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Employment & Benefits
Labour Tribunal orders claimant to provide security payment – speed bump for parties with weak claimsHong Kong | 30 January 2019
Since 2014 the Labour Tribunal has had the power to order parties to provide security for awards or orders. The grounds for making such an order are relatively broad and give the tribunal considerable discretion. However, there has been little case law on how this discretion should be exercised. A recent Court of First Instance decision sheds some light on this area of law.
A Hong Kong court recently considered the enforcement of a non-solicitation clause against an employee who was employed as a delivery worker. The court's observations in this case as regards the enforceability of non-solicitation clauses reiterate the well-established position that employers have no right to be protected against competition per se.
In Hong Kong, there is an increasing emphasis on the importance of reciprocal duties of trust and confidence between employers and employees. 'Moonlighting' employees (even ones who take up ancillary employment with a non-direct competitor) often sit in a legally precarious position, since questions are bound to arise in relation to their fiduciary duties, restrictive covenants and the implied term of trust and confidence.
The Basic Law states that "the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law". This protection is understood to be limited to marriage between monogamous heterosexual couples, which has led to debate on the equal treatment of homosexual couples. The principal issue is that treating same-sex relationships differently is discriminatory. The Court of Appeal recently considered this issue from an employment perspective.
The Competition Commission recently issued an advisory bulletin on the potential risks that could arise under the Competition Ordinance (Cap 619) in the employment context. The commission identified a number of practices between employers which are at risk of contravening the First Conduct Rule of the ordinance – specifically, wage-fixing and non-poaching agreements and the exchange of sensitive information.
In a recent case, a senior employee was found to have acted as a de facto director of the plaintiff company as a result of her position and responsibilities within the company. Consequently, the employee was held to have breached the fiduciary duties which she owed to the company by diverting business opportunities away from it and making unauthorised use of its resources.
The Hong Kong Insurance Authority (HKIA) will take over the regulation of insurance intermediaries from the three self-regulatory organisations in mid-2019. Given that there are several sets of competence standards across these organisations, it is necessary to consolidate and update them in line with the statutory requirements to improve protection for policyholders. As such, the HKIA recently held a public consultation on two guidelines under the Insurance Ordinance (Cap 41).
The Hong Kong Insurance Authority (HKIA) has achieved a consensus with the China Banking and Insurance Regulatory Commission that the latter will provide preferential treatment to Hong Kong reinsurers by reducing the reinsurance credit risk requirement under China's Risk-Oriented Solvency System for mainland insurers that use Hong Kong reinsurers authorised by the HKIA. This new arrangement should improve Hong Kong's credentials as an Asian reinsurance hub.
The Hong Kong Insurance Authority recently released a draft guideline on enterprise risk management as part of Hong Kong's move towards a risk-based capital regime. The draft guideline considers the recent consultation and review of the relevant insurance core principles by the International Association of Insurance Supervisors and aims to nurture a strong risk culture which reflects the values, attitudes and norms of business behaviour.
Lawmakers recently met to discuss a new bill to establish a policyholders' protection scheme to protect policyholders' interests in case an insurer becomes insolvent. This safety net will cover individuals, small and medium-sized enterprises and building owners' corporations. All authorised insurers in Hong Kong will have to participate and pay an initial levy to build up the two compensation funds – namely, the life fund (for long-term policies) and the non-life fund (for general policies).
If a policyholder is dissatisfied with the conduct of an insurer, agent or broker, there are various channels for making a complaint. One such channel is the Insurance Claims Complaints Bureau, which was recently revamped to provide Hong Kong's insurance industry with improved methods of settling personal insurance claims and disputes by providing policyholders with an alternative dispute resolution process.
The Insurance Authority has launched two new initiatives to promote the use of 'insurtech' in Hong Kong and encourage insurers and technology companies to team up to develop innovative insurance technology in light of recent market trends. The initiatives aim to promote the development of new technologies in Hong Kong's insurance sector and maintain Hong Kong's competitiveness in the Asian market.
The Insurance Authority will begin to collect a levy from policyholders through premium payments to insurers from January 1 2018. Holders of life insurance policies and general insurance policies (eg, travel, motor, property and household) will be required to pay the levy; however, reinsurers, policies underwritten by captive insurers and marine, aviation and goods-in-transit businesses are exempt.
The Insurance Agents Registration Board recently initiated disciplinary proceedings against a former AIA International Limited agent for breaches of the Code of Practice issued by the Hong Kong Federation of Insurers. The resulting disciplinary action included a payment order of HK$806,200 against AIA; however, this decision was reversed by the Court of First Instance following a judicial review.
The Office of the Commissioner of Insurance and the China Insurance Regulatory Commission recently signed an agreement to conduct an equivalence assessment on the insurance solvency regulatory regimes of Hong Kong and mainland China, as well as to implement procedures and transitional arrangements to increase cooperation between the two insurance regulatory bodies.
The Hong Kong Financial Services Development Council recently released a report entitled Turning Crisis into Opportunities: Hong Kong as an Insurance Hub with Development Focuses on Reinsurance, Marine and Captive. Pointing out that Hong Kong is facing stiff competition from regional competitors, the report identifies opportunities to strengthen Hong Kong's position in the reinsurance and insurance industry.
Hong Kong's largest health insurer, AIA, recently issued letters to doctors in private practice advising them that it is clarifying the policy wording for 'medically necessary' procedures. In an attempt to avoid reimbursing what it regards as 'excessive health procedures' at private hospitals, AIA is proposing that only seven significant comorbidity and five acute conditions be recommended for inpatient care.
The proposed new Apology Bill encourages apologies in disputes by removing legal disincentives to apologising (making an apology inadmissible in lawsuits and ensuring that insurance coverage is not affected), with the aim of promoting the settlement and resolution of disputes and reducing litigation. There are clear advantages for insurers in the enactment of this legislation, as they will not need to be concerned with expressions of regret prejudicing the defence of a claim.
Although the new Independent Insurance Authority is expected to become operational at the end of 2016, changes to insurance industry regulation are already underway. The Office of the Commissioner of Insurance recently issued the revised Guidance Note on the Corporate Governance of Authorised Insurers, which aims to enhance the integrity of Hong Kong's insurance industry by providing guidance to insurers for the evaluation and establishment of their internal practices and procedures.
The China Insurance Regulatory Commission (CIRC) recently issued a public statement regarding the purchase of Hong Kong insurance policies by mainland customers. The CIRC warned mainland purchasers of the legal, financial and policy risks of buying Hong Kong insurance products. So what does this mean for Hong Kong's insurance regulators and insurers?
Following the deadliest hot air ballooning disaster in history, the coroner recently provided recommendations to the Travel Industry Council. Insurers selling travel insurance policies will need to abreast of any new regulations, to ensure that those who purchase travel insurance understand the extent of their coverage, particularly concerning potentially risky activities.
The Hong Kong District Court recently addressed the issue of whether money to be paid out to a beneficiary under a life insurance policy is considered to be held on trust by the administrators of the deceased's estate. The District Court determined that money to be paid out to the spouse or child under the deceased's life insurance policy is deemed a statutory trust under the Married Persons Status Ordinance.
The Court of Final Appeal recently handed down a decision concerning the duty of care owed by insurance agents (who represent or work exclusively for an insurer, advising or arranging contracts of insurance) to their technical representatives (who provide advice to an insured or potential insured, or arrange contracts of insurance on behalf of insurance agents) in respect of compliance with the industry's reporting regulations.
The recent riots in Mong Kok raise questions for insurance policyholders claiming property damage and consequential loss resulting from a riot or similar circumstances. Although Hong Kong continues to remain an open, safe and free economy, businesses and commercial property landlords may want to re-evaluate their insurance and consider adding property all-risks insurance and business interruption insurance.
The Hong Kong Court of First Instance recently issued a decision concerning the interpretation of insurance agency contracts. The case related to a clawback provision in an agent's employment contract, which entitled the employer to a refund of extra inducement payments if the employee failed to fulfil the conditions required for remuneration of the payments.
The Hong Kong police recently conducted a sting operation and raid on the Hong Kong corporate office of US international transportation network company Uber. The crux of the issue is whether Uber discharged its duty to disclose that its vehicles were potentially licensed incorrectly or not at all in accordance with the Road Traffic Ordinance. This update examines an insurer's options should this be the case.
The Insurance Companies (Amendment) Bill 2014 was recently passed by the Hong Kong Legislative Council. The accompanying Insurance Companies (Amendment) Ordinance 2015 provides for, among other things, the establishment of the Independent Insurance Authority and a statutory licensing regime for insurance intermediaries to replace the existing self-regulatory system.
The Insurance Companies (Amendment) Bill 2014 proposes to amend the Insurance Companies Ordinance and establish the Independent Insurance Authority (IIA). In focusing on the wide array of powers and offences created by the bill, the IIA means business – the business of better protection for policyholders, robust regulation of insurers and insurance intermediaries and severe consequences for non-compliance.
To better protect policyholders' interests, maintain market stability and enhance competitiveness, a consultation on the proposed establishment of a policyholders' protection fund (PPF) was conducted. The Financial Services and Treasury Bureau recommends that the PPF be established by legislation and administered by a statutory body to ensure a high level of certainty, transparency and accountability in its implementation.
The Financial Services and Treasury Bureau, the Hong Kong Monetary Authority, the Securities and Futures Commission and the Insurance Authority have jointly published an initial and second consultation paper on establishing an effective resolution regime for financial institutions – including insurers – in Hong Kong.
In September 2014 the Insurance Authority launched a consultation on the development of a proposed risk-based capital framework for the insurance industry, which seeks to align Hong Kong's regime with international requirements and make capital requirements more sensitive to the levels of risk borne by insurance companies. The proposed framework comprises quantitative aspects, qualitative aspects and disclosure requirements.
The Court of Final Appeal has upheld the Court of Appeal's ruling in Hua Tyan Development Ltd v Zurich Insurance Co Ltd. The court decided in favour of the insurer in respect of a claim arising from the insured's breach of warranty under a marine insurance contract. According to the ruling, insurers are not obliged to perform due diligence to discover facts about the insured just because those facts are in the public domain.
The Hong Kong Court of Appeal has overturned a lower court's decision in Dah Sing Insurance Services Ltd v Singh. The district court had ruled in favour of an insurance agent in respect of a negligence claim arising from a breach of statutory duty by the insurer. The appeal court held that the insurance agent had no cause of action for negligence against the insurer.
Notwithstanding the relatively slow development of captive insurance in Asia, more enterprises in the region have begun to turn to captive insurance to manage risks as their businesses become more sophisticated. The recently passed Inland Revenue (Amendment) (No 3) Bill reflects the government's determination to promote Hong Kong as a captive insurance hub.
The Insurance Companies (Amendment) Bill, which proposes the establishment of the Independent Insurance Authority (IIA), was recently published. Passage of the bill will align Hong Kong with other countries that have already established similar insurance regulators that are independent of the government. The IIA should ultimately regulate the industry more effectively and offer better protection to policyholders.
The new Companies Ordinance was recently enacted, which provides greater certainty in respect of directors' duties and liabilities. It also sends an important message to insurers that provide directors' and officers' coverage to companies. Insurers should consider whether they need to provide an extended scope of coverage in respect of directors' liabilities.
Insurance policies commonly include a clause to limit the insurer's exposure to litigation or arbitration by exempting it from liability for claimed losses if an action is not brought within a certain period. Although the law provides for a six-year limitation period, many policies provide for a shorter period. The Court of First Instance recently examined the practice of an insurer in relation to a similar clause contained in an insurance policy.
Following a Court of First Instance decision that cast doubts on the level of due diligence required of insurers and the extent to which insured parties can avoid their duty of disclosure, the Court of Appeal has overturned the lower court's decision. In a judgment that should provide a degree of comfort for insurers, the appeal court held that the insured was still required to disclose information, so long as it was material to the risk.
Over the past few months, the courts have handed down a number of decisions on insurance agency contracts entered into between agents and insurers. It is common practice to include clawback provisions in such contracts to serve as an incentive for a longer relationship. A 'clawback' provision is a term which offers an extra inducement payment to attract veterans of the profession to join new companies.
Following a 2012 Court of First Instance decision, the transfer of insurance business from one insurer to another has once again fallen under the spotlight. In exercising its discretion to approve a transfer, the court recently reaffirmed the principles laid down in the leading English authority of Re London Life Association Ltd, which has been applied in a series of similar petitions in Hong Kong.
Interim insurance contracts are often used to cover the time lapse that arises between the submission of a policy proposal and the completion of the proposed insurance policy. A recent case clarified the legal position in relation to the terms incorporated in interim insurance contracts. In particular, the case concerned cover notes issued for motor vehicle insurance policies in Hong Kong.
The Contracts (Rights of Third Parties) Bill 2013 aims to reform the doctrine of privity by conferring rights on third parties to a contract. While the bill does reform a fundamental principle of contract law by conferring rights on third parties, it does not completely abolish the doctrine of privity. This flexibility gives parties an option to contract out of third-party rights by including exclusion clauses in contracts.
The recent hot air balloon accident in Egypt – which killed nine Hong Kong residents – has sparked public concern over the regulation of the Hong Kong insurance industry. A proposed new regulatory regime, which includes the introduction of a new insurance regulator, aims to bring much-needed protection to policyholders and restore public confidence in the industry.
A recent landmark decision has significantly lowered the net rate of return in personal injury actions and held that different rates should apply to victims of different needs. The ruling is expected to have a far-reaching impact on the assessment of insurance payouts and insurance policy premiums for future personal injury actions in Hong Kong.
A recent Court of First Instance decision has clarified the role that the court plays in a proposed transfer of insurance business from one insurer to another. The fundamental question for the court to consider in such cases is whether the transfer as a whole is fair as between the interests of the different classes of person affected, not whether it represents the best possible option for policyholders.
Hong Kong recently witnessed one of its worst maritime disasters when the collision of a pleasure boat with an island ferry turned what was intended to be a day of celebrations into one of mourning. The tragedy has prompted the government to consider tightening existing maritime safety rules, with proposals that are expected to bring about major changes in insurance for local ships.
The High Court decision in Hua Tyan Development Limited v Zurich Insurance Company Limited confirms that an insurer owes a duty of disclosure to its insured. Since an insurance broker acts as an agent of an insurer, any duty owed to the insured must be performed by the broker as an agent of the insurer and any breach of duty by the broker should also be treated as a breach by the insurer.
The District Court decision in Dah Sing Insurance Services Limited v Singh confirms that the breach of an insurer's reporting obligations breaches not only the insurer's statutory obligations under the Code of Practice for the Administration of Insurance Agents issued by the Hong Kong Federation of Insurers, but also the duty of care owed to the agent in negligence.
The Financial Services and Treasury Bureau's consultation on the Policyholders' Protection Fund has revealed general public and industry support for the proposal. Its final conclusions touch on aspects such as coverage, the appropriate level of compensation and compensation basis, the funding mechanism and governance arrangements.
A change to the investment threshold for Hong Kong insurance brokers under the Closer Economic Partnership Arrangement represents a significant business opportunity for the Hong Kong industry. It allows Hong Kong insurance brokerage companies to establish wholly owned insurance agency companies in Guangdong province (including Shenzhen) on a pilot basis to sell insurance on behalf of insurance companies.
A recent judgment has confirmed that the customary practice of insurance brokers receiving commission from insurers is not contrary to Section 9 of the Prevention of Bribery Ordinance, provided that the commission is not in excess of the normal level of commission paid in the insurance market and the broker had made disclosure to its client.