Recently, the President of the APESEG (Peruvian Association of Insurance Companies), Eduardo Moron, expressed his concern regarding the harmful impact that Emergency Decree N ° 003-2017 would have on the insurance market for bond letters and surety bonds that guaranteed the obligations of various members of the so-called construction club (Odebrecht and those associated) before the State. The potential amount that would be the subject of such a demand is estimated at approximately S / 3,800 million, of which 97% would be taken on by foreign reinsurance companies, since national insurers only retained 3%.
The aforementioned Decree was issued to guarantee payment to the State of civil liabilities generated by acts of corruption linked mainly to the Odebrecht mega corruption case. However, this disrupted the payment chain to suppliers and with it brought state works to a standstill, thus resulting in the State being able to execute the bonds or guarantees at any time.
The Project for Law 2408, which will replace the Emergency Decree, remains in discussion and limits the extension of the application of the regulation. However, it is not clear if this new law will eliminate the risk of the aforementioned execution of the surety bonds, as there is still concern over whether it is possible to safeguard the onslaught of a massive claim on these insurances, on the basis of force majeure (or acts by the principal), given that the poor legislative technique employed by the State is one of the main causes of this situation.
This article is written by Pedro Richter at Torres Carpio Portocarrero & Richter Abogados in partnership with DAC Beachcroft LLP.