Specialist legal advice for insurance buyers, sellers and intermediaries
We provide the full range of insurance-related legal advice for policyholders, brokers, introducers, managing general agents, insurers, captive owners and professional advisers, wherever in the world they are doing business, including:
- Establishing, structuring, merging, acquiring and disposing of insurance operations
- Supporting the development and distribution of new insurance products
- Captives and other alternative risk transfer (ART) opportunities
- Financial services regulation
- Reviewing insuring provisions in agreements with suppliers, customers, distributors, manufacturers, contractors and joint venture partners
- Claims support and policy interpretation for policyholders and their brokers in relation to complex or disputed claims
- Legal support for policyholders and their brokers in the placement of complex policies such as D&O liability, tax liability and environmental liability
- Insurance broker and other service reviews including managing tenders and negotiating service agreements
- Advice on appointed representative (IR) agreements and introducer appointed representative (IAR) agreements
- Transaction support on mergers, acquisitions, disposals, joint ventures and outsourcing arrangements including the development of transaction insurance solutions
- Establishing customer insurance arrangements for retailers, wholesalers, hirers, trade bodies, professional firms and others
- Data protection issues
A captive is an insurance vehicle owned by a non-insurance parent that insures or ‘captures’ the risks of its parent (first party captive) or the risks of the customers of its parent (third party captive). Captives provide a well-established alternative or addition to buying insurance through the traditional insurance markets. We provide a full range of captive advice to organisations and their professional advisers including advice on:
- Captive feasibility to help businesses analyse the cost/benefit of establishing a captive – whether a wholly-owned captive, a cell captive within a protected cell company (PCC) or incorporated cell company (ICC), a mutual or some other form of alternative risk transfer (ART) vehicle
- Financial models, domicile choice, programme structure and policy wordings
- Setting up captive insurance vehicles
- Captive performance monitoring and service provider reviews
- Captive issues linked to business mergers, acquisitions, disposals and joint ventures
Getting corporate, commercial, property and funding deals over the line is never easy. Transactions falter for many reasons – some technical, some financial, some personal. Given this backdrop, it is worth being aware that there are a number insurance-related solutions available that can help to remove potential deal-breakers and enable transactions to go ahead. Such solutions can offer a win-win for both the client (who wants the deals to happen) and transaction professional (who may have fees at risk but, above all else, wants the best outcome for the client).
Our role is to work alongside transaction professionals to review transaction documentation, assess their clients’ transaction risks and advise on the potential for transferring the risks to other parties, including the insurance market. If the client choses to transfer a risk to the insurance market, our role is to assist the client’s insurance broker by checking that there are no unreasonable provisions in the draft insurance policy wording that could prevent the policy from responding to risk being covered.
Risks which are commonly covered by the insurance market are:
- Contingent risks – Insurance can provide cover in respect of risks which the parties to a transaction are unable or unwilling to resolve by way of contractual indemnities. Typically, these include things like ongoing or threatened litigation, planning or employment issues.
- Warranty & indemnity risks – Insurance can provide cover for losses arising from a breach of warranties or indemnities given in M&A transaction documentation and can be for the benefit of either the buyer or seller. Warranty & indemnity insurance is particularly effective where the seller is unable or unwilling to provide full warranty or indemnity protection to the buyer.
- Environmental risks – Insurance can play a role in unlocking corporate, commercial and property deals where there are known or unknown environmental risks linked to the transaction in circumstances where the parties are unable or unwilling to provide acceptable indemnities.
- Tax risks – Insurance can provide cover for the financial impact of a successful challenge by the tax authorities of tax positions adopted in a wide range of corporate, commercial, property and funding transactions.
Other insurance-related support we can provide to transaction professionals includes:
- Advice on insuring clauses – Insuring clauses in major commercial contracts (such as joint ventures, service outsourcing, purchase or supply agreements, distribution agreements, PFI and other infrastructure projects) are not straightforward. Our role is to work alongside transaction professionals to help draft suitable clauses to deal with issues such as liability for premium payments and deductibles, the transfer of insuring obligations to other parties, structuring project specific insurance policies and tackling uninsurability issues in long-term agreements.
- Advice on insurance-related business transactions – Where a business being sold carries on some form of regulated insurance activity, we work alongside transaction professionals to identify potential regulatory requirements that need to be dealt with during the transaction.
A unique service that assists major insurance buyers objectively to review the performance of their insurance service providers and secure the support of the best in the business on advantageous contractual terms and conditions. Relevant service providers include:
- Insurance brokers;
- Claims administrators;
- Captive managers;
- Pension trustees; and
- Insurance consultants.
Our service is based on the assertion that the procurement and engagement of insurance related services is a legal process and that the protection of an organisation’s balance sheet is largely dependent on how effectively service agreements set out the duties a service provider owes and the remedies available in the event of a breach of such duties.
Increasingly, organisations are turning to independent insurance specialists to assist with the creation of effective insurance service provider relationships. This trend is being driven by corporate governance and a genuine desire to achieve best value for money and service delivery from such providers.
Traditional consultants operating in this sphere focus on cost saving alone which can be blunt and dangerous instrument for such a balance sheet sensitive issue. In contrast, we bring genuinely independent technical and tactical legal and insurance thinking to every project to deliver the right outcome, time and time again. The results can be astonishing.
Our services include:
- Benchmarking – conducting off-market benchmarking of service delivery and pricing (for organisations who need to stress test service provision for corporate governance purposes without open-market tendering);
- Tendering – managing open-market competitive tenders (for those obligated or wishing to conduct a competitive procurement of services); and
- Contracting – handling the variation, approval or drafting of insurance related service agreements (to ensure all agreed and necessary terms are properly codified in a binding contract).
We work collaboratively with best of breed insurance consultants to ensure that our legal work is underpinned by the latest and very best insurance market intelligence.