The Insurance and Reinsurance Law Review, 2nd Ed.: Cayman Islands
By Tim Frawley and John Dykstra 1
This article first appeared in the second edition of The Insurance and Reinsurance Law Review, published by Law Business Research Ltd.
Tim Frawley and John Dykstra provide an analysis of insurance and reinsurance law in the Cayman Islands. Their contribution formed part of the second edition of The Insurance and Reinsurance Law Review, published in April 2014.
To download the whole article at source go to: http://www.maplesandcalder.com/news/article/the-insurance-and-reinsurance-law-review-2nd-ed-cayman-islands-741/
I INTRODUCTION
The insurance market in the Cayman Islands is divided into domestic business, captive insurance, special purpose vehicle (SPV) insurance and commercial reinsurance.
Domestic business is conducted primarily by companies incorporated in the Cayman Islands, although a number of approved external insurers are also permitted to write insurance (e.g., Lloyd’s of London). Some external insurers have manned offices in the Cayman Islands while others operate through local agents.
Captive insurance business may be taken to be all insurance (and reinsurance) business where the premiums originate from the insurer’s related business. The captive market began to develop in the late 1970s and there has been a steady natural growth since then. As of 31 December 2013, the total premiums reported were at US$12.6 billion, with US$69.2 billion in total assets.2 The Cayman Islands is the leading jurisdiction for health-care captives, representing 34 per cent of all captives, and is the second- largest captive insurance company domicile in the world.3 Medical malpractice liability continues to be the largest primary line of business in the Cayman Islands with 257 companies.4 The other significant class for captives is workers’ compensation coverage, which is the second-largest primary line of business in the Cayman Islands with 162 companies.5
SPV insurance is driven principally by the insurance-linked securities market, in particular, the catastrophe bond market. Cayman is the leading market for the formation and licensing of SPV insurers.
The commercial reinsurance market is an area seeing interest and growth. Together with a number of other factors, the introduction of a dedicated reinsurer’s licence (Class D) under the Insurance Law has helped facilitate this.
II REGULATION
The body responsible for regulating the insurance and reinsurance business in the Cayman Islands is the Cayman Islands Monetary Authority (the Authority). The Insurance Division of the Authority discharges those responsibilities. Since March 2003, the Authority has been operationally independent of the government. Independence significantly enhanced the ability of the Authority to meet international standards of supervision, accountability, and transparency, and more clearly defined its functions, duties, powers and obligations.
The Insurance Law was first enacted in the Cayman Islands in 1979. Since that time it has been updated periodically to ensure that the jurisdiction maintains a strong regulatory framework. At the end of 2012, the Insurance Law, 2010 (as amended, ‘the Law’) came into force, bringing a new insurance regulatory regime into effect. The new regime provides for greater regulatory transparency for existing and prospective licensees, and streamlines the regulation of licensed entities.
There are currently no proposals to achieve Solvency II equivalence for the
Cayman Islands regulatory regime.
i Insurance licensing
All persons carrying on or desiring to carry on insurance business, reinsurance business, or business as an insurance agent, insurance broker, or insurance manager in or from within the Cayman Islands need to be licensed by the Authority. Insurers are licensed under one or more of the following categories:
a Class A – for carrying on of domestic business or limited reinsurance business as approved by the Authority;
b Class B – for the carrying on of insurance business other than domestic business.
Class B insurers are categorised based on net premiums written, where:
• Class B(i) – at least 95 per cent of the net premiums written will originate from the insurer’s related business;6
• Class B(ii) – over 50 per cent of the net premiums written will originate from the insurer’s related business; or
• Class B(iii) – 50 per cent or less of the net premiums written will originate from the insurer’s related business;
c Class C – for the carrying on of insurance business involving the provision of reinsurance arrangements in respect of which the insurance obligations of the Class C insurer are limited in recourse to and collateralised by the Class C insurer’s funding sources or the proceeds of such funding sources that include the issuance of bonds or other instruments, contracts for differences and such other funding mechanisms approved by the Authority. Typically such licensees would be ‘cat- bond insurers’ or ‘special purpose insurers’; and
d Class D – for the carrying on of reinsurance business and such other business as may be approved in respect of any individual licence by the Authority.
Agents, brokers and managers are required to be licensed as follows:
a ‘Insurance agent’ licence, for the soliciting of domestic business on behalf of not more than one general insurer and one long-term insurer;
b ‘Insurance broker’ licence, for arranging or procuring, directly or through representatives, insurance or reinsurance contacts or the continuance of such contracts on behalf of existing or prospective policyholders; and
c ‘Insurance manager’ licence, for providing insurance expertise to or for Class B or
Class C insurers.
ii Organisation of licensees
Except for domestic business, where external insurers are permitted, only an entity incorporated under the Companies Law (2013 Revision) and that has a minimum of two directors (who have been approved by the Authority to be fit and proper persons) may be granted a licence by the Authority.
An insurance broker, insurance manager, a Class A insurer or a Class D insurer is required to have a place of business in the Cayman Islands while a Class B insurer or a Class C insurer (unless it maintains permanently a place of business approved by the Authority) is required to appoint an insurance manager in the Cayman Islands and maintain, at the insurance manager’s place of business (or at another location approved by the Authority), full and proper records of the business activities of the Class B insurer or Class C insurer.
iii Licensing requirements
Every licensee is required to carry on insurance business in accordance with its approved licence application and business plan submitted to the Authority (as modified by any subsequent changes as approved in writing by the Authority).
To satisfy the Authority’s licensing requirements, an applicant is required to ensure that:
a the persons carrying on the business to which the application relates are fit and proper to be directors, managers or officers in the respective positions;
b it is able to comply with the Law and the Money Laundering Regulations (2010 Revision) of the Cayman Islands;
c the grant of a licence will not be against the public interest of the Cayman Islands;
d it has personnel with the necessary skills, knowledge and experience and such facilities and such books and records as the Authority considers appropriate, having regard to the nature and scale of the business;
e the structure of its insurance group, if any, will not hinder effective supervision; and
f its capital complies with the prescribed level.
iv Capital and solvency requirements
Every applicant for an insurer’s licence needs to comply with the prescribed capital and solvency requirements. The prescribed capital and solvency requirements for each category of licence are set out in the relevant insurance regulations.
v Segregated portfolio companies (SPCs)
Since 1998, the Companies Law has provided for the formation of SPCs. An SPC is a single legal entity divided into an unlimited number of portfolios, the assets and liabilities of which are legally segregated from each other. The potential uses are varied and include rent-a-captives, life insurance, reinsurance and composite insurers. An insurer that is not a Class D insurer and not a Class B insurer incorporated as an SPC must be separately licensed for long-term and for general business.
In this context, ‘general business’ is all insurance business other than ‘long-term business’, which means insurance business involving the making of contracts of insurance: a on human life or contracts to pay annuities on human life, including linked policies, but excluding contracts for credit life insurance and term life insurance other than convertible and renewable term life contracts;
b against risks of the persons insured:
• sustaining injury as the result of an accident or of an accident of a specified class;
• dying as the result of an accident or of an accident of a specified class; or
• becoming incapacitated in consequence of disease or diseases of a specified class, being contracts that are expressed to be in effect for a period of not
less than five years or without limit of time and either not expressed to be terminable by the insurer before the expiration of five years from the taking effect thereof or expressed to be so terminable before the expiration of that period only in special circumstances therein mentioned; and
c whether by bonds, endowment certificates or otherwise whereby in return for one or more premiums paid to the insurer a sum or series of sums is to become payable to the person insured in the future, not being contracts falling within (a) or (b).
vi Share issuances and transfers
A licensee cannot issue shares totalling more than 10 per cent of its authorised share capital without the prior approval of the Authority. In addition, a licensee cannot transfer shares totalling more than 10 per cent of the issued share capital, or total voting rights, without the prior approval of the Authority.
vii Annual requirements
Every insurer is required to pay the prescribed annual fee on or before 15 January every year after the first grant of its insurance licence. A licensee who fails to pay the prescribed annual fee on time may be subject to penalty fees.
Every licensee is required to comply with continuing requirements under the Law. As such, all licensees are required to appoint auditors approved by the Authority. In addition, and subject to certain exceptions, all insurers are required to submit by way of annual return to the Authority audited financial statements, an actuarial valuation of their assets and liabilities, a certification of solvency, written confirmation that the information set out in the application for licence (including the business plan), as modified by any subsequent changes approved by the Authority, remains correct and such other information as may be prescribed by the Authority.
viii The position of unlicensed insurers
An unlicensed foreign insurer carrying on insurance business in the Cayman Islands (e.g., if the foreign insurer has a physical presence in the Cayman Islands in the form of offices or personnel, advertises in the Cayman Islands and offers insurance to the public) would be guilty of an offence and liable on summary conviction to a fine of CI$100,000 or to imprisonment for a term of five years, or to both.7 In the case of domestic business, insurance brokers can, however, be permitted by the Authority to place limited amounts of such business with unlicensed foreign insurers. An unlicensed insurer with whom a broker can place insurance business pursuant to a dispensation granted would not be considered as carrying on insurance business.8
For the purposes of the Law, a person would not be considered as carrying on insurance business solely by reason of the fact that the person effects or carries out a contract of reinsurance with an insurer in the Cayman Islands, unless that person’s principal place of business is in the Cayman Islands.
ix Intermediaries and the role of the broker
As noted above, the Authority may grant a special dispensation to an insurance broker to place a contract of domestic business with one or more insurers that are not licensed under the Law. Such dispensation is granted on a case-by-case basis only, and is subject to review at such intervals as the Authority may specify. An insurance broker who has not been granted a special dispensation shall be personally liable to the insured on all contracts of insurance placed with insurers not licensed under the Law in the same manner as if the insurance broker were the insurer.
In addition, an insurance broker is prohibited from entering into a binding authority with an insurer other than a Class D insurer.9 However, the Authority may grant a dispensation to an insurance broker for a fixed period (despite the duty of the insurance broker to act for the prospective insured) to enter into a binding authority with an insurer if it is satisfied that the insurance broker needs (in terms of additional capacity, policy coverage, cost savings or otherwise) the binding authority to be permitted. Such dispensation granted by the Authority would be subject to any conditions that the Authority prescribes, including restrictions to lines of business, specific contracts, types of client and requirements for disclosure, and review at such intervals as the Authority may specify.
Under the Law, an insurance broker shall maintain in force, and comply with the conditions of cover of, professional indemnity insurance placed with an insurer licensed to carry on domestic business (or an insurer accorded with special dispensation by the Authority) and provide for an indemnity of not less than US$1 million for any one loss, or such other figure as may be prescribed by the Authority. Such professional indemnity insurance shall extend to include the activities conducted on behalf of the insurance broker and be subject to review by the Authority. In the event that such professional indemnity insurance is invalidated, becomes voidable or is withdrawn, cancelled or not renewed, the broker shall immediately notify the Authority and shall forthwith cease to solicit further insurance business until such professional indemnity insurance has been reinstated or replaced.10
III INSURANCE AND REINSURANCE LAW
i Sources of law
As noted above, the Law came into force at the end of 2012 and governs insurance regulation in the Cayman Islands, including the authorisation and regulation of insurers, reinsurers, insurance managers, insurance brokers and insurance agents. Entities licensed under the previous statute have until May 2014 to transition to a new licence under the Law. While the Cayman Islands has its own body of case law, English case law is also of persuasive authority and may often be cited in court.
ii Making the contract
Parties
The insurance contract will normally be made between two parties, the insurer and the insured. Both parties may be carrying on insurance (or reinsurance) business as in the case of reinsurance or retrocession.
Insurable interest
There is no statutory requirement for insurable interest in Cayman Islands law, although English common law may be taken to imply a requirement for insurance interest in all types of indemnity insurance. In Rowe v. Proprietors, Strata No. 8311 the court ruled that a party has an insurable interest if it had a legal relationship with property that renders it liable to pay money in the event of it being damaged. In this case, the strata by-laws included a contractual obligation to keep the property insured and this was held to give the strata corporation an insurable interest.
Formation
Consistent with English common law, contracts under Cayman Islands law do not need to be in writing. In practice, policies are issued in writing and, for the purposes of regulatory policy, documentation must be available for inspection by the Authority and meet certain requirements.
Disclosure and misrepresentation
The general principles of English insurance common law regarding non-disclosure and misrepresentation have been followed in the Cayman Islands as demonstrated by the decisions of Zeller v. British Caymanian Insurance Company Ltd12 and McLaughlin v. American Home Assurance Company.13
In Zeller, the Court of Appeal upheld the judgment, applying the English authority Economides v. Commercial Union Assurance Co Plc14 and ruled by a majority that the insurance policy was voidable for non-disclosure, confirming that as a contract in utmost good faith the appellant was under a duty to disclose all that a reasonable person would have considered material, being disclosure of all that he ought to have realised was material and not what he did in fact realise was so.
The decisions in Zeller were, however, overruled on appeal by the Judicial Committee of the Privy Council, thereby declaring that the respondent insurer’s notice of cancellation of the appellant’s health insurance cover was invalid and of no legal effect. The Privy Council concluded in the case that the basis of the contract was that the statements made by the appellant in the application form were true to the best of his knowledge and belief, which it considered to be consistent with the approach of the Court of Appeal of England and Wales in Economides.
The essence of the judgment was that, on the facts of the case, given the construction of the health questionnaire, the appellant was expected to exercise his judgment on what appeared to him to be worth disclosing. He thereby did not lose cover after failing to disclose a complaint, which he thought to be trivial but which later turned out to be a symptom of a much more serious underlying condition.
In McLaughlin, a case primarily concerning proof of arson and a fraudulent insurance claim, it was confirmed obiter dicta, pursuant to the English authority Pan Atlantic Insurance Co Ltd v. Pine Top Insurance Co Ltd,15 that for an insurer to be entitled to void a policy for misrepresentation or non-disclosure, not only does it have to be material, but in addition it has to have induced the making of the policy on the relevant terms. On the facts, it was ruled that a previous fire at the premises that had caused damage, but for which an insurance claim had not been made, was not material since it would not have induced the making of the contract on the relevant terms.
iii Interpreting the contract
English general principles of interpretation of contracts apply to insurance contracts in the Cayman Islands. In Jackson v. Cayman Insurance Company Ltd,16 the court followed the view of Lord Goddard CJ in the English case of Edwards v. Griffiths,17 where he ruled that a contract should be construed against the insurer where there is an ambiguity or a doubt as to its extent; if a question should arise as to liability of the insurer, the court should apply a construction most favourable to the insured.
There is currently no case law in the Cayman Islands that has confirmed the distinction between types of conditions and warranties in insurance contracts and thus the English common law remains of persuasive authority. One case considered the interpretation of a condition in a motor policy, namely Jackson, whereby the insurer sought to rely on a breach of a term of the policy to deny liability. It was ruled that the breach could only obviate liability of loss to third parties caused by negligence and not loss caused by breach of a statutory provision. There was, however, no discussion of the classification of the term that had been breached.18
IV DISPUTE RESOLUTION
i Jurisdiction, choice of law and arbitration clauses
As a British overseas territory, the Cayman Islands has a democratic system of government based upon the British Westminster model. Judicial independence in the Cayman Islands is protected by the Constitution, which is a cornerstone of the system of government.
Litigation is conducted on the adversarial system, based generally on English principles of civil procedure. Due to its status as a leading offshore financial centre, the Cayman Islands courts are accustomed to dealing with complex insurance disputes, often with significant cross-border aspects.
The most common alternative to litigation is arbitration. Large commercial contracts involving Cayman Islands entities tend to have arbitration clauses, but large commercial arbitrations are uncommon in the Cayman Islands, as such contracts will usually provide for the arbitration to take place in the relevant onshore jurisdiction, for example, England or the United States. However, the Cayman Islands courts play a supportive role to facilitate arbitration procedures and will generally recognise and enforce foreign arbitral awards made in any of the contracting states to the New York
Convention under the terms of the Convention.
ii Litigation
Litigation stages
The Grand Court of the Cayman Islands (the Grand Court) is the superior court of record of first instance for the Cayman Islands. The caseload of the Grand Court is divided between five divisions: civil, family, admiralty, financial services and criminal.
Insurance actions, where the amount claimed exceeds CI$1 million, are tried in the Financial Services Division. Every proceeding in the Financial Services Division is assigned to a commercial judge, that is, one of a number of commercially experienced judges including the Chief Justice. Commercial judges sit alone, without a jury. Where the assigned judge is unavailable, urgent applications may be heard or determined by another commercial judge. Visiting judges and senior lawyers from, in particular, Jamaica and Canada sometimes sit as acting judges.
Appeals from the Grand Court are to the Cayman Islands Court of Appeal (which usually sits three times each year). The ultimate appellate court is the Privy Council in England.
Evidence
The issues in the litigation are defined by pleadings exchanged by the parties, including a statement of claim, a defence and (if necessary) a reply. The pleadings set out the parties’ various factual allegations, and in the case of the plaintiff, the relief sought. All such allegations must be pleaded with a reasonable degree of particularity, to a level that is generally higher that what would be typical in the United States. At trial, the parties’ arguments are limited to those matters set out in their pleadings.
Parties’ discovery obligations are broad, and extend to all documents that are relevant to matters in issue on the pleadings or that may reasonably lead to a train of enquiry. Certain classes of privilege apply, including, most significantly, legal professional privilege.
Depositions do not form part of the usual civil procedure. There is a mechanism known as ‘discovery by oral examination’, which is in some ways similar to a deposition. However, only parties may be examined in this way, not witnesses. Discovery by oral examination will only be ordered in exceptional or unusual circumstances.
Evidence at trial is usually given by way of oral testimony and cross-examination. Interlocutory matters are usually decided on affidavit evidence. The Court has wide- ranging interim powers, including but not limited to the power to trace and preserve assets; order discovery or preservation of documents; and the appointment of interim receivers.
Costs
The court will normally order that the unsuccessful party pay the successful party’s costs of the litigation. The costs, which are recoverable on a typical costs order, are assessed on a ‘standard’ basis by reference to a set of prescribed rates. The prescribed rates are invariably lower than the actual cost of litigation, and indicatively a party could expect to recover between around 50 and 70 per cent of their actual costs. However, if the court takes the view that the losing party’s conduct of the litigation has been particularly unreasonable, it may order that party to pay costs on an ‘indemnity’ basis; in that case, recovery is not limited to the prescribed rates.
iii Arbitration
The Arbitration Law, 2012 of the Cayman Islands (the Arbitration Law) modernises the arbitration law of the Cayman Islands and brings it into line with the standards applicable in most of the world’s leading arbitration centres. The Arbitration Law is based on the UNCITRAL Model Law, which has been adopted in a large number of countries, and on the Arbitration Act 1996, which applies in England, Wales and Northern Ireland and is similar to the UNCITRAL Model Law in many respects. It is expected that in interpreting the Arbitration Law the Cayman Islands courts will have regard to decisions of the courts of these countries where the provisions of the Arbitration Law are the same or substantially the same as those of the 1996 Act, which they are in many cases.
The Arbitration Law is founded on the following principles:
a the object of arbitration is to obtain the fair resolution of disputes by an impartial arbitral tribunal without undue delay or undue expense;
b the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest; and
c in matters governed by the Arbitration Law the court should not intervene except as provided in the Arbitration Law.
Arbitration agreement
An arbitration agreement may be in the form of an arbitration clause in a contract or a separate agreement. An arbitration agreement that forms, or was intended to form, part of another agreement is to be treated as distinct from that agreement. Thus an arbitration clause may be valid and enforceable even though the insurance contract of which it forms part is found to be void.
Procedure and evidence
The parties of the insurance contract are free to tailor the procedures that are to be followed in the arbitration to meet their needs, subject to the mandatory provisions of the Arbitration Law.
Absent agreement by the parties as to the powers that may be exercised by the tribunal, the tribunal may make orders in relation to a variety of matters including: security for costs;19 disclosure of documents and interrogatories; the giving of evidence by affidavit; examination on oath or affirmation of a party or witness; and the preservation and interim custody of evidence for the purposes of the proceedings and property that forms part of the subject matter of the dispute.20
All directions given by the arbitral tribunal may, with the permission of the court, be enforceable in the same manner as if they were orders made by the court and, where such permission is given, judgment may be entered in the terms of the directions given by the tribunal.21
Costs
Costs of the arbitration are generally at the discretion of the tribunal. If the tribunal does not make provision for costs in its award, any party may apply for a direction from the tribunal within 14 days of the delivery of the award, or such further time as the tribunal allows. Costs will generally follow the event, such that the unsuccessful party will be ordered to pay the successful party’s costs. Only the costs of attorneys admitted to practise in the Cayman Islands are recoverable and this includes the costs of foreign attorneys who have been granted limited admission to the Cayman Islands for the purpose of appearing or advising in proceedings.
iv Alternative dispute resolution
There is no formal requirement in the Cayman Islands to pursue alternative dispute resolution (ADR). The Grand Court Rules require parties to deal with each case in a just, expeditious and economical manner and judges to encourage the parties to pursue ADR where appropriate. Although the court cannot compel the parties to use ADR, there will usually be costs consequences where the parties do not follow such a suggestion. ADR methods such as mediation, early neutral evaluation and expert determination are still relatively uncommon in the Cayman Islands.
V YEAR IN REVIEW
Although the Law was originally enacted in 2010, as additional work had to be carried out to settle the underlying ancillary regulations, it only came into force at the end of 2012. The final version of the Law and the related regulations are the product of many years of extensive consultation with industry to ensure adequate provision is made for existing market arrangements and also for new areas of interest and growth.
In 2012, the Cayman Islands saw a year of tremendous growth for the insurance industry with 53 licences granted. A further 39 insurance licences were issued in 2013, bringing the total number of licensees in the Cayman Islands to 761.
The Cayman Islands continues to see an increase in the use of SPV insurers by commercial reinsurers accessing the capital markets to distribute reinsurance risk. This market first developed in the Cayman Islands in the mid-1990s and the Cayman Islands quickly became the home to almost all catastrophe bond transactions. The new insurance regulations create a new category of licence, the Class C licence, aimed at SPV insurers such as cat bond issuers, recognising that these transactions require a very different level of regulatory oversight, given the collateralised limited recourse nature of the payment obligations.
The Cayman Islands is also continuing to develop as a reinsurance domicile, as evidenced by the number of licences being issued to fund sponsored reinsurance vehicles. In particular, hedge funds have taken a keen interest in establishing reinsurance subsidiaries. As the leading domicile for hedge funds, the Cayman Islands is ideally placed to be the domicile for reinsurers affiliated with hedge funds. The Cayman Islands government is committed to development of the financial services industry including the reinsurance market and, as such, changes to the Immigration Law were first introduced to allow for the grant of work permits of up to 10 years to senior management in the reinsurance industry so as to address any concerns relating to the ‘rollover’ rule which otherwise applied on the seventh year of residency. Subsequently, the Cayman Islands government has removed the rollover requirement altogether and as such there is no longer any legal impediment in becoming eligible to apply for permanent residency. The Cayman Islands government also continues to explore the availability of other incentives to the industry.
VI OUTLOOK AND CONCLUSIONS
In 2013, new legislation was enacted (but not given effect) that will allow SPCs to establish portfolio insurance companies (PICs) and also provides for class B(iv) licensees. A PIC will be able to write insurance business without the need for a separate licence provided the SPC parent is licensed. The principal aim is to provide SPCs with a mechanism that facilitates risk-sharing arrangements between portfolios. The B(iv) licensee is broadly similar to the B(iii) licensee but distinguished by reference to premium volume. It is expected that this new piece of legislation will come into force upon the related capital and solvency regulations for PICs being enacted.
The recent overhaul of the insurance regulatory regime is already having a positive impact on the insurance and reinsurance industry in the Cayman Islands. New reinsurers have established themselves in the jurisdiction and it is expected that others will follow. The government, working together with local service providers, is committed to growing the reinsurance industry in the Cayman Islands. The efforts to date, culminating in the enactment of the new insurance regulatory regime, have yielded very positive results in the short period of time since the new regime came into effect. Anecdotal evidence suggests the principal factors in play are Solvency II equivalence, the new regulatory regime, the desire to find risk-adjusted returns, and current insurance conditions (e.g., low annuity rates).
With a new momentum driven by the new insurance regime and a renewed effort of the jurisdiction to establish itself as a leading reinsurance domicile, it can be expected that other insurance products, such as sidecars, will also make increasing use of the jurisdiction.
Appendix 1
ABOUT THE AUTHORS
TIM FRAWLEY
Maples and Calder
Since moving to the Cayman Islands office of Maples and Calder in 2001, Tim Frawley has been involved with Cayman insurance, reinsurance and alternative risk transfer products. His experience includes working with captive insurers, insurance managers and brokers. Tim also has experience with hedge fund-sponsored reinsurers and sidecars, as well as the domestic insurance industry. He participated in the Insurance Law 2010 steering committee and has assisted with the legislative drafting process.
JOHN DYKSTRA
Maples and Calder
John Dykstra is a partner in the Cayman Islands office of Maples and Calder. His practice includes a focus on structured finance, including catastrophe bond transactions and other similar insurance-linked securities transactions. John is recommended for insurance and reinsurance by Who’s Who Legal and is noted in Chambers Global and Legal 500 for catastrophe bond transactions.
MAPLES AND CALDER PO Box 309, Ugland House South Church Street
Grand Cayman KY1-1104
Cayman Islands
Tel: +1 345 949 8066
Fax: +1 345 949 8080 [email protected] [email protected] www.maplesandcalder.com
1 Tim Frawley and John Dykstra are partners at Maples and Calder. The authors would like to thank Kaneesa Ebanks for her assistance with the preparation of this chapter and Marc Kish for his assistance with the section on dispute resolution.
2 Insurance statistics and regulated entities as maintained by the Cayman Islands Monetary Authority.
3 Ibid.
4 Ibid.
5 Ibid.
6 ‘Related business’ means business that will originate from the insurer’s members or the members of any group with which it is related through common ownership or a common risk management plan, or as determined by the Authority.
7 Insurance Law, 2010, Section 3(2).
8 Insurance Law, 2010, Section 19(5).
9 Insurance Law, 2010, Section 19(1).
10 Insurance Law, 2010, Section 13(1)–(3).
11 (Grand Court), 2009 CILR N [31].
12 [2004–2005] CILR 464 (CA) and 283 (Grand Court), and [2008] CILR 11 (Privy Council).
13 [1994–1995] CILR N-18 and [1996] CILR N-6.
14 [1998] QB 587.
15 [1989] 1 Lloyd’s Rep 568.
16 [1994–1995] CILR 313 and N-19.
17 [1953] 2 All ER 874.
18 The decision actually focused on whether the policyholder was in compliance with the statutory provision as this was the requirement of the term. On the facts, the policyholder was found to be in breach of the law and therefore the term.
19 Subject to the proviso in Section 38(4) that security is not to be required solely on the grounds that the claimant is an individual ordinarily resident outside the Cayman Islands, or a company formed or with its central management outside the Cayman Islands.
20 Arbitration Law, 2012, Section 38.
21 Arbitration Law, 2012, Section 38(5).
