The Insurers (Reorganisation and Winding Up) Regulations 2004
| Publication Date: | January 01, 2004 |
2004No. 353
INSOLVENCY
COMPANIES
The Insurers (Reorganisation and Winding Up) Regulations 2004
12thFebruary2004
12thFebruary2004
18thFebruary2004
ARRANGEMENT OF REGULATIONS
PART I
General
1. |
Citation and Commencement |
2. |
Interpretation |
3. |
Scope |
PART II
Insolvency Measures and Proceedings: Jurisdiction in Relation to Insurers
4. |
Prohibition against winding up etc. EEA insurers in the United Kingdom |
5. |
Schemes of arrangement: EEA insurers |
6. |
Reorganisation measures and winding up proceedings in respect of EEA insurers effective in the United Kingdom |
7. |
Confirmation by the court of a creditors' voluntary winding up |
PART III
Modifications of the Law of Insolvency: Notification and Publication
8. |
Modifications of the law of insolvency |
9. |
Notification of relevant decision to the Authority |
10. |
Notification of relevant decision to EEA regulators |
11. |
Publication of voluntary arrangement, administration order appointment of administrator, winding up order or scheme of arrangement |
12. |
Notification to creditors: winding up proceedings |
13. |
Submission of claims by EEA creditors |
14. |
Reports to creditors |
15. |
Service of notices and documents |
16. |
Disclosure of confidential information received from an EEA regulator |
PART IV
Priority of Payment of Insurance Claims in Winding Up etc.
17. |
Interpretation of this Part |
18. |
Application of regulations 19 to 27 |
19. |
Application of this Part: assets subject to a section 425 or Article 418 compromise or arrangement |
20. |
Preferential debts: disapplication of section 175 of the 1986 Act or Article 149 of the 1989 Order |
21. |
Preferential debts: long term insurers and general insurers |
22. |
Composite insurers: preferential debts attributable to long term and general business |
23. |
Preferential debts: long term business of a non-transferring composite insurer |
24. |
Preferential debts: general business of a composite insurer |
25. |
Insufficiency of long term business assets and general business assets |
26. |
Composite insurers: excess of long term business assets and general business assets |
27. |
Composite insurers: application of other assets |
28. |
Composite insurers: proof of debts |
29. |
Composite insurers: general meetings of creditors |
30. |
Composite insurers: apportionment of costs payable out of the assets |
31. |
Summary remedy against liquidators |
32. |
Priority of subrogated claims by the Financial Services Compensation Scheme |
33. |
Voluntary arrangements: treatment of insurance debts |
PART V
Reorganisation or Winding Up of UK Insurers: Recognition of EEA Rights
34. |
Application of this Part |
35. |
Application of this Part: assets subject to a section 425 or Article 418 compromise or arrangement |
36. |
Interpretation of this Part |
37. |
EEA rights: applicable law in the winding up of a UK insurer |
38. |
Employment contracts and relationships |
39. |
Contracts in connection with immovable property |
40. |
Registrable rights |
41. |
Third parties' rights in rem |
42. |
Reservation of title agreements etc. |
43. |
Creditors' rights to set off |
44. |
Regulated markets |
45. |
Detrimental acts pursuant to the law of an EEA State |
46. |
Protection of third party purchasers |
47. |
Lawsuits pending |
PART VI
Reorganisation or Winding Up of Third Country Insurers
48. |
Interpretation of this Part |
49. |
Application of these Regulations to a third country insurer |
50. |
Disclosure of confidential information: third country insurers |
PART VII
Revocation and Amendments
51. |
Amendment of the Insurers (Winding Up) Rules 2001 and the Insurers (Winding Up) (Scotland) Rules 2001 |
52. |
Financial Services and Markets Act 2000 (Administration Orders Relating to Insurers) Order 2002 |
53. |
Revocation and Transitional |
The Treasury, being a government department designated( 1) for the purposes of section 2 (2) of the European Communities Act 1972( 2) in relation to the insolvency of insurers, in exercise of the powers conferred by that section, hereby make the following Regulations:
PART I
GENERAL
Citation and Commencement
1. These Regulations may be cited as the Insurers (Reorganisation and Winding Up) Regulations 2004, and come into force on 18th February 2004.
Interpretation
2. - (1) In these Regulations -
"the 1985 Act" means the Companies Act 1985( 3);
"the 1986 Act" means the Insolvency Act 1986( 4);
"the 2000 Act" means the Financial Services and Markets Act 2000( 5);
"the 1989 Order" means the Insolvency (Northern Ireland) Order 1989( 6);
"administrator" has the meaning given by paragraph 13 of Schedule B1;
"Article 418 compromise or arrangement" means a compromise or arrangement sanctioned by the court in relation to a UK insurer under Article 418 of the Companies Order, but does not include a compromise or arrangement falling within Article 420 or Articles 420A of that Order (reconstruction and amalgalations);
"the Authority" means the Financial Services Authority;
"branch", in relation to an EEA or UK insurer has the meaning given by Article 1(b) of the life insurance directive or the third non-life insurance directive;
"claim" means a claim submitted by a creditor of a UK insurer in the course of -
(a) a winding up,(b) an administration, or(c) a voluntary arrangement,with a view to recovering his debt in whole or in part, and includes a proof of debt, within the meaning of Rule 4.73(4) of the Insolvency Rules, Rule 4.079(4) of the Insolvency Rules (Northern Ireland) or in Scotland a claim made in accordance with rule 4.15 of the Insolvency (Scotland) Rules;
"the Companies Order" means the Companies (Northern Ireland) Order 1986( 7);
"creditors' voluntary winding up" has the meaning given by section 90 of the 1986 Act or Article 76 of the 1989 Order;
"debt" -
(a) in England and Wales and Northern Ireland - (i) in relation to a winding up or administration of a UK insurer, has the meaning given by Rule 13.12 of the Insolvency Rules or Article 5 of the 1989 Order, and(ii) in a case where a voluntary arrangement has effect, in relation to a UK insurer, means a debt which would constitute a debt in relation to the winding up of that insurer, except that references in paragraph (1) of Rule 13.12 or paragraph (1) of Article 5 of the 1989 Order to the date on which the company goes into liquidation are to be read as references to the date on which the voluntary arrangement has effect;(b) in Scotland - (i) in relation to a winding up of a UK insurer, shall be interpreted in accordance with Schedule 1 to the Bankruptcy (Scotland) Act 1985( 8) as applied by Chapter 5 of Part 4 of the Insolvency (Scotland) Rules, and(ii) in a case where a voluntary arrangement has effect in relation to a UK insurer, means a debt which would constitute a debt in relation to the winding up of that insurer, except that references in Chapter 5 of Part 4 of the Insolvency (Scotland) Rules to the date of commencement of winding up are to be read as references to the date on which the voluntary arrangement has effect;"directive reorganisation measure" means a reorganisation measure as defined in Article 2(c) of the reorganisation and winding-up directive which was adopted or imposed on or after 20th April 2003;
"directive winding up proceedings" means winding up proceedings as defined in Article 2(d) of the reorganisation and winding-up directive which were opened on or after 20th April 2003;
"EEA creditor" means a creditor of a UK insurer who -
(a) in the case of an individual, is ordinarily resident in an EEA State, and(b) in the case of a body corporate or unincorporated association of persons, has its head office in an EEA State;"EEA insurer" means an undertaking, other than a UK insurer, pursuing the activity of direct insurance (within the meaning of Article 1 of the first life insurance directive or the first non-life insurance directive) which has received authorisation under Article 6 from its home state regulator;
"EEA regulator" means a competent authority (within the meaning of Article 1(1) of the life insurance directive or Article 1(k) of the third non-life insurance directive, as the case may be) of an EEA State;
"EEA State" means a State, other than the United Kingdom, which is a contracting party to the agreement on the European Economic Area signed at Oporto on 2 May 1992;
"the first non-life insurance directive" means the Council Directive (73/239/EEC) of 24 July 1973 on the co-ordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of direct insurance other than life assurance( 9);
"home state regulator", in relation to an EEA insurer, means the relevant EEA regulator in the EEA State where its head office is located;
"the Insolvency Rules" means the Insolvency Rules 1986( 10);
"the Insolvency Rules (Northern Ireland)" means the Insolvency Rules (Northern Ireland) 1991( 11);
"the Insolvency (Scotland) Rules" means the Insolvency (Scotland) Rules 1986( 12);
"insurance claim" means any claim in relation to an insurance debt;
"insurance creditor" means a person who has an insurance claim against a UK insurer (whether or not he has claims other than insurance claims against that insurer);
"insurance debt" means a debt to which a UK insurer is, or may become liable, pursuant to a contract of insurance, to a policyholder or to any person who has a direct right of action against that insurer, and includes any premium paid in connection with a contract of insurance (whether or not that contract was concluded) which the insurer is liable to refund;
"life insurance directive" means the Directive (2002/83/EC) of the European Parliament and of the Council concerning life assurance;
"officer", in relation to a company, has the meaning given by section 744 of the 1985 Act or Article 2 of the Companies Order;
"official language" means a language specified in Article 1 of Council Regulation No 1 of 15th April 1958 determining the languages to be used by the European Economic Community (Regulation 1/58/EEC)( 13) , most recently amended by paragraph (a) of Part XVIII of...
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