Simon Phillips
Barclays Corporate & International Banking

Regulators across the EU are taking diverging approaches to the level of capital they are expecting captives to hold post-Solvency II, says Simon Phillips of Barclays

What impact has Solvency II had on captives?

Captives in EU jurisdictions and those that have achieved or sought equivalency have to comply with the new capital rules that Solvency II brings. We are aware of differences in interpretation and application of the rules by different jurisdictions, suggesting that careful analysis of each regulator’s position in respect of Solvency II is required.

What challenges are captives facing?

The additional requirements for compliance with Solvency II place an extra burden on the captives, or rather on the captive managers, and it seems likely that there may be pressure on the fees that captive managers wish to charge for their services. We have also observed in one particular jurisdiction where there are no sufficiently rated banks to keep the capital requirement at a reasonable level that those captives are seeking to hold their capital elsewhere in the EU with an adequately rated bank.

Many countries will be expected to subscribe to the base erosion and profit shifting (BEPS) framework that has been put together by the Organisation for Economic Cooperation and Development (OECD), which will involve enacting or adjusting local legislation. However, the framework is not reflective of the unique position that captives are in and further consultation is likely.

Has there been any negative impact on captives since the implementation?

The additional burden on reporting is not consistent across the EU, with some regulators expecting captives to report the detail of a fully blown insurance company rather than reflecting the single parent, mostly single insured, nature of the insurance vehicle.

When looking at the impact of the increase in UK insurance premium tax on UK insurance transactions, it is expected that there will be reviews of the number and scale of transactions that some companies put through their captives.

With Solvency II came increased capital requirements for insurers. Have captives struggled with this at all?

It is possibly too early to say whether captives are struggling with the increased capital requirements and certainly the impact on their profitability and operations will be observed as the new regulations rally take effect. Again, the attitude of the regulators to these new rules will be a key consideration for captives.

What are the advantages for captives domiciling in the EU?

The advantages for captives domiciling in the EU are unchanged with the ability to issue compliant documentation across the entire market being the most prominent benefit. These should be weighed against the increased cost of Solvency II compliance.

At Barclays, what feedback have you received from clients and their experiences?

The main observation we have is that the regulators in the different jurisdictions are taking different approaches to the level of capital they expect captives to hold. The captive managers are certainly heavily involved in pulling together the Solvency II reports and therefore have an interest in understanding and comparing compliance requirements across jurisdictions.

In addition, for Barclays, it is likely that there will be additional reporting requirements for assets held within investment portfolios that we manage for our captive clients.

Are there any implications for captives following the project initiated by the OECD around BEPS? What should they be working on?

Many corporate structures are open to scrutiny as to their true purpose, with a particular focus on whether they are primarily being used to mitigate tax, even if this is within the letter of the law.

As we know captives do have a very important part to play in the management and transfer of insurance risk, and from a BEPS perspective, there a number of key points captives should consider:

• Substance: does the captive have appropriate resources to support the risk it is writing in the jurisdiction where it is based?
• Capitalisation and pricing: is the captive appropriately capitalised for the business it is writing and are the risks priced appropriately?
• Governance and control: are the decisions being taken by the appropriate people in the right jurisdiction and where are those risks being managed?
• Business purpose: what value does the captive bring and is it involved in writing appropriate risk for the owners and shareholders in line with their activities?
• Documentation: this point really brings together all the previous points in ensuring that everything the captive does is appropriately documented, in particular any decisions that are taken.

So, BEPS for captives is relevant, but should not hold any concerns for captives that have been formed for appropriate insurance or risk transfer reasons.

The important factor is making sure that the structure, business written and governance around the captive clearly demonstrate that the captive does have a clear commercial and economic purpose, which is supported by the right resources.

The latest interviews from Captive Insurance Times
The latest features from Captive Insurance Times
Jeremy Colombik of MSI and NCCIA chair explains to Becky Butcher that Notice 2016-66 could be detrimental to not just North Carolina, but other domiciles that are home to smaller captives
Alan Fine of Brown Smith Wallace explains how the industry should proceed after the Avrahami court case ruling
Join Our Newsletter

Sign up today and never
miss the latest news or an issue again

Subscribe now
Dana Hentges Sheridan, general counsel and chief compliance officer at Active Captive Management, provides insight into the differences between business risks and insurance risks
Predicting when interest rates will change is difficult, which is even more reason to maintain a disciplined approach to your investments, according to Stephen Nedwicki of Comerica Bank
Looking ahead to 2018, Phillip Giles of QBE North America predicts continued uncertainty for the healthcare reform
Michael Schroeder of Roundstone explains why transparency, control and cost savings are the secret sauce offered by a medical captive
Attendees of the Guernsey Insurance Forum heard how important it is for different parts of the industry to work together not only to co-exist, but also to collaborate
Captives must demonstrate they are both efficient and cost effective. Colin Freeman and Peter Downey explain what Barclays can do to help
Domicile profiles
The latest domicile profiles from Captive Insurance Times
Tennessee’s governor, commissioner, general assembly and business community have all worked together to create ‘explosive growth’ in the state’s captive insurance industry. Julie Mix McPeak explains more
Newly-appointed chairman of CCIA Michael Maglaras suggests that the future is bright for state’s captive industry
Asset Servicing Times

Visit our sister site
for all the latest asset servicing news and analysis
Although the Isle of Man is currently focusing on updating its regulatory framework, Solvency II, Brexit and the Asian market all hold big opportunities for the island
Debbie Walker of the North Carolina Department of Insurance tells Becky Butcher why the state is among 2017’s standout performers
Experts convene to talk to Becky Butcher about the stability that Guernsey represents in a challenging financial and political environment
In an era of increasing uncertainty, Tamatoa Jonassen suggests that the Cook Islands can be a bridge to financial security in a captive
With a dedicated captive plan in place, the Lone Star State is on the rise, says Josh Magden of the Texas Captive Insurance Association
After 36 years of captive business, Vermont boasts a culture of legislative change, and still has a few tricks up its sleeve. Dan Towle and David Provost explain