Enjoining order issued against offending unregistered foreign companies posing as brokers

Colombo District Court Judge Sujeewa Nishanka issued an interim injunction essentially forbidding any foreign company that is not registered as a company or as insurance brokers from offering any insurance related services in the country. 

The complainant in this case, Strategic Insurance Brokers (SIB), sought an enjoining order against J B Boda and Co of Singapore from holding itself out as an insurance broker. The matter of the enjoining order was taken up on 17 January.

Strategic Insurance Brokers, a brokering company located in Colombo, had sought an injunction preventing the defendant company from holding itself out as an insurance broker or engaging in any activity that concerns insurance brokering services, as it was not registered as a brokering company with the Insurance Regulatory Commission of Sri Lanka, nor was the defendant a member of the accredited Brokers Association of Sri Lanka.

Romesh de Silva, PC, appearing for the complainant SIB, in his submissions before court stated that the defendant company had been making bids for major tenders on insurance-related matters. The plaint filed states that the defendant had been awarded tenders illegitimately by state statutory bodies such as the National Insurance Trust Fund.

Meanwhile, industry sources revealed that National Insurance procurement programs have lapsed as at 31 December 2017 and have not been extended after expiry due to what can only be called irresponsible behaviour and the mala fide attempt to award tenders to illegitimate overseas companies. 

Though the incumbent leader had offered lower premiums with the same panel of underwriters, the new awards were made at excessive exorbitant premiums to the overseas companies, these sources stated.

There is now a process ongoing, challenging these awards, as the line ministry, vigilant of these unauthorised activities, had requested the local brokering company Strategic Insurance Brokers to avail itself of its right to appeal.

The Presidential Appeals Board (PAB), Cabinet Approval Procurement Committee (CAPC) and the Ministerial Procurement Committee (MPC) are currently perusing these appeals against the intent to award several procurements to the overseas companies operating illegitimately. 

The National Procurement Guidelines have been drafted for just such purposes to prevent companies being given awards pending appeal, when tenders are granted at excessive premiums compared to the bids offered by the competition, industry sources stated.

They also added that if foreign companies were appointed to take up national reinsurance brokering assignments, it could very probably lead to corruption, as there is zero accountability regarding these companies’ operations, as the legislation with regard to insurance regulation also suggests.

The State-controlled National Insurance Trust Fund (NITF) has already courted such a calamity.  Though with the approval of CAPC/MPC and cabinet approval for the 2017 programs, there was an automatic one month plus extension from 31 December 2017 on a prorated basis with the incumbent panel of reinsurers, with the incumbent brokers having agreed to renew, the NITF has not acted on such a renewal. But Sri Lankans are exposed to a massive risk for the uninsured period as a result of the above option not being exercised.

During the May flood calamity in 2017 just such a situation occurred when the NITF was flirting with the idea of procuring overseas illegitimate brokers, as they are now doing. When floods devastated the country for a second year in a row during 22 May 2017, the award of the most responsive and competitive bid was delayed. The taxpayer had to foot the enormous bill of flood damage, depriving the poor and marginalised from receiving deserving higher claims and benefits. The much deserved credit for the Yahapalnaya Government that introduced this novel insurance scheme too was not forthcoming as a result.

All this has happened due to what SIB has gone to court against i.e. foreign unregistered companies acting and holding themselves out as insurance brokers when they are clearly not authorised to do so. These companies are not Registered Insurance and Re-Insurance Brokers in Sri Lanka, as required by the Regulation of the Insurance Industry Act No. 43 of 2000, industry sources said.

The complainant company SIB’s Reinsurance Business is ably supported by a majority of the world’s leading underwriters and international brokers including Brokers at Lloyds, thus demonstrating a greater success in all the business placed by them in Sri Lanka. 

More importantly and significantly, in all the tenders of the NITF, for instance, their bids contained the best terms and were the most competitive. This is mainly due to the skills and due diligence practised by them, along with carefully selected international partners and leading brokers in their respective regions.

“It is illegal and contrary to the express provisions of the Regulation of the Insurance Industry Act, No. 43 of 2000 to hold out, retain or entertain such companies as brokers especially in matters of requiring insurance services and procurement,” added industry sources. 

Other Industry Association sources also showed extreme concern over why when there was such a strict regime for registered brokers such overseas companies, including flyby nights operate here unchecked.

Sources said: “They could run away and there is no accountability for persons who are not registered in the country, as required by law.” 

 Section 79 of the Regulation of the Insurance Industry Act, No. 43 of 2000 (as amended) provides that: “No  person  shall  act  or  hold  itself  out as  an  insurance  broker  unless such person is a holder of a certificate of registration as a broker granted by the Board and is a member of an Association of Insurance Brokers approved by the Board.”