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COBS 21.3 Further rules for firms engaged in linked long-term insurance business4

Application

COBS 21.3.-1R

4The rules in this section apply to linked long-term contracts of insurance where the investment risk is borne by a policyholder who is a natural person.

Permitted links

COBS 21.3.1R

An insurer must not contract to provide benefits under linked long-term contracts of insurance4 that are determined:

4
  1. (1)

    wholly or partly, or directly or indirectly, by reference to fluctuations in any index other than an approved index;

  2. (2)

    wholly or partly by reference to the value of, or the income from, or fluctuations in the value of, property other than any of the following:

    1. (a)

      approved securities;

    2. (b)

      listed securities;

    3. (c)

      permitted unlisted securities;

    4. (d)

      permitted land and property;

    5. (e)

      permitted loans;

    6. (f)

      permitted deposits;

    7. (g)

      permitted scheme interests;

    8. (h)

      approved money market instruments meeting the requirements in COBS 21.3.6 R to COBS 21.3.8 G;4

      4
    9. (i)

      cash;

    10. (j)

      permitted units;

    11. (k)

      permitted stock lending; and

    12. (l)

      permitted derivatives contracts.

COBS 21.3.1AR

4A firm must classify the types of property listed in COBS 21.3.1R (2)(a) to (2)(l) according to their economic behaviour ahead of their legal form.

COBS 21.3.2G
  1. (1)

    Nothing in these rules prevents a firm making allowance in the value of any permitted link for any notional tax loss associated with the relevant linked assets for the purposes of fair pricing.3

  2. (2)

    In the FCA's5 view the Consumer Prices Index, as well as the Retail Prices Index, is a national index of retail prices and so may be used as an approved index for the purposes of COBS 21.3.1R (1).3

Money-market instruments

COBS 21.3.6R

4A money-market instrument will be regarded as normally dealt in on the money market if it:

  1. (1)

    has a maturity at issuance of up to, and including, 397 days; or

  2. (2)

    has a residual maturity of up to, and including, 397 days; or

  3. (3)

    undergoes regular yield adjustments in line with money market conditions at least every 397 days; or

  4. (4)

    undergoes regular yield adjustments in line with money market conditions at least every 397 days.

COBS 21.3.7R
  1. (1)

    4A money-market instrument will be regarded as liquid if it can be sold at limited cost in an adequately short timeframe.

  2. (2)

    A money-market instrument will be regarded as having a value which can be accurately determined at any time if accurate and reliable valuations systems, which fulfil the following criteria, are available:

    1. (a)

      enabling the firm to calculate a net asset value in accordance with the value at which the instrument held in the portfolio could be exchanged between knowledgeable willing parties in an arm's length transaction; and

    2. (b)

      based either on market data or on valuation models, including systems based on amortised costs.

  3. (3)

    A money-market instrument that is normally dealt in on the money market and is admitted to, or dealt in, on an eligible market will be presumed to be liquid and have a value which can be accurately determined at any time, unless there is information available to the firm that would lead to a different determination.

COBS 21.3.8G

4A firm should assess the liquidity of a money-market instrument in accordance with CESR's UCITS eligible assets guidelines, with respect to article 4(1) of the UCITS eligible assets Directive.

Permitted stock lending transactions

COBS 21.3.9R

4A permitted stock lending transaction is one which, for a Solvency II firm, satisfies the requirements in COBS 21.3.11 R to COBS 21.3.12 R and, for an insurer which is not a Solvency II firm, satisfies INSPRU 3.2.36A R to INSPRU 3.2.42 G.

COBS 21.3.10R

4The specific method of stock lending permitted is an arrangement of the kind described in section 263B of the Taxation of Chargeable Gains Act 1992, under which the lender transfers securities to the borrower other than by way of sale and the borrower is to transfer those securities, or securities of the same type and amount, back to the lender at a later date. In accordance with good market practice, a separate transaction by way of transfer of assets is also involved for the purpose of providing collateral to the "lender" to cover him against the risk that the future transfer back of the securities may not be satisfactorily completed.

Stock lending: requirements

COBS 21.3.11R
  1. (1)

    4The stock lending arrangement is of the kind described in section 263B of the Taxation of Chargeable Gains Act 1992 (without extension by section 263C), and:

    1. (a)

      all the terms of the agreement under which securities are to be reacquired by the firm for the account of the unit-linked fund are in a form which is acceptable to the firm and in accordance with good market practice;

    2. (b)

      the counterparty is:

      1. (i)

        an authorised person; or

      2. (ii)

        a person authorised by a Home State regulator; or

      3. (iii)

        a person registered as a broker-dealer with the Securities and Exchange Commission of the United States of America; or

      4. (iv)

        a bank, or a branch of a bank, supervised and authorised to deal in investments as principal, with respect to OTC derivatives, by at least one of the following federal banking supervisory authorities of the United States of America:

        1. (A)

          [deleted]5;

        2. (B)

          the Federal Deposit Insurance Corporation;

        3. (C)

          the Board of Governors of the Federal Reserve System; and

        4. (D)

          the Office of Thrift Supervision; and

    3. (c)

      collateral is obtained to secure the obligation of the counterparty under the terms in (a) and the collateral is:

      1. (i)

        acceptable to the firm;

      2. (ii)

        adequate; and

      3. (iii)

        sufficiently immediate; and

    4. (d)

      for the purposes of property-linked assets only:

      1. (i)

        where the linked policyholder bears the whole of the risk associated with the stock lending transaction, the linked policyholder receives the whole of the recompense (net of fees and expenses);

      2. (ii)

        the extent of any risk that the linked policyholder bears in relation to the stock lending transaction is disclosed to them; and

      3. (iii)

        where the risk associated with the stock lending transaction is borne outside the linked fund, the linked fund receives a fair and reasonable recompense for the use of the linked policyholders' funds.

  2. (2)

    The counterparty for the purpose of (1) is the person who is obliged under the agreement in (1)(a) to transfer to the firm the securities transferred by the firm under the stock lending arrangement or securities of the same kind.

  3. (3)

    COBS 21.3.11R (1)(c) does not apply to a stock lending transaction made through Euroclear Bank SA/NV’s Securities Lending and Borrowing Programme.

Stock lending: treatment of collateral

COBS 21.3.12R
  1. (1)

    4Collateral is adequate for the purposes of this section only if it is:

    1. (a)

      transferred to the firm or the firm's agent;

    2. (b)

      at least equal in value, at the time of the transfer to the firm or its agent, to the value of the securities transferred by the firm; and

    3. (c)

      in the form of one or more of:

      1. (i)

        cash;

      2. (ii)

        a certificate of deposit;

      3. (iii)

        a letter of credit;

      4. (iv)

        a readily realisable security;

      5. (v)

        commercial paper with no embedded derivative content;

      6. (vi)

        a qualifying money market fund.

  2. (2)

    Collateral is sufficiently immediate for the purposes of this section if:

    1. (a)

      it is transferred before or at the time of the transfer of the securities by the firm; or

    2. (b)

      the firm takes reasonable care to determine at the time referred to in (a) that it will be transferred at the latest by the close of business on the day of the transfer.

  3. (3)

    The firm must ensure that the value of the collateral at all times is at least equal to the value of the securities transferred by the firm.

  4. (4)

    The duty in (3) may be regarded as satisfied in respect of collateral the validity of which is about to expire, or has expired, where the firm takes reasonable care to determine that sufficient collateral will be transferred, at the latest, by the close of business on the day of expiry.

Requirements for derivative contracts

COBS 21.3.13R

4A permitted derivatives contract is one which:

  1. (1)

    for a Solvency II firm, is effected or issued:

    1. (a)

      on or under the rules of a regulated market; or

    2. (b)

      off-market with an approved counterparty; and

    satisfies COBS 21.3.14 G; and

  2. (2)

    for an insurer which is not a Solvency II firm, satisfies INSPRU 3.2.5 R to INSPRU 3.2.35A G with the exception of INSPRU 3.2.18 R; and

  3. (3)

    in each of (1) and (2) the provisions are applied in relation to assets covering liabilities in respect of linked long-term contracts of insurance.

COBS 21.3.14G

4Solvency II firms5 are also required to comply with the PRA Rulebook Solvency II Firms Investment and ensure that the use of derivative contracts is adequately covered. Firms are also referred to the rules in COLL 5.3 (Derivative Exposure) in relation to the use of derivatives in investment funds and the further guidance from CESR and its successor body, ESMA, which represent good practice in this area.