IUA Circular 027/18

Risk Transfer and Non Risk Transfer Terms of Business Agreements:
GDPR and Criminal Finances Act 2017 - amended model agreements and endorsements

Date: 22 March 2018

Interest Groups: IUA contacts, compliance interests, underwriting interests, legal and regulatory interests, clauses interests

Subject:  Publication of amended Non Risk Transfer Terms of Business Agreement and Risk Transfer Terms of Business Agreement

IUA Contact:  Helen Dalziel, Senior Legal and Market Services Executive (020 7617 5449)

The IUA, in conjunction with LIIBA, has amended the model Non Risk Transfer Terms of Business Agreement (NRT TOBA) and Risk Transfer Terms of Business Agreement (RT TOBA) to reflect the General Data Protection Regulation (which comes into effect on 25 May 2018) and the Criminal Finances Act 2017 (already in effect). These are model agreements for use by the company market and brokers (the LMA has made similar amendments in respect of the equivalent Lloyd’s managing agent agreements).

The updated TOBAs and endorsements are available to download via the links above and comprise the following.

Non risk transfer agreements:

• NRT TOBA 2018;
• Separate GDPR and CFA Endorsements for use with the NRT TOBA 2011 (amended May 2013);
• Marked-up NRT TOBA (pdf) showing changes between the NRT TOBA 2018 and the NRT TOBA 2011 (amended May 2013).

Risk transfer agreement:

• RT TOBA 2018;
• Marked-up RT TOBA (pdf) showing changes between the RT TOBA 2018 and RT TOBA 2017.

These documents will also be posted on a dedicated TOBA page of the IUA website. In addition, the IUA has established a Data Protection mailing list in order to keep members up to date with developments relating to this topic. If you would like to join this or any other IUA mailing lists, please click here and make the appropriate selections.  

Explanatory notes:

• The NRT TOBA endorsements have been produced for use with the NRT TOBA 2011 (as amended in May 2013), so that form of agreement can be updated by endorsement as an alternative to entering into a new TOBA. Please note that if you are updating an agreement which varies from the model 2011 agreement, then the endorsements may need to be appropriately tailored (e.g. as to clause numbering).
• We have not produced model endorsements for use with existing RT TOBAs. This is because we understand that some firms with risk transfer arrangements have TOBAs dating from 2005, which may or may not have been endorsed subsequently. There is a risk that new model GDPR and CFA endorsements would not tie in with the actual underlying arrangements. However, for firms which wish to amend older TOBAs, the CFA and GDPR amendments are all contained in Sections 8 and 9 of the new 2018 TOBAs. Therefore, subject to appropriate tailoring, Section 8 and Section 9 of the 2018 TOBAs may be used in their entirety as addenda to existing TOBAs. (The RT TOBA 2017 mentioned above is the amalgam of the RT TOBA 2005 and earlier endorsements.)
• We have made some further changes to the RT TOBA 2018 so that, apart from the operative risk transfer provisions in Section 6, the remainder of this agreement aligns to the NRT TOBA 2018 and also includes the deletion of some termination wording in clause 24, Force Majeure, as this was not present in the NRT TOBA, nor the LMA versions (these changes can be seen in the RT TOBA mark-up listed above).
• As with all model agreements, these are published to assist the market, and firms may tailor them according to their own particular arrangements.

We are grateful to Clyde & Co who provided advice in relation to these new model agreements.