Insurance Law Alert

Coronavirus: what are the legal implications?

As the 2019 Novel Coronavirus (“COVID-19”) continues to spread across the world, and governments and health authorities work to defeat it, businesses are facing weakened financial markets, as well as disruption to workplace operations and business pipelines due to restrictions to the mobility of people and goods.

Major economies are experiencing mounting pressure as consumer spending, production and investment are drastically curtailed due to virus-related risks. While the primary focus of any business will be on ensuring the health and wellbeing of staff, businesses are facing an increasing number of challenges that need to be addressed and mitigated. The legal implications are wide-ranging and complex.

Many companies are facing significant and urgent business and legal challenges including:

  • How to renegotiate or terminate contracts where the activity in question is no longer commercially viable
  • Available options should businesses have difficulties in fulfilling their existing contractual obligations because of business disruptions
  • Invoking force majeure clauses
  • Ensuring steps being taken to safeguard employees are also meeting key obligations under relevant laws
  • Options available to companies when core supply chains are disrupted
  • Renegotiating lending terms or applying for bridging or emergency funding, should it be necessary

While the situation is unprecedented, many of the answers lie in long-standing general laws and regulations, including those related to public health and work safety, as well as emergency measures recently issued by governments to specifically deal with the outbreak.

There is huge uncertainty as to the course that Coronavirus will take, but uncertainty is not a justification for companies and their directors to ignore the threat posed by the virus. Planning must include how to handle existing transactions that may be at risk from the virus, as well as the protections required in transactions being negotiated now.

As the WHO declares the COVID-19 outbreak a pandemic, businesses operating in ALL countries, not just hot spots need to be prepared.

How MDM Law firm can help you

The coronavirus is going to present significant operational and commercial challenges to every business. Every company will face difficult decisions. In addition to making our own business continuity preparations, we have also been preparing our team to ensure we are ready to apply our expertise to support our clients however and wherever that may be needed. Please read our latest analysis on the impact of coronavirus through MDM Law firm Coronavirus Resource Center. On this page we will be providing regular legal updates on issues affecting our clients’ businesses in Italy and around the world.

This is what we do, we provide proactive advice to support our clients in their time of need. Please allow us to help.

We will keep you updated with any significant updates or changes in our approach and of course, we wish you, your colleagues, friends and family well during this time.

To discuss the business and legal implications for your company, please get in touch with your usual MDM Law firm contact or use our contact form.

Brexit: Italian measures for UK insurers and intermediaries

The Italian Government approved a draft law decree aimed at ensuring financial stability and market integrity in the event of hard Brexit (the “Decree”). The final version of the Decree is expected to be issued soon and will enter into force upon the publication on the Official Journal. Amendments in the final version of the Decree cannot be excluded at this stage, but significant deviations from the below are not expected as the Decree was presented and approved on the same day.

1. Cancellation from the Italian IVASS Registers and business interruption

In relation to UK insurance undertakings and intermediaries, these are the main provisions of the draft version of the Decree examined by the Government yesterday:

UK insurance undertakings and intermediaries that are allowed to carry out business in Italy under freedom of services and right of establishment will be required to interrupt any activity in Italy upon hard Brexit save for, respectively, a 18-month run-off period (unless IVASS grants an extension upon specific and motivated request to be submitted in advance) and a 6-month run-off period. In these periods insurance undertakings and intermediaries respectively are only authorized to manage the existing business and insurance covers, without the power to underwrite/distribute new business.

2. Disclosure requirements to existing policyholders, insured and beneficiaries

Within 15 days from the entry into force of the Decree, UK insurance undertakings and intermediaries must inform policyholders, insured persons and beneficiaries about their operational regime in place and of any actions taken to ensure the orderly closure of the existing contractual relationships, even if they already communicated to IVASS the contingency plan they intended to adopt in compliance with the previous regulatory requirements and guidelines.

3. Communication to IVASS

Within 90 days from the entry into force of the Decree, UK insurance companies must file with IVASS an action plan for the effective management of the insurance policies in place during the transitory period, including the payment of claims.

4. Right of withdrawal from existing contracts

Starting from the date of the exit of the UK from the EU, Italian policyholders of insurance contracts issued by UK insurance undertakings are allowed to withdraw from their policies having a duration longer than 1 year without any penalty, by sending a written communication to the insurer. Tacit renewal clauses will no longer be effective as of that date.We remain at your disposal for any clarification you may need.

New IVASS Regulation on transparency, advertising and creation of insurance products from 2019

Following the incorporation into Italian national laws of the Directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance distribution IVASS (the Italian insurance regulator) has issued the new Regulation no. 41 of 2 August 2018 on disclosure, advertising and creation of insurance products matters (the “Regulation”), applicable from 1 January 2019.

The Regulation is aimed at reviewing and amending the regulatory provisions contained in IVASS Regulation no. 35/2010, and provide a standardised base pre-contractual document for each insurance product category that will replace the standard Informative Note (Nota Informativa) as follows:

  1. the IPID (Insurance Product Information Document) for non-life products;
  2. the so called Life DIP (Documento Informativo Pre-contrattuale Vita) for life risk insurance products (provided by the Italian Insurance Code as an Italian peculiarity); and
  3. the KID (Key Information Document) for insurance based investment products as provided by the EU regulations.

In addition, IVASS introduces a supplementary standardized pre-contractual document to be delivered to potential customers together with the base documents, the so called Supplementary DIP (“DIP Aggiuntivo”) aimed at collecting information which is supplementary and complementary with respect to the information contained in the base documents, in order to ensure a more detailed knowledge of the product and to guide the client toward an informed decision on contractual rights and obligations.

New Rules on Insurance distribution from 2018

Following the approval of the Directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance distribution (recast) it is now time to assess the aim of such Directive, taking into account that EU countries shall incorporate it into national law by 23 February 2018.

In detail, it aims to improve the way insurance products are sold so that they will bring real benefits to consumers and retail investors in the EU.

Under the new directive on insurance distribution, consumers and retail investors buying insurance products or insurance-based investment products will benefit from greater transparency of insurance distributors with regard to the price and the costs of their products, so that it is clear to consumers what they are paying for.

In addition, consumers should benefit from a better and more comprehensible information, so that consumers can take more informed decisions, with a simple, standardised Insurance Product Information Document (IPID) for non-life insurance products.

Furthermore, where insurance products are offered in a package with another good or service, for example when a new car is sold at a bargain price together with motor insurance, consumers will have the choice to buy the main good or service without the insurance policy.

New rules on transparency and business conduct should prevent consumers from buying products that do not meet their needs. These rules now also apply when a product is bought directly from an insurance company, and not only (as in the past) when products are bought via intermediaries such as agents or brokers.

There are stronger safeguards for the sale of life insurance products with investment elements, such as unit-linked life insurance contracts. Insurance distributors selling such products have to make sure that the product is suitable with regard to the customer’s financial situation, investment objectives and experience in the investment field.

Insurance distributors will benefit from fair competition on a level playing field and an improved legal framework for cross-border business.

The directive recasts and replaces Directive 2002/92/EC on insurance mediation with effect from 23 February 2018.

The Directive applies from 22 February 2016.

Green paper on retail financial services and insurance

The European Commission has published a roadmap concerning its forthcoming Green Paper on retail financial services and insurance. The roadmap notes that the Green Paper, when published, will seek stakeholders’ views on how to bring about better outcomes for consumers and firms in terms of better access, more transparent markets, increased competition as well as greater consumer choice and improved consumer protection (on a domestic and cross-border level) in an increasingly digital environment. In particular, the paper will seek to identify the barriers in the market and investigate the means, including the state of the art technological and innovative solutions, to further improve the functioning of the EU Single Market for providing, purchasing and using retail financial services and insurance.

See Commission roadmap on Green Paper on retail financial services and insurance, 2 September 2015.

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