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 (MGAs), insurers, captive owners and professional advisers, wherever in the world they are doing business, including:
- Establishing, structuring, merging, acquiring and disposing of insurance businesses
- 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-related service provider 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 studies 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.
Insurance advice in corporate & commercial transactions
Getting deals over the line is never easy. Transactions falter for many reasons – some technical, some financial, some personal. There are a number of insurance-related solutions available. We work alongside transaction advisers to ascertain the potential availability of suitable insurance-backed solutions and to manage this part of the process of behalf of the parties to remove potential deal-breakers and enable transactions to go ahead. We review the transaction documentation alongside the draft insurance policy terms to ensure there are no unreasonable provisions that would prevent the policy responding if required.
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 e.g. ongoing or threatened litigation, planning, employment issues etc.
- Warranty & indemnity risks – Insurance can provide cover for losses arising from a breach of warranties or indemnities in transaction documentation and can be for the benefit of either the buyer or seller.
- Environmental risks – Insurance can provide cover where there are known or unknown environmental risks linked to a transaction in circumstances where a party is unable or unwilling to provide an acceptable indemnity.
- 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 inctransactions.
Other insurance advice we can provide in relation to transactions includes:
- Insuring clauses – Insuring clauses in major commercial contracts (such as joint ventures, outsourcing,agreements, purchase or supply agreements, distribution agreements, PFI and other infrastructure projects) are not straightforward. We work alongside transaction advisers to help draft suitable clauses to deal with issues such as liability for premium payments and deductibles, the insuring obligations of the other parties, project specific insurance arrangements and uninsurability issues in long-term agreements.
- FCA regulation – Where a business involved in a commercial transaction carries on any type of regulated insurance activity, whether as principal or as an intermediary, we advise on the regulatory issues relevant to the transaction.
Our service provider review service assists insurance buyers to review the performance of their insurance service providers and secure advantageous contractual terms in these arrangements. Relevant service providers include insurance brokers, claims administrators, captive managers, pension trustees and insurance consultants.
The procurement and engagement of insurance-related services is a process and the protection of a balance sheet is dependent on the terms of the service agreement with the service provider, the remedies available under the service agreement and the suitability of the insurance policies recommended by the service provider.
Our services include:
- Benchmarking – conducting off-market benchmarking of service delivery and pricing (for organisations which 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).
- Contracting – drafting and negotiating insurance-related service agreements (to ensure all agreed and necessary terms are properly codified in a binding contract).
We work collaboratively with specialist insurance consultants to ensure we bring to the process the latest market intelligence.