial services law.
Where an offence is committed by an undertaking, and it can be proven that the offence was committed with the consent or connivance, or was attributable in any way to the wilful neglect of a person in management of the undertaking, the Central Bank may prosecute such person, as well as the undertaking. Therefore, a director, manager, secretary, other officer of the company or any person purporting to act in that capacity could be subject to prosecution from the Central Bank for the unauthorised operations of a (re)insurance business.
The penalties which can be imposed by the Central Bank will depend on the seriousness of the offence. If convicted of a summary offence (i.e. a more minor offence) the undertaking and / or relevant person is liable to a fine not exceeding €5,000 or to imprisonment of a term not exceeding 12 months, or to both. On conviction on indictment (i.e. a more serious offence, which operating without a licence most likely constitutes) the undertaking and / or relevant person is liable to a fine not exceeding €500,000 or to imprisonment for a term not exceeding 3 years, or to both.
If an undertaking continues to operate in Ireland without authorisation, the undertaking and / or relevant person will be guilty of an offence for each day on which the contravention continues and liable for a fine of €500 for each such offence.
How rigorous is the supervisory and enforcement environment?
Ireland has a long established efficient prudential regulatory infrastructure that complies with best international standards. The Central Bank is intent on ensuring a rigorous and effective supervisory and enforcement framework is in place. Under the Central Bank’s Administrative Sanctions Regime, the Central Bank has the power, where a breach is identified, to issue a supervisory warning, take supervisory action, agree a settlement, or refer the case to formal inquiry for determination and sanction.
As above, the Central Bank’s prudential supervisory framework, PRISM, focuses on the most significant firms, the risks they pose and the level of damage they could cause to the financial system, the economy and consumers if they were to fail. The Central Bank regularly conducts industry wide thematic reviews.
(Re)insurers are required to make quarterly and annual returns to the Central Bank.
How is the solvency of insurers (and reinsurers where relevant) supervised?
Insurers and reinsurers regulated by the Central Bank are required to meet the capital and solvency requirements set out in Solvency II, as transposed by the 2015 Regulations into Irish law.
To comply with the enhanced Solvency II regulatory reporting requirements in respect of solvency, Irish authorised (re)insurers are required to submit the following information to the Central Bank:
- a solvency and financial condition report (“SFCR”);
- detailed annual and quarterly reports supplementing information contained in the solvency and financial condition report;
- a regular supervisory report, at least every three years, containing specific information regarding the business and performance of the insurer, its system of governance, risk profile, capital management and information relating to its valuation of assets, technical provisions and other liabilities for solvency purposes;
- an annual own-risk and solvency assessment supervisory report, setting out the results of the own risk and solvency assessment performed by the life insurer; and
- other reports required by the Central Bank.
What are the minimum capital requirements?
The capital requirements set out in Pillar 1 of Solvency II and prescribed the 2015 Regulations consist of two distinct capital requirements: a solvency capital requirement (“SCR”) and a lower, minimum capital requirement (“MCR”), which are calculated based on the specific risks borne by the (re)insurer and are prospective in nature. The SCR and MCR both represent the capital requirements that must be held in addition to its technical provisions.
A (re)insurer may calculate the SCR based on the formula set out in the 2015 Regulations or by using its own internal model approved by the Central Bank. The SCR should amount to a high level of eligible own funds, thereby enabling the undertaking to withstand significant losses and ensure a prudent level of protection for policyholders and beneficiaries. The MCR should be calculated in a clear and simple manner, corresponding to an amount of eligible basic own funds, below which policyholders and beneficiaries would be exposed to an unacceptable level of risk if the undertaking were allowed to continue its operations.
A (re)insurer must have procedures in place to immediately identify and inform the Central Bank of any deterioration in its financial condition. As such, the reporting requirements in respect of SCR and MCR provide for clear channels by which the Central Bank can monitor the financial state of a (re)insurer. In the event of a breach of capital requirements, the Central Bank will employ an escalating level of supervisory intervention, beginning with the implementation of a recovery plan by the (re)insurer, as approved by the Central Bank. If there is a breach of the SCR or MCR, compliance must be re-established by the (re)insurer within six months or three months respectively, otherwise, the Central Bank may require the (re)insurer to hold additional capital, restrict the free disposal of its assets and ultimately withdraw its authorisation.
Is there a policyholder protection scheme in your jurisdiction?
The Insurance Compensation Fund (the “Fund”) is designed to facilitate payments to eligible policyholders of an Irish or EEA authorised non-life insurer carrying on business in Ireland that have gone into liquidation or administration. The approval of the High Court of Ireland is required for a payment to be made out of the Fund. Where an insurer is in administration, at least 70% of its entire business in the preceding 3 years must relate to Irish situate risk in order to gain access to the Fund. Payments out of the Fund are capped at 65% of the sum due to the policyholder or €825,000 whichever is the less, except in the case of third party motor claims where the Fund will make a payment of 100% of an award. Sums due to a commercial policyholder will not be paid out of the Fund unless the sum is due in respect of a liability to an individual. In addition, policies covering health, dental and life policies are excluded from the Fund.
The Fund is financed through contributions received from non-life insurers writing business in Ireland, who are required to contribute 2% of gross written premium in respect of Irish situate risks to the Fund. The Central Bank is responsible for administering and assessing the financial position of the Fund and determining the appropriate contribution to be paid.
How are groups supervised if at all?
The Solvency II group supervision requirements will apply to any Irish authorised (re)insurer which is a member of a group. The supervision provisions are complex as supervision is required of the group’s solvency, governance and reporting obligations. The level of group supervision by the Central Bank will depend on the location of the ultimate insurance parent. Solvency II provides for the application of a tailored-approach by the local regulator in respect of group supervision.
Where a group is made up of several EEA insurers, one EEA regulator will act as the group supervisor, and the local regulators will be responsible for supervision of the individual entity operating in their respective jurisdiction.
If the ultimate insurance parent is located outside the EEA, the Central Bank is required to ensure appropriate supervision of the worldwide group. This may be done by extending the solvency capital requirements imposed on EEA insurers and reinsurers to non-EEA entities. Alternatively, the Central Bank can adopt “other methods” which ensure appropriate group supervision. Where a third-country has been recognised as having an equivalent prudential supervisory regime to that imposed under Solvency II, the Central Bank may rely on the supervision of the worldwide group by the relevant third-country regulator.
Do senior managers have to meet fit and proper requirements and/or be approved?
Pursuant to its Fitness and Probity regime, the Central Bank has the power to designate certain positions within a regulated firm as being Pre-approval Controlled Functions (“PCFs”). In summary, a PCF is a function through which a person may exercise a significant influence on the conduct of a regulated financial service provider’s affairs. The main implication is that a person in a PCF role needs to comply on an ongoing basis with the Fitness and Probity Standards issued by the Central Bank. The PCF will need to confirm this in writing annually. Also, there is an obligation on PCFs to inform the Central Bank of breaches of financial services law which may be of interest to the Central Bank – this obligation is set out in the Central Bank (Supervision and Enforcement) Act 2013.
The approval of the Central Bank must be sought prior to appointing a person to act as a PCF. Therefore, as part of the Central Bank’s Fitness and Probity regime, all proposed directors and senior management will have to apply to the Central Bank for prior approval.
In order to comply with the Central Bank’s Fitness and Probity standards, a person is required to be:
- competent and capable;
- honest, ethical and act with integrity; and
- financially sound.
The Central Bank has a broad range of powers for the purposes of considering whether or not to approve a person to carry on a PCF and may request that the person or an individual on behalf of the undertaking provide certain specified information to it. An applicant for a PCF role can be required to attend before a specified officer or employee of the Central Bank for an interview.
The Central Bank will be concerned with ensuring that a (re)insurer has the necessary people, skills, processes and structures to successfully manage its business. The Central Bank will typically undertake a detailed review of a (re)insurer’s management structures, board and senior management appointments, key committees and key statutory roles.
Aligned with the Central Bank’s Fitness and Probity regime is its Minimum Competency Code 2017 (the “MCC”). The MCC specifies certain minimum competency standards with which persons falling within its scope must comply when performing controlled functions and/or providing certain financial services, in particular when dealing with consumers. Part 3 of the MCC sets out details on the recognition of qualifications in respect of retail financial products for the purposes of the code. The aim is to ensure that consumers obtain a minimum acceptable level of competence from individuals acting for and on behalf of regulated firms in the provision of advice and information and associated activities in connection with retail financial products.
The Minimum Competency Regulations 2017 are associated with the MCC and impose certain obligations on regulated firms. Among these are requirements to:
- ensure ongoing compliance with the MCC including the requirement to hold internal annual reviews to ensure that employees hold the right qualifications;
- maintain registers of accredited persons;
- ensure that the manner in which product selection processes, information and advice are presented to customers purchasing services and products via online platforms are approved in writing by a person who meets specific standards;
- supervise new entrants and maintain records in respect of those new entrants;
- provide statements of grandfathered status to grandfathered individuals who leave the firm;
- set out conditions that must be satisfied when a prescribed script function is performed on behalf of a regulated firm; and
- maintain records.
Are there restrictions on outsourcing parts of the business?
(Re)insurers are permitted by the 2015 Regulations to outsource many of its functions to a third party service provider or otherwise. In order to do so, (re)insurers must ensure that a written outsourcing agreement is put in place and the (re)insurer maintains proper oversight and supervision of the outsource service provider.
The Central Bank must be notified before outsourcing any activity that constitutes a critical and important function of a (re)insurer. The Central Bank must also be informed by the (re)insurer of any subsequent material developments with respect to any such function or activity. EIOPA defines critical or important functions as those that are ‘essential to the operation of the undertaking as it would be unable to deliver its services to policyholders without the function or activity’.
(Re)insurers are required to have written outsourcing policies in place which clearly define the duties and responsibilities of both parties. An outsourcing agreement must ensure effective access for the (re)insurer, its external auditor and the Central Bank to all information on the outsourced functions and activities and provide permission to conduct on-site inspections. Any outsourcing must not:
- materially impair the undertaking’s system of governance;
- cause an undue increase in operational risk;
- impair the supervisory monitoring of compliance with obligations; or
- undermine the continuous and satisfactory service to policyholders.
How are sales of insurance supervised or controlled?
Irish authorised insurers and EEA insurers operating in Ireland on an FOS or FOE basis are required to comply with the general good requirements, which regulate the manner in which insurers may sell and market insurance products to consumers in Ireland.
These general good requirements for the sale of insurance are set out in the:
(a) Central Bank’s Consumer Protection Code 2012 (published by the Central Bank) (the “CPC”);
(b) The Minimum Competency Code 2017;
(c) Consumer Protection Act 2007;
(d) Sale of Goods and Supply of Services Act 1980;
(e) Equal Status Act 2000;
(f) European Communities (Unfair Terms in Consumer Contracts) Regulations 1995;
(g) European Communities (Misleading and Comparative Communications) Regulations 2007; and
(h) European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004.
Are consumer policies subject to restrictions? If so briefly describe the range of protections offered to consumer policyholders
Whilst consumer policies are not subject to any particular restrictions by the Central Bank, there are a broad range of protections afforded to consumers of financial products under the CPC. The CPC applies to financial services providers regulated either by the Central Bank or by a regulator in another EU or EEA Member State, when providing services to consumers in Ireland on a FOE or FOS basis.
The CPC requires regulated entities to act honestly, fairly, and in the best interests of the consumer and the integrity of the market. Certain information must be obtained by regulated entities from a consumer prior to providing a product or service, in order to assess the suitability of a product for the individual consumer. This information includes details of the consumer’s needs and objectives, personal circumstances, financial situation and attitude to risk (if relevant). The CPC also sets out the obligations on financial service firms when dealing with consumers in respect of advertising, contacting consumers, claims processing, handling of errors and complaints, maintaining records and providing information on products. In addition, the CPC requires regulated entities to disclose certain information to consumers in respect of conflicts of interest and any remuneration arrangements in place.
Regulated entities may be subject to administrative sanctions by the Central Bank for any failure to comply with the CPC.
Are the courts adept at handling complex commercial claims?
The High Court in this jurisdiction has a specialist court, the Commercial Court, which deals exclusively with commercial disputes. Proceedings are case-managed and tend to move at a much quicker pace than general High Court cases. The time from entry into the list to full hearing varies between 1 week to 4 months depending on the time required for hearing. Entry to the list is at the discretion of the judge and may be refused if there has been any delay. Insurance and reinsurance disputes can be heard in the Commercial Court if:
The value of the claim or counterclaim exceeds €1,000,000; and
The court considers that the dispute is inherently commercial in nature.
The Commercial Court judges place a strong emphasis on mediation and the Commercial Court Rules provide for up to a four-week stay of proceedings to allow the parties to consider mediation.
Is alternative dispute resolution well established in your jurisdictions?
Mediation is now the most common form of dispute resolution in Ireland and since the introduction of the Mediation Act 2017 (the “Mediation Act”) on 1 January 2018, solicitors are required to advise their clients of the merits of mediation as an alternative dispute resolution (“ADR”) method in advance of issuing court proceedings. The Mediation Act requires the solicitor to swear a statutory declaration confirming that such advice has been provided and this declaration must now be filed with the originating document in the relevant court office when issuing proceedings.
The courts cannot compel the parties to mediate disputes; however, in the High Court and Circuit Court, a judge may adjourn legal proceedings on application by either party to the action, or of its own initiate, to allow the pretties to engage in an ADR process. When the parties decide to use the ADR process, the court rules provide that the courts may extend the time for compliance with any provision of the rules. A party failing to mediate following a direction of the court can be penalised as to costs.
Since 8 June 2010, the Arbitration Act 2010 (the “Arbitration Act”) has applied the United Nations Commission on International Trade Law (“UNCITRAL”) Model Law to all Irish arbitrations. The Arbitration Act reduced the scope for court intervention or oversight and provided a more limited basis for appealing awards and decisions than was previously available.
The High Court has powers for granting interim measures of protection and assistance in the taking of evidence, although most interim measures may now also be granted by the arbitral tribunal under the Arbitration Act. Once an arbitrator is appointed and the parties agree to refer their dispute for the arbitrator's decision, then the jurisdiction for the dispute effectively passes from the court to the arbitrator.
A contract that does not contain a written arbitration agreement is not arbitrable and is specifically excluded from the application of the Arbitration Act. The arbitration agreement must be in writing whether by way of a clause in the substantive contract or by way of separate agreement. While Section 2(2) of the Arbitration Act stipulates that such clauses should be in writing, this provision has been given a broad interpretation to include an agreement concluded orally or by conduct as long as its content has been recorded in writing.
Article 34 of the Arbitration Act deals with applications to the court for setting aside an award. The grounds on which a court can set aside an award are extremely limited and correspond with those contained in Article V of the New York Convention, which requires the party making the application to furnish proof that:
(a) a party to the arbitration agreement was under some incapacity or the agreement itself was invalid;
(b) the party making the application was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his or her case;
(c) the award deals with a dispute not falling within the ambit of the arbitration agreement; and
(d) the award is in conflict with the public policy of the state.
What are the primary challenges to new market entrants?
(Re)insurers seeking to establish an undertaking in Ireland are expected to meet certain authorisation standards. Among these is the expectation that a (re)insurer’s “substance” and “hearts and minds” will be maintained in Ireland. To satisfy the Central Bank’s substance requirements, (re)insurers will need to demonstrate that key personnel responsible for the strategic decision making of the undertaking will be located in Ireland. There are no guidelines in terms of the specific numbers required by the Central Bank, as this will generally depend on the nature, scale and complexity of the business. However, the Central Bank may permit a degree of “dual-hatting” of key personnel on a temporary basis, if it has been sufficiently demonstrated to the Central Bank how the role will transition into a full-time position as business need increases.
To what extent is the market being challenged by digital innovation?
Digital innovation is one of the biggest challenges facing the insurance industry in Ireland. As technology advances further, companies are faced with a higher risk of cyber-security breaches. As companies become more concerned with the threat of these breaches, whilst they tend to look more to preventative measures and there is also an increased use of cyber security insurance.
Insurers must implement innovative measures to keep up with the rapid advancement of technology demands of the market that come with that. In addition to the issue of cyber security, the emergence of automation in the workplace will create further challenges and insurers must be creative and innovative with the products they produce to overcome these challenges. Insurers may seek to improve the technology components of their operations.
Over the next five years what type of business do you see taking a market lead?
Emerging Technologies and Risks
Due to the ever-growing influence technology has on the insurance industry, we believe that the market leaders over the next five years will be the companies who embrace the technological changes and steer away from the traditional insurance business model. While new technology has posed significant challenges to the insurance market, we believe it is those who embrace the benefits of the new technology and use it to their advantage in creating new, inventive insurance products who will emerge as market leaders in the coming years.
It is evident that the market for cyber insurance is growing at a very fast pace and is one of the most prominent growth areas in the global insurance market. Fitch have commented that they expect the market for cyber insurance premiums to increase by €20 billion by 2020.
Cyber insurance is growing at a similarly steady rate in Ireland, although it is still quite a new product on the Irish market with an increasing number of Irish insurers offering this type of protection. According to the 2018 PWC Pulse survey, 71% of Irish insurance CEOs believe that the majority of businesses will have cyber insurance in five years’ time. The growth in this area can partly be explained by the introduction of GDPR on 25 May 2018, which saw a significant influx in businesses seeking this type of insurance. The growth of cyber insurance is expected to continue in Ireland over the next few years.
Drones have become a growing area of interest in the insurance industry with new legislation being proposed to tighten existing drone regulations. The Small Unmanned Aircraft (Drones) Bill 2017 introduces an obligation for commercial drone operators to obtain insurance for any liability arising from drone operation and will make it a criminal offence to be commercially operating a drone without having obtained this insurance first. The bill is currently at second stage in Dail Eireann.
The motor insurance industry will face a particularly challenging task with dealing with the emergence of autonomous vehicles. The UK has put forward a new insurance model to combat the issue where both the driver and the driverless technology would be insured under one policy. The Irish legislature have not made any significant steps in tackling the challenge presented but it is likely that they will follow the UK approach. There has not been as much of an emphasis placed on autonomous vehicles in Ireland as, according to the 2018 PWC Pulse Report, most leading Irish insurers do not believe that driverless cars will be widely accepted in Ireland in the coming years and thus may not be focusing on the development of this area.
Developments in M&A
While Brexit and other concerns surrounding the global economy led to a decrease in insurance M&A in the past number of years, according to the 2018 PWC Pulse Report, one in 16 Irish insurance leaders believe that a merger or acquisition will be their largest opportunity for growth over the next three years and the insurance M&A market seems to be more buoyant in recent times.
Developments Related to Third-Party Funding
The Irish Supreme Court, in the case of Persona Digital Telephony Ltd & Another v. Minister for Public Enterprise, affirmed the fact that third-party funding of litigation is not authorised by law in this jurisdiction. They further held that due to the separation of powers, any changes to the existing law with regards to this is a matter for the legislature to deal with, not the courts. However, the Irish High Court has previously confirmed that after-the event insurance is valid which now makes it the only lawful third-party funding in Ireland. The English market has witnessed a significant growth in after the event insurance in the past year.