Are there restrictions or controls over who owns or controls insurers (including restrictions on foreign ownership)? There are generally no restrictions under Gibraltar law on the foreign ownership of Gibraltar-based insurers. However, any person which proposes to either hold or acquire ‘control’ over a Gibraltar insurer must apply for and obtain the approval of the GFSC prior to acquiring such control. The GFSC’s approval process, as established under the FSA, is therefore applicable to all natural persons or body corporates, regardless of nationality or domicile. Is it possible to insure or reinsure risks in your jurisdiction without a licence or authorisation? (i.e. on a non-admitted basis)?What penalty is available for those who operate in your jurisdiction without appropriate permission? In a financial services context, the FSA contains a general prohibition against any person carrying on, or purporting to carry on, by way of business, a regulated activity in Gibraltar, unless that person is either exempt or authorised. This is known as the ‘General Prohibition’ and any person which contravenes the same (subject to some caveats) commits an offence and is liable: (a) on summary conviction, to imprisonment for six months or the statutory maximum fine, or both; and (b) on conviction on indictment, to imprisonment for two years or a fine, or both. There are also restrictions on financial promotions and other similar In addition, key criteria for the authorisation of (re)insurers specifically can be found within the IC Regulations which, currently, preserves the regulatory capital and other provisions largely equivalent to those under the Solvency II Directive. However, since Brexit, the IC Regulations have been subject to some amendments which reflect Gibraltar’s move towards alignment of its laws and regulatory outcomes with those of the UK. In terms of timeframes for obtaining GFSC permission, these will be largely dependent on the quality of the submission/application. However, it is possible to obtain permission from the GFSC for an insurer within a year or two whereby an equivalent application process in the UK, for example, could take approximately twice as long. It should also be noted that the GFSC has also recently issued a consultation paper aimed at establishing an even more streamlined application/ authorisation process. Is authorisation or a licence required and if so, how long does it take on average to obtain such permission? What are the key criteria for authorisation? As regards key criteria for authorisation, these can be distinguished between those which are specific to certain regulated firms/activities and those which are largely cross-sectoral in nature. On the latter, these include certain ‘Threshold Conditions’ and other requirements applicable to all categories of firms in Gibraltar. The Threshold Conditions themselves are prescribed by the FSA and include the requirement for a firm to have its statutory seat and “head office” in Gibraltar, as well as for its business to be conducted with appropriate financial and non-financial resources. 70 LAWYER MONTHLY MARCH 2024
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