Changes to draft resolution
In March 2021 the National Council of Private Insurance published Resolution 407/2021, establishing new guidelines for large-risks insurance contracts.
Resolution 407/2021 was issued following feedback on Draft Resolution 18/2020, which was circulated to the market for discussion in accordance with the Superintendence of Private Insurance's (SUSEP's) standard procedure (for further details please see "Welcome changes to large-risks sector").
According to SUSEP, Resolution 407/2021 aims to deregulate the Brazilian market in order to increase the offer of different and bespoke insurance solutions to sophisticated policyholders. This should increase the scope of insurance cover in the local Brazilian market.
Resolution 407/2021 is largely similar to Draft Resolution 18/2020. The main differences are as follows:
- Directors' and officers' liability insurance is no longer classified as large-risks insurance.
- Stop-loss insurance is no longer classified as large-risks insurance.
- While Draft Resolution 18/2020 classified ports and terminals insurance as large-risks insurance, Resolution 407/2021 classifies all marine insurance as large-risks insurance.
- While Draft Resolution 18/2020 provided for a maximum limit of guarantee of more than R20 million (approximately $3.82 million) for a contract to be considered a large-risks insurance contract, Resolution 407/2021 provides a lower limit of R15 million (approximately $2.86 million).
- Resolution 407/2021 includes additional minimum mandatory clauses that should be included in all large-risks insurance contracts and were not contemplated in Draft Resolution 18/2020 – namely, clauses which:
- specify the maximum limit of indemnity and/or maximum limit of guarantee;
- reference the existence of concurrent policies; and
- specify loss of rights under the policy.
- Freedom of contract continues to be the rule in large-risks insurance contracts, and Resolution 407/2021 confirms that parties are free to determine the terms of their contract, with minimum intervention from SUSEP.
- As anticipated in Draft Resolution 18/2020, Resolution 407/2021 provides that parties must agree in advance which dispute resolution mechanisms will apply. In the event that the parties agree on arbitration, Resolution 407/2021 suggests that they specify the chamber and the applicable arbitration rules in the arbitration clause.
Resolution 407/2021 is a turning point for the Brazilian large-risks insurance market as it separates this type of product from mass insurance, whose regulations tend to be stricter and oriented towards consumer protection.
The new guidelines are a welcome development, particularly as they treat sophisticated parties as equally qualified players which are free to negotiate the terms of their contract. Resolution 407/2021 is expected to create an environment which fosters innovation, acknowledging the importance and specificities of the large-risks sector.
For further information on this topic please contact Geoffrey Conlin or Bernardo de Senna at CAL - Costa, Albino & Lasalvia Advogados by telephone (+55 11 3179 2900) or email ([email protected] or [email protected]). The CAL - Costa, Albino & Lasalvia Advogados website can be accessed at www.cal-law.com.br.