Ukrainian Insurance Industry

I.         Introduction

The insurance market in Ukraine started in 1991. The number of insurance companies operating in Ukraine has fallen since 1994, when there were more than 700. However, this reduction had a positive effect, as most insolvent companies and pseudo-insurance firms were removed from the insurance market. This process was partly the result of the legislative regulation of the insurance business, strengthening of state control over the insurance market and tougher requirements for the size of insurance companies’ authorized capital.

In Ukraine, unfortunately, confidence in the insurance sector was seriously undermined during 1991-1997, when many Ukrainian insurance companies went bankrupt. At the same time, the potential of Ukraine’s insurance market is still rather high. According to expert estimates, in Ukraine today only around 10 percent of risks are insured, while in most countries, this figure is 90-95 percent.

Prior to the adoption of the Law of Ukraine No. 2745-III “On Introduction of Amendments to the Law of Ukraine ‘On Insurance’” (the “Insurance Law”), dated October 4, 2001, foreign insurance companies found that doing business in Ukraine independently was impossible due to the 49% limitation on foreign ownership of Ukrainian insurance companies. Finally, the above-mentioned amendments to the Insurance Law lifted this discriminatory limitation and allowed foreign insurance companies to freely carry out their intended activities in Ukraine.

Today, foreign insurers are able to form 100% foreign controlled companies or possess a controlling interest in joint insurance companies in Ukraine. Most recently, in May of 2013, foreign insurance companies gained the ability to open local branches which may qualify as insurers, subject to certain conditions. Continuous changes in taxation legislation and insurance regulation, however, remain to be key problems for insurance managers, who are unable to make long-term plans.

The domestic insurance market continues to develop dynamically and is one of the few sectors of the Ukrainian economy continues to boast steady growth in turnover. However, certain key domestic insurance incentives are still missing or underdeveloped, such as mortgage insurance and mandatory non-state issued auto insurance, which may potentially boost the market with the inflow of premiums from rank and file people.

Below we provide you with the legislative analysis of this emerging sector of the Ukrainian economy.

II.        Discussion

A.        Overview

The creation and operation of insurance companies, including companies with foreign ownership, are regulated by the Laws “On Insurance,” “On Economic Associations,” “On the Foreign Investment Regime,” the Ukrainian Tax Code and other legislative acts. In combination, these laws set up a system whereby any person may insure any proprietary interest permissible under Ukrainian legislation.

The primary Law “On Insurance” provides legal protection for individuals and legal entities in cases of insured accidents. Depending on the type of insured object and event, insurance may be divided into one of the following categories: (i) personal (insurance of proprietary interests associated with life, health or labor and pension); (ii) proprietary (insurance of proprietary interests connected with the possession, use and disposal of property); and (iii) liability (insurance shielding an individual or company against liability for certain acts resulting in damage to any third party or its property).

Furthermore, insurance may be either voluntary or obligatory. Voluntary insurance is documented by an agreement between the insurer (i.e., insurance company) and the insured. The general principles and terms and conditions of voluntary insurance are described in the insurance rules, which are established independently by each insurance company. Specific terms and conditions of voluntary insurance should be defined in the insured individual’s specific agreement.

The terms and conditions of mandatory insurance are set forth by the relevant legislative acts. Mandatory insurance is usually required for companies or individuals who perform acts which are potentially dangerous either to themselves or to those for whom they perform services (e.g. firemen, soldiers and officers and construction workers, doctors, professional athletes, etc.). In most cases, an individual is free to choose the insurance company, unless otherwise provided by applicable laws.

B.        Legal Forms of Insurance Companies

Regarding the creation of new insurance companies, the founders must keep in mind that Ukrainian law mandates specific legal forms for insurance companies. For instance, insurance companies must have at least three participants and receive a license to carry out insurance activity. Insurance company may only structure themselves as:

1)        a joint stock company;

2)        a general partnership;

3)        a limited partnership; or

4)        a company with additional liability.

C.        Non-resident Insurers on the Ukrainian Market

As briefly mentioned above, currently, foreign investors may have a majority ownership in Ukrainian resident insurance companies. This is significant because a minority 49% ownership stake by a foreign investor only gives such an investor the right to receive dividends and exercise control over a limited amount of strategic issues as the resolution of most issues requires more than 51% of votes of the participants. Moreover, the Insurance Law allows foreign participants to freely adopt so-called “fundamental” decisions, which include the all-encompassing right to amend the charter of the company and to terminate the activity of the company, among others.

Recent amendments to the Insurance Law have continued to open the Ukrainian market to foreign insurers, including the amendments which came into force in May, 2013, as part of Ukraine’s accession to the World Trade Organization. As a result, foreign insurers may establish local branches in Ukraine by registering them with the State Commission for Regulation of Financial Services Markets of Ukraine and obtaining the relevant license(s). However, the foreign insurer must meet the following conditions in order to establish a local branch:

1.         The country in which the foreign insurer is registered must be a member of the World Trade Organization (WTO) and must participate in international cooperation in the fight against money laundering and financial terrorism. The said country must also cooperate with the Financial Action Task Force (FATF). In case of reinsurance, membership in the WTO is not a prerequisite;

2.         A data exchange agreement must be concluded between the State Commission for Regulation of Financial Services Markets of Ukraine and the comparable body in the country of the foreign insurer’s registration;

3.         State monitoring over insurance activity must take place in the country of the foreign insurer’s registration;

4.         An international agreement on the prevention of tax evasion and the avoidance of double taxation must be concluded between Ukraine and the country of the foreign insurer’s registration;

5.         The foreign insurer’s country of registration may not be on the list of offshore zones published by the Cabinet of Ministers;

6.         The foreign insurer has a license to conduct insurance activity pursuant to the laws of its country of registration;

7.         The financial reliability rating of the foreign insurer complies with the requirements established by the State Commission for Regulation of Financial Services Markets of Ukraine. These requirements can be found in the Commission’s Order No. 7924 of August 28, 2007, which states that the financial reliability rating may not be lower than the highest reliability ratings of A.M. Best (USA) – B+, Moody’s Investors Service (USA) – Baa, Standard & Poor’s (USA) – BBB, and Fitch Ratings (UK) – BBB.

In addition to the above conditions, foreign insurers must meet all of the other requirements for locally registered insurance companies, including authorized capital requirements, guarantee deposit requirements, performance guarantees, etc. As to the form of foreign insurer’s branches, they may not be registered as limited liability companies and, therefore, foreign insurers are faced with unlimited liability for their insurance activities in Ukraine.

D.        Insurance Intermediaries

Some foreign insurance companies prefer to reinsure risks already insured in Ukraine rather than directly providing insurance services in Ukraine. Such foreign insurers typically carry out reinsurance activities through reliable Ukrainian insurance companies.

Pursuant to Resolution No. 124 of the Cabinet of Ministers of Ukraine “On the Procedure and Requirements Related to Reinsurance by Non-Resident Insurers (Reinsurers)”, dated February 4, 2004 (as lastly amended on March 28, 2012), the conclusion of reinsurance agreements abroad with non-resident insurers (reinsurers) is permissible under the following conditions:

1.         The law of the country of the non-resident insurer (reinsurer) provides for state monitoring of insurance and reinsurance activity;

2.         The non-resident insurer (reinsurer) has been conducting uninterrupted insurance (reinsurance) activity for no less than three years prior to the date of the conclusion of the reinsurance agreement;

3.         The non-resident insurer (reinsurer) has not violated its insurance and reinsurance legislation, anti-money laundering laws or anti-terrorism laws.

The satisfaction of the above conditions must be confirmed in writing or in electronic form by the insurance/reinsurance regulator of the foreign insurer’s (reinsurer’s) country or the International Association of Insurance Supervisors (IAIS) and sent to the State Commission for Regulation of Financial Services Markets of Ukraine. Local insurance companies may also appeal to the State Commission for Regulation of Financial Services Markets of Ukraine to confirm a foreign insurer’s (reinsurer’s) conformance with the above conditions. If a local insurance company concludes a reinsurance agreement with a non-resident insurer (reinsurer), it has a ten-day term to inform the State Commission for Regulation of Financial Services Markets of Ukraine.

Reinsurance activities may also be carried out with the assistance of reinsurance brokers. Ukrainian law expressly allows foreign reinsurance brokers to provide intermediary services associated with the reinsurance of risks insured in Ukraine by foreign re-insurers. However, foreign reinsurance brokers may only render intermediary services in Ukraine through permanent representative offices, which must be registered as taxpayers in accordance with Ukrainian legislation and appear in the State Register of Insurance or Reinsurance Brokers.

On May 28, 2004, Regulation No. 736 on the Registration of Insurance and Re-Insurance Brokers and the State Register of Insurance and Re-insurance Brokers was passed by the State Commission for Securities and the Stock Market, providing for the mandatory registration of insurance and re-insurance brokers in the State Register of Insurance and Re-insurance Brokers.. Regulation No. 736 was lastly amended on March 5, 2013. In addition, insurance and re-insurance brokers are subject to mandatory certification of their qualifications. Both certification and registration of insurance brokers is performed by the State Commission for Regulation of Financial Services Markets of Ukraine.

1.        Certification of Insurance Brokers

Certification is arranged through attending an appropriate academic course or by passing a relevant test by insurance brokers' managers, which must be confirmed by the respective Certificate of Improved Insurance Education. Training and testing is performed by appropriate educational establishments having the respective license of the Ukrainian Ministry of Education, while certification documents are issued by the State Commission for Regulation of the Financial Services Markets.

2.        Registration of Insurance Brokers

According to the Regulation, all insurance brokers registered as subjects of business activity, along with non-resident brokers performing their activity on the territory of Ukraine, are subject to registration in the State Register of Insurance and Reinsurance Brokers. In addition, any non-resident insurance or reinsurance brokers must inform the State Commission for Regulation of Financial Services Markets of Ukraine regarding their intention to conduct activity in Ukraine. In such cases, the State Commission will publish such information within a three-day term on its official website and in the mass media.

The State Register of Insurance and Reinsurance Brokers contains the following characteristics of insurance brokers: identification, classification, informative data, registration data and economic data. In order to be registered in the State Register of Insurance and Reinsurance Brokers, insurance brokers must submit to the State Commission for Regulation of Financial Services Markets of Ukraine the following documents:

1. an application for registration in the State Register of Insurance and Reinsurance Brokers;

2. a print out from the website of the Unified State Register of Legal Entities and Natural Persons-Entrepreneurs with information on the applicant (endorsed by the chief executive of the applicant – submitted at the applicant’s choice);

3. a certified copy of the document evidencing the proper qualification issued by the State Commission for Regulation of the Financial Services Market to the director of the legal entity-applicant or to an entrepreneur;

4. an economic substantiation of the planned intermediary activity of the insurance (reinsurance) broker;

E.        Structure of the Authorized Capital of Insurance Companies

To minimize the chances of an insurance company’s failure to pay its clients due to the lack of available funds, Ukrainian legislation provides rather strict capitalization requirements for insurance companies. Specifically, the total amount of the authorized capital may only be paid in cash. Certain exemptions exist, however. For instance, cash contributions to the authorized capital may be effectuated by contributing state securities at par value, provided that such contribution does not exceed 25% of the total amount of the authorized capital.

Other assets, including promissory notes, intangible assets, credits, and secured loans, may not be contributed to the authorized capital of an insurance company. Furthermore, cash from the insurance reserve fund may not be used for forming the authorized capital. An insurance reserve fund is created in each company for assuring future payments of insured sums, depending on the insurance and reinsurance types.

Limitations also are placed on an insurance company’s investment activities. For example, the total amount of an insurance company’s contribution to the authorized capital of other Ukrainian insurance companies cannot exceed 30% of its own authorized capital. Further, the amount of investment contributions by an insurance company to each individual insurance company cannot be more than 10%. These limitations, however, are not applied to those non-life insurance companies that make investment contributions to the authorized funds of life insurance companies.

The Insurance Law also establishes minimum capitalization requirements for insurance companies, which are significantly higher than the previously existing minimum capitalization requirements. Currently, the minimum authorized capital of an insurance company is 1,000,000 Euros, while insurance companies which are involved in providing life insurance services must have a minimum authorized capital of 1,500,000 Euros.

F.        Types of Insurance-Related Activities

Ukrainian law provides for an exclusive list of activities, which a non-resident insurance company may carry out. Such activities include:

a)  insurance of several types of risks (cargo transportation, commercial aviation, transportation means, etc.);

b) reinsurance;

c) insurance mediation, such as brokerage or agency operations related to reinsurance and insurance of risks (see item a) above);

d) ancillary insurance services such as consulting services, valuation of actual risks and satisfaction of claims.

An insurance company may also carry out the above activities by providing its services to other insurance companies via joint activity agreements. In addition, an insurance company may also carry out transactions required for the ensuring of its own economic needs.

G.        Licenses

In order for an insurance company to begin its insurance activities, it will need to obtain a license from the State Commission for Regulation of Financial Services Markets of Ukraine (the “Commission”) for each type of intended insurance activity. To do so, an insurance company must first file an application with the Commission, along with the following documents:

a) copies of the company’s founding documents;

b) a bank certificate or audit statement, which confirms the company’s paid in authorized capital;

c) a certificate, confirmed by a licensed auditing firm, evidencing the financial status of the insurance company’s founders (if the insurance company is established in the form of a general partnership, limited partnership or a company with additional liability);

d) the insurance rules and conditions (i.e., policies);

e) the economic grounds for planned insurance (reinsurance) activities; and

f) information about the founders of the insurance company and the chairman and deputies of the management board; a copy of the diploma of the chief executive or his first deputy, evidencing his or her higher economics or legal education; a copy of the diploma of the chief accountant evidencing his or her higher economics education; and information on the availability of the above certificates if the Commission so requires.

The Commission has thirty (30) calendar days to review the above documents and decide whether to grant or deny a license to the insurance company. In case of refusal, the Commission must state in writing the reasons for such refusal. If any changes are introduced into the above documents, the insurer must inform the Commission within a ten-day period from the date of registration of such changes.

Significantly, an insurance company, which receives a license to sell life insurance, does not have the right to carry out any other forms of insurance activities. From October of 2003, all new life insurance licenses are issued for an indefinite period. All licenses issued before October 2003 are valid until their original date of expiration. Thereafter, an application may be filed for a license with an indefinite term

H.  Taxation

1.  Taxation of Resident Insurers

Unfortunately, the Ukrainian taxation system is notorious for its instability and constant changes. Each year, several amendments are made to the Tax Code of Ukraine.

The Tax Code categorizes insurance-related activities as a special type of transaction, subject to a specific tax rate. According to the Tax Code, gross income obtained by Ukrainian resident insurers from insurance activities (except for long-term life and private pension insurance) are taxed at a rate of 3%. For taxation purposes, gross income means the amount of insurance contributions and payments or premiums earned by insurers during the reporting period under agreements for insuring and reinsuring risks on the territory of Ukraine or abroad decreased by the amount of insurance payments (insurance contributions, insurance premiums) paid by the insurer under re-insurance agreements with a resident. Resident insurers are obliged to keep separate accounts of income and expenses connected with their insurance activity.

Please note that transactions associated with life insurance are treated (and registered) separately. Income earned by insurance residents from long-term life and private pension insurance is generally not taxed.

2. Taxation of Non-Resident Insurers

Ukrainian law is highly sensitive about enforcing the taxation of foreign insurance companies earning income from Ukrainian sources. Specifically, current legislation provides that any income obtained by Ukrainian non-residents from Ukrainian sources as a result of carrying out business activities will be taxed in accordance with the procedure and rates provided by the Tax Code.

Insurers or other residents, which make insurance contributions or premiums and insurance payments (compensation) under insurance or reinsurance agreements, including life insurance agreements, in favor of non-residents, are obliged to withhold tax as follows:

1. for insurance payments (compensation) paid in favor of non-resident natural persons under agreements of mandatory types of insurance and under insurance agreements within the system of international agreements “Green Card” – the withholding tax rate is 0%;

2. for insurance payments (compensation) paid in favor of non-residents under agreements on the insurance of risks outside of Ukraine, except those indicated in item 1 above – the withholding tax rate is 4% of the amount to be transferred to the account of the insurer at the moment of the transfer of such amount;

3. upon the conclusion of insurance or reinsurance agreements with qualified non-resident insurers or reinsurers, including agreements concluded via or with the assistance of qualified reinsurance brokers – the withholding tax rate is 0%;

4. in all other cases the withholding tax rate is 12% of the amount of such insurance payments (compensation) at the moment of the transfer of such payments.

I. Accounting Books and Reports

Ukrainian resident insurers must file with the Commission, on a quarterly basis, their balance statements, profit and loss reports and other information, as approved by the owners of such insurance companies. The above reports must be prepared in the manner established by the Commission. The Commission may also require that insurers provide the relevant explanations regarding the above reports. Further, insurance companies must publish their annual balance statements according to the procedure established by the Commission. Finally, a licensed auditor or auditing firm must confirm the authenticity and completeness of such balance statements.

III.      Conclusion

The Ukrainian insurance market is clearly growing fast, and requires significant improvements. In more diplomatic terms, the Ukrainian insurance industry has great potential, which remains largely untapped by Western insurance companies. With nearly forty eight million interested customers, eagerly awaiting the giant foreign insurers and their multi-millions in foreign currency reserves, the potential Ukrainian market is worthy of consideration.

Reluctant as they may be, foreign investors now have a greater opportunity to explore Ukraine’s “great potential.” Should this occur, undoubtedly, a massive influx of foreign insurers into the Ukrainian market will eventually restructure the existing insurance sector. As always, time and fair competition will demonstrate whether such hopes will be realized in Ukraine anytime soon.

 

 

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Frishberg & Partners 2012