A Q&A guide to insurance and reinsurance law in the Russian Federation.
The Q&A gives a high level overview of the market trends and regulatory framework in the insurance and reinsurance market; the regulation of insurance and reinsurance contracts; and the regulation of insurers and reinsurers, including regulation of the transfer of risk. It also covers: operating restrictions for insurance and reinsurance entities; reinsurance monitoring and disclosure requirements; content requirements for policies and implied terms; insurance and reinsurance claims; insolvency of insurance and reinsurance providers; taxation; dispute resolution; and proposals for reform. Finally, it provides websites and brief details for the main insurance/reinsurance trade organisations in the Russian Federation.
This article is part of the PLC multi-jurisdictional guide to insurance and reinsurance. For a full list of contents visit www.practicallaw.com/insurance-mjg.
An insurer is a legal entity that (Civil Code):
Is established in Russia.
Holds an insurance licence.
Insurance companies are generally organised as limited liability companies or joint stock companies. Providers of insurance services can be divided into the following categories:
Insurance companies.
Reinsurance companies.
Insurance agents. Insurance agents are either:
professionals working for insurance companies under labour or services contracts;
legal entities established in Russia.
They represent insurance companies' interests in relations with their customers and act on behalf of these companies.
Insurance brokers. Insurance brokers are either:
legal entities established in Russia;
individual entrepreneurs.
They represent the interests of insurance companies or policyholders. An insurance broker acts as an intermediary between clients and insurance companies. Brokers provide services relating to the conclusion and execution of insurance contracts.
The Russian insurance market is one of the fastest growing markets in the world. Russia is the dominant insurance market among the Commonwealth of Independent States (CIS) member countries and accounts for over 85% of the total premiums written by all CIS members. The Russian insurance market is behind that of Central and Eastern Europe in relation to:
Its development.
Market penetration of insurance products.
However, it has great potential for growth, particularly in the area of life insurance.
One of the trends in the Russian insurance market is business integration. The ten market leaders control over 50% of today's insurance business. Foreign investors are very interested in the Russian insurance market. For example:
The German insurer Allianz gained control over ROSNO (a Russian insurance leader).
The French insurer AXA bought 36.7% of the shares in RESO-Garantiya.
The regulatory framework is provided by:
The Civil Code.
Law No. 4015-1 On Insurance in the Russian Federation (Insurance Law).
The general provisions of statutes, regulations and other codes (such as the Code of Administrative Violations and the Anti-trust Code) also apply.
The Ministry of Finance is the insurance regulation authority. It:
Approves accounting plans, accounting rules and forms of accounting reports used by insurers.
Establishes the requirements relating to applications and documents for obtaining an insurance licence.
The Federal Insurance Supervision Agency (FISA) is the supervisory authority, ensuring that insurers comply with the laws and regulations in the interests of policyholders. The FISA is responsible for granting licences. It closely monitors the financial status of insurers to ascertain their ability to honour their obligations. It can make recommendations and impose disciplinary sanctions (Article 30, Insurance Law).
Insurance contracts are concluded by an individual or legal entity (the insured) with an insurance company (the insurer). The Civil Code contains definitions of the two types of insurance contract.
Property insurance contract (Article 929, Civil Code). For a fee (insurance premium) and on an insured event stipulated in the contract, the insurer undertakes to reimburse (that is, pay insurance compensation to) the insured (or another person in favour of whom the contract has been concluded) for losses:
Inflicted as a consequence of the insured event relating to the insured property.
Sustained in connection with the insured's other property interests (for example, covered by mandatory third party insurance coverage (OSAGO) or business risk insurance).
The compensation is within an amount stipulated in the contract.
In particular, the following property interests can be insured under a property insurance contract:
The risk of loss (or destruction), shortage of or damage to property (see also Article 930 of the Civil Code).
Civil liability risk and the liability risk under obligations arising due to harm being caused to the lives, health or property of other persons (see also Articles 931 and 932 of the Civil Code), or liability under contracts in cases provided for by law.
The risk of business losses resulting from violations of obligations by the business partners of a businessman, or a change in the conditions of this activity owing to circumstances beyond the businessman's control, including the risk of not receiving anticipated incomes (entrepreneurial risk) (see also Article 933 of the Civil Code).
Entrepreneurial risk can also be insured under a reinsurance contract, so a reinsurance contract refers to property insurance contracts (see also Article 967 of the Civil Code). No other risks can be reinsured under a reinsurance contract.
Under the principal insurance contract, an insurer who concludes a reinsurance contract is the insured under the reinsurance contract. The insurer remains liable to the insured under the principal insurance contract for payment of insurance compensation or the insurance sum (Article 967, Civil Code).
Personal insurance contract (Article 934, Civil Code). For an insurance premium, the insurer undertakes to pay, in a lump sum or in instalments, the sum of money specified in the contract (insured amount):
In the event of harm being inflicted on the life or health of the insured or any other individual named in the contract (insured person).
On attainment of a certain age or the onset of another event provided for by the contract (insured event).
The right to receive the insured amount belongs to the person in favour of whom the contract has been concluded.
Property insurance contract. The insured and the insurer agree on the:
Specific property or any other property interest to be covered by the insurance.
Nature of the insured event.
Insurance sum.
Contract's term of validity.
Personal insurance contract. The insured and the insurer agree on the:
Insured person.
Nature of the insured event.
Insurance sum.
Term of validity of the contract.
Generally, all insurance contracts are regulated, including contracts of reinsurance. The Civil Code regulates personal and property insurance contracts (see Question 3).
Article 32.9 of the Insurance Law contains a list of certain types of insurance contract, such as pension and life insurance contracts, that are also regulated.
In principle, insurers and reinsurers are regulated in the same way. Insurers and reinsurers established in Russia must obtain a licence from, and are supervised by, the FISA (see Question 2). Reinsurance is deemed to require less supervision since consumers are not involved. Generally, the rules covering entrepreneurial risk insurance contracts are also applicable to reinsurance contracts.
Under Russian legislation, legal entities established in Russia can have either:
Universal (general) contractual capacity.
Restricted contractual capacity.
Insurance and reinsurance organisations have restricted contractual capacity and can only carry on insurance business.
The Civil Code and other statutes do not contain any restrictions on the transfer of risk by insurance or reinsurance companies.
Insurance and reinsurance companies must obtain a licence from the FISA before commencing business. The applicant must provide the following (paragraph 2, Article 32, Insurance Law):
Application for the licence.
Constituent documents of the legal entity.
Document confirming state registration of the applicant as a legal entity.
Information about the director and chief accountant of the legal entity.
Insurance regulations.
Calculation of insurance rates.
Information about the insurance actuary. An insurance actuary is a business professional working for the insurer/reinsurer under a labour or services contract, dealing with the calculation of insurance rates and insurance reserves.
In addition to these documents, a Russian company affiliated to foreign investors (or with foreign investment making up more than 49% of its authorised capital) must provide written authorisation from the investors' domestic insurance supervisory authority, for the investors' participation in the authorised capital of the Russian company (paragraph 7, Article 32, Insurance Law).
Insurance brokers must obtain a licence from the FISA before commencing business. The applicant must provide the following (paragraph 5, Article 32, Insurance Law):
Application for the licence.
Documentary proof of state registration as a legal entity or individual entrepreneur.
Constituent documents of the legal entity.
Samples of insurance broker contracts.
Documentary proof of qualification as an insurance broker (and employees' qualifications as insurance brokers, if applicable).
Insurance agents do not need a licence.
The FISA must decide whether or not to grant a licence within 120 days of receipt of the requisite documents. The applicant can challenge a refusal before an arbitration court.
The FISA can withdraw a licence for (paragraph 2, Article 32.8, Insurance Law):
Violation of the insurance legislation and failure to remedy this in the proper time.
Persistent lack of insurance activity during 12 months from the date the licence is granted.
These rules apply to both insurance/reinsurance companies and insurance brokers.
There are no exceptions to the rule that insurers and reinsurers and insurance brokers established in Russia:
Must obtain a licence.
Are supervised by the FISA.
The FISA reviews fitness to control insurance/reinsurance companies and companies of insurance brokers and insurance agents.
Directors, chief accountants, brokers, agents and actuaries of insurance/reinsurance companies must be resident in Russia (Article 8, 32.1, Insurance Law). In addition, they require certain qualifications for their role:
Directors, brokers (including individual entrepreneurs) and agents. These must have both:
a higher economic or financial education;
at least two years' experience in the insurance or finance industry.
Chief accountants. The chief accountant of an insurer or reinsurer must have both:
a higher economic or financial education;
previous employment as an accountant in insurance, reinsurance or broker companies established in Russia.
Actuaries. Actuaries must have both a:
higher mathematics (technical) or economic education;
qualification certificate certifying knowledge of actuarial calculations.
Insurance legislation does not generally require insurance/reinsurance companies or companies of insurance brokers and agents to notify the supervisory authority of:
Any changes in their shareholding structure.
Any equity acquisition.
Significant increases or decreases of ownership in the company.
There are some exceptions to this rule:
Insurance and reinsurance companies must obtain prior authorisation from the FISA to:
increase the size of their authorised capital at the expense of foreign investors or their affiliated companies;
alienate their shares in favour of foreign investors.
Russian shareholders in insurance/or reinsurance companies must obtain prior authorisation from the FISA to alienate shares in favour of foreign investors or their affiliated companies.
The FISA cannot refuse to grant prior authorisation to a company on the basis that it (paragraph 3, Article 6, Insurance Law):
Is affiliated with foreign investors.
Has foreign investment that makes up more than 49% of its authorised capital.
Merger and acquisition deals in any business area are regulated by provisions of Russian anti-trust legislation.
All insurance services providers must (paragraph 5, Article 30, Insurance Law):
Provide reports about their insurance activity.
Provide information about their financial position.
Comply with the insurance legislation and follow FISA instructions to rectify breaches of insurance legislation.
Provide any other information that the FISA requests.
Insurance and reinsurance companies must submit accounting and statistical written reports to the FISA (paragraph 3, Article 28, Insurance Law).
In addition, after an audit, insurers must both (Article 29, Insurance Law):
Publish annual accounting reports in the mass media.
Notify the FISA about the publication.
Insurance companies must form insurance reserves so they can perform their obligations in the future (Article 26, Insurance Law).
The FISA can impose a range of sanctions for failure to comply with legal and regulatory requirements, including:
A warning.
A restriction or suspension of licence.
Withdrawal of a licence.
Fines. Amounts of fines are specified in the Code of Administrative Violations.
Customers can bring an action before the court if the insurer/reinsurer, broker or agent breaches the contract or operates without a licence.
A policyholder must be either a (Article 5, Insurance Law):
Legal entity established in Russia.
Legally capable person (that is, a citizen of the Russian Federation, foreign person or stateless person).
Persons under the age of 18 years are legally capable if the court does not recognise them as incapable. However, there are no restrictions on the conclusion of insurance contracts by guardians on behalf of incapable persons if the incapable person consents (Civil Code).
There is no restriction on the reinsurer's right to monitor the claims, settlements and underwriting of the cedant company. The parties can specify how this right is to be exercised in the contractual framework (Civil Code). Reinsurance and retrocession contracts can provide for a:
Right of inspection.
Cedant company's obligation to provide specific information to the reinsurer on every important claim (for example, claims in excess of US$10,000 (as at 1 August 2010, US$1 was about EUR0.7)).
The Civil Code and other statutes do not contain disclosure or notification obligations relating to reinsurance.
Following analogia juris (analogy of statute), the cedant must supply the reinsurer with all of the following:
The documents certifying the contractual rights and obligations.
Information important for discharging the contract.
Information relating to relevant circumstances of which it is aware, specified by the reinsurer in either a:
standard form insurance contract;
written request.
In addition, disclosure and notification obligations can be established by the cedant and reinsurer in the contract.
The Civil Code outlines the essential terms and conditions of insurance policies, which differ slightly by type of insurance. However, all insurance policies must contain information identifying the:
Insured party.
Insuring company.
Specific property or any other property interest covered by the insurance, or the insured person.
Nature of the insured event.
Insurance sum.
Term of validity of the contract.
Insurance policies that do not meet these requirements are void.
Insurance policies often contain provisions that restrict a company's liability where an event does not precisely satisfy all the characteristics of the insured event outlined in the policy.
The Civil Code and statutes do not contain much regulation relating to insurance policies' implied terms. In the absence of specific mandatory rules and regulations, the general provisions relating to insurance contracts are applied:
The insurer cannot disclose certain information obtained during its professional activities (for example, information about the insured, an insured person or beneficiary in relation to his state of health or property status).
In the case of property or entrepreneurial risk insurance, the insurance sum must not exceed the actual value, unless the insurance policy stipulates otherwise.
Unless the insurance contract provides otherwise, payment of insurance compensation and the insurance sum is suspended if the insured event results from:
the impact of a nuclear explosion, radiation or radioactive contamination;
hostilities and military exercises and other undertakings;
civil war or any kind of strike;
losses caused by seizure, confiscation, requisition, attachment or destruction of the insured property on state authorities' orders.
In addition, the following customer protections are implied by the Civil Code and related statutes:
When defending its interests, the insured (or beneficiary) can refer to insurance terms and conditions in the insurance policy, even if they do not bind the insured. This automatically lowers the burden of proof for the insured in court proceedings. This is because these terms and conditions bind the insurer but not the insured, so the insured can refer to them even if breaching or rejecting them.
Terms and conditions that are not included in the text of the insurance policy only bind the insured (or beneficiary) if both the:
insurance policy expressly indicates that they apply;
terms and conditions are set out in one document together with the insurance policy (or on its reverse side or appended to it).
This provision is due to the presumption of unfamiliarity with insurance terms and conditions recognised under Russian civil doctrine.
Legislation generally grants the parties to an insurance contract considerable discretion in relation to how to regulate mutual rights and obligations. Apart from the requirements in Question 17, breach of other requirements and mandatory provisions does not lead to invalidity.
Article 10 of the Civil Code imposes the principle of good faith on the parties to a contract. The parties should exercise their rights with wisdom and honesty. In relation to insurance policies, the insured should not purposely bring about the insured event and the insurer should not try to avoid responsibility.
The Civil Code provides a level of customer protection, as an insurance policy is void if its terms contradict the law. There are no specific customer protections included in insurance policies to supplement relief available under the general law. For relief under general law, see Question 18.
At the time an insurance contract is concluded, the insurer can apply either (Civil Code):
Its standard insurance policy format.
The standard insurance policy format set by the association of insurers for particular types of insurance.
The All-Russian Insurance Association (ARIA) (see box, Main insurance/reinsurance trade organisations) usually prepares standard policies and terms. For example, entrepreneurial risk insurance policies may include a term relating to the concrete transaction (that is, the specific business transaction that the policy covers). More information can be found at www.ins-union.ru/eng.
Reinsurance policies have the same requirements as insurance policies (see Questions 17 and 18). Both facultative and treaty reinsurance apply under Russian legislation.
An insured can claim under an insurance policy in the event of loss that is both:
Within the limits established by the policy.
Not excluded under the policy.
An insured person that becomes aware of the onset of an insured event must notify the insurer or its representative without delay (or within the stipulated period and by the method indicated in the contract).
If the insured fails to do this, the insurer can refuse to pay insurance compensation (with certain exceptions) (Civil Code).
Generally, third parties can claim under an insurance policy in cases of:
Subrogation.
Assignment.
Otherwise, only the policyholder beneficiary can sue unless the third party beneficiary is expressly named. A property insurance contract in favour of a beneficiary can be concluded without naming the beneficiary (the insurance premium is at the expense of the person who pays (Civil Code)).
The statute of limitations for claims related to property insurance (see Question 3), except property insurance on tort liability (see below), is two years (the usual term of limitation of actions on insurance policies).
The statute of limitations on an insured/reinsured making for claims related to property insurance on tort liability is three years.
The original policyholder or other third party cannot enforce the reinsurance contract against a reinsurer. This is because a reinsurance contract does not create a direct relationship between the reinsurer and the insured party. In the case of reinsurance, the reinsurer remains liable for payment of insurance compensation to the insurer under the principal insurance contract.
In the case of an insurer's insolvency, a policyholder's claim can be included in the list of creditors' claims.
Breach of an insurance policy is equal to a breach of contract and the standard remedies under law apply. Therefore, the defaulting party can be sued for breach of an insurance policy.
The Civil Code regulates the most common provisions on insolvency. In addition, Chapter 9, §4 of the Law on Insolvency (Bankruptcy) and its general provisions provides for a special insolvency procedure for insurance companies (see below).
Right to file for bankruptcy. If the entity's financial difficulties jeopardise the insured's interests, the following have the right to file for bankruptcy:
Debtor.
Bankruptcy creditor.
Federal body authorised by the government to represent the state's interests (as well as a regional and municipal authority).
Temporary administrator of the entity.
Supervisory body.
Professional association (this is a special feature of insurance company insolvency).
Sale of an insurance portfolio. If an insurance portfolio is sold, only an insurance company can buy an insurance portfolio that includes:
Insurance policy obligations not performed by the date of the sale.
Assets for covering insurance reserves.
Creditors' order of priority. The insolvency procedure for insurance companies requires that creditors' claims be satisfied in the following order of priority:
First, claims of the insured and beneficiaries under obligatory insurance policies, and insurance sum claims.
Second, claims of the insured and beneficiaries under life insurance policies and other personal insurance policies.
Third, claims of the insured and beneficiaries under personal tort insurance policies.
Fourth, claims of the insured and beneficiaries under property tort insurance policies and property insurance.
Fifth, settlements with other creditors in compliance with the law.
Insurers, reinsurers and other persons or entities providing insurance and reinsurance-related services are usually subject to general taxation.
Profit is subject to corporate income tax at 20%. Article 293 of the Tax Code specifies how income is determined. In addition to income from sale and extra-sale income (common for all those subject to corporate income tax), income includes that derived from insurance activity. Therefore, the insurer income includes the following:
Insurance premiums on contracts of insurance, co-insurance and reinsurance (only the amount of the insurer's share in the insurance premium).
Reduction (return) of insurance reserves formed in previous reporting periods.
Remunerations and bonuses on reinsurance contracts.
Remuneration from insurers on co-insurance contracts.
Reinsurers' compensation of the share of insurance payments for reinsured risks reinsurance.
Interest on premium deposits on reinsured risks.
Income from exercise of the insurer's (beneficiary's) right of claim against those responsible for inflicting damage.
Sums received as sanctions for breach of insurance contracts recognised by a debtor voluntarily, or based on a court decision.
Remuneration for rendering the services of an insurance agent or broker.
Remuneration received by the insurer for rendering the services of a surveyor and those of an average commissioner.
Insurance premiums under reinsurance contracts partially returned due to their early termination.
Other income derived from performance of insurance activities.
The Tax Code exempts insurers and reinsurers from VAT on rendering of services:
In insurance, co-insurance and reinsurance by insurers.
On non-state pension insurance by non-state pension funds.
This is because these services are recognised to be insurance and reinsurance as a result of which the insurance organisation receives:
Insurance remuneration under insurance and reinsurance contracts, including insurance premium payments and paid reinsurance commission (including a bonus).
Interest charged on deposit of a premium under reinsurance contracts and transferred by the reinsured to the reinsurer.
Insurance premiums received by an authorised insurance organisation that has duly concluded a co-insurance contract for and on behalf of the insurers.
Funds received by the insurer under subrogation from a person responsible for damage caused to the insured, at the rate of insurance indemnity paid to the insured.
There are two possible ways to resolve a dispute arising out of insurance activity.
For example:
Non-state arbitration (for example, through the Chamber of Commerce and Industry of the Russian Federation, or St Petersburg Health Insurance).
Mediation (the Law on Mediation came into effect on 1 January 2011).
Conciliation.
If the parties fail to resolve their dispute out of court, the dispute is brought before national courts. Under law and practice, the claimant usually applies to the court of the respondent's domicile or the court defined in the arbitration clause in the contract. Depending on the parties, the nature of the dispute and the sum, the dispute can be decided by courts of law or courts of arbitration.
Arbitration is frequently used in reinsurance disputes between entities (for example, St Petersburg Health Insurance Arbitration).
Arbitration courts consist of three members (or any uneven numbers of members):
Two initial members are appointed by the parties.
A third member, the chairman, appointed by the two initial members.
Industry practice and custom play an important role in insurance dispute resolution. The Russian Civil Code and other statutes play a major role as the sources of arbitration rules.
The arbitration courts' state procedure is the main dispute resolution method in Russia, because:
The state court of arbitration must decide disputes within three months.
Court expenses are much less.
It is simple to enforce a judgment.
It is very important that disputes are decided on the basis of legal regulation rather than practice and industry custom.
Several important proposals for legal reform are being discussed:
Regulation of insurance actuaries' professional activities.
Bank guarantees providing for discharge of insurance obligations.
Regulation of insurer insolvency procedures.
Harmonisation of the sources of insurance law.
Obligatory health insurance for patients testing experimental medicines.
See also www.ins-union.ru/rus/legislation/projects.
Main activities. This is the federal executive body responsible for supervising insurance activity. It keeps the unified all-Russia register of insurance companies, releases annual reviews of the insurance industry and inspects whether insurance companies comply with the law.
Main activities. This is the main insurance and reinsurance trade organisation. It represents its members' interests in relation to the government, parliament, trade unions and consumer associations.
Main activities. This is the national association of motor insurers. It also prepares draft laws on motor insurance and releases annual reviews.
Main activities. This is the national association of aviation insurers. It also prepares draft laws on aviation insurance and releases annual reviews.
T +7 495 287 44 44 (ext. 5412)
F +7 495 287 44 45
E rustam.kurmaev@gblplaw.com
W www.gblplaw.com
Qualified. Russian Federation; Moscow Chamber of Attorneys, 2003
Areas of practice. Insurance, banking and finance; real estate litigation and arbitration.
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