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​SUSEP submitted for public consultation a Resolution draft that creates a local reinsurer whose exclusive purpose is to accept risks in reinsurance and retrocession and issue securities backed by these same risks

On July 10, 2020, Brazilian Private Insurance Authority (SUSEP) submitted a Resolution draft for public consultation which allows the issuance, by certain regulated entities, of securities linked to (re)insurance risks, namely, the Insurance-Linked Securities (ILS).
 
The draft, if approved, will break new ground and bring innovation to the Brazilian (re)insurance market. Fund-raising via ILS will be a new option for the financing and transfer of insurance and reinsurance risks by regulated entities. ILS already attracts billions in the international market and such innovation will allow that a portion of such investments flows to Brazil. At the same time, ILS will allow that risks are absorbed by the insurance market and transferred to capital markets at a lower cost, as it will not require the corresponding regulatory capital, which could result in lower costs for insureds.
 
It is possible to present suggestions to the Resolution draft by August 11, 2020.
The Terms of the Resolution Draft
 
ILS are financial instruments, whose performance is based on specific insurance or actuarial risks, such as those related to (i) natural catastrophes (cat bonds), (ii) mortality, or (iii) disability, among others, as set forth in each instrument.

The draft will create a specific risk-carrying vehicle in the form of a local reinsurer named “exclusive purpose reinsurer” or simply “RPE”, which will accept risks through reinsurance or retrocession funded through the issuance of debt instruments linked to such same risks, the ILS. This will enable an important financial leverage if one considers that a local reinsurer needs a base capital of BRL 60 million, while the RPE would only need BRL 100,000.00. 
According to SUSEP’s proposal, in line with what happens in other jurisdictions, the RPE will raise third-parties’ funds to the amount necessary to fully cover the maximum loss of risks ceded in reinsurance or retrocession. On the other hand, the reinsurance/retrocession agreements must be absolutely clear in the sense that any reinsurance recovery shall be capped by the (i) the maximum possible loss and (ii) the RPE’s reserves, whichever is lower.
 
This ring-fenced structure assures that the bond will be fully collateralized. In this sense, as an example, possible extracontractual obligations of ceding companies or obligation in excess of policy limits will always be capped to the above-mentioned amounts.
 
Risks will only be transferred to the RPE after funds are raised and paid so that, at all times, the risks will be fully funded.
 
Such funds will remain invested in fixed-income securities throughout the term of the ILS and will only be used to pay for the ceded risks or to fulfill the obligations arising from the bonds. If at the maturity date of ILS, the loss ratio is smaller than expected, the investor shall receive back the original investments plus the agreed return.
 
The draft also provides that the debt instrument shall clearly state that (i) no payment will be made to the creditors in case the RPE’s reverses are lower than the maximum possible loss arising from the reinsurance or retrocession contract, (ii) the creditors will have no right over the assets of the ceding companies, (iii) the creditors will not be able to file for bankruptcy or liquidation of the RPE and (iv) the rights of the creditors will always be subordinated with regard to the contractual obligations arising from the risks ceded to the RPE.
 
ILS will have a maximum term of 3 years and the RPE will only be allowed to issue new bonds upon the expiration of all obligations arising from the previous one. Its remuneration will be linked to the ROI (Return on Investment) of the RPE’s reserves.
 
Each cession of risk to the RPE (and subsequent debt issuance) shall be previously approved by SUSEP. Moreover, in order to reinforce security and transparency, the RPE can only accept cessions related to insurance risks that are duly registered by the ceding company in the recently regulated Operations Registration System (Sistema de Registro de Operações). Depending on how the fund-raising will be made, ILS will be subject to the rules and examination of other authorities, in particular the Brazilian Securities and Exchange Commission (CVM).
 
In SUSEP’s opinion, ILS should be offered to highly qualified and experienced investors in view of the specific nature of the investment and the potential loss of the investments.
The RPE requirements
 
The creation and functioning of the RPE will depend on previous authorization by SUSEP, which will have priority over the licensing of other regulated entities.
 
The base capital of the RPE shall be of BRL 100,000.00 and its adjusted net worth shall be at least equal to the minimum required capital (CMR), which, in its turn, is the higher between the base capital and the risk capital.
 
The RPE needs to put in place governance, control, and risk management structures proportional to its exposure and compatible with the nature, scale, and complexity of its operations, including a Risk Management Policy, which shall be approved by its Executive Committee and, when existing, its Board of Directors.
 
The restrictions generally applicable to other regulated entities will also apply to the RPEs, provided, however, that the RPE (i) will be authorized to operate with derivatives in order to fully hedge for possible foreign currency exposures as long as there is a counterparty guarantee, (ii) will be able to act as a co-obligor under the ILS and (iii) will not be authorized to issue ILS to “affiliated companies”, as defined in the draft.
 
SUSEP’s decision to regulate ILS may be the first step towards other alternative risk transfer mechanisms, including financial reinsurance, reinsurance sidecars, captive reinsurers, risk retention groups or self-insured retentions, as well as new ways of funding (re)insurance activities, such as other forms of subordinated debts.
 
For qualified and experienced investors, considering the current low-interest rates scenario, ILS could be an attractive alternative, besides allowing the entrance of new players in the (re)insurance market.
 
By regulating the issuance of ILS by local players, SUSEP will allow the Brazilian market to benefit from this cutting-edge risk transfer and financing tool offered by the most modern international (re)insurance markets.
 
Mattos Filho team is available to provide any further clarification on the Resolution draft. In any event, we will follow this subject closely and inform you of any development.   

On March 6, 2020, CNSP published Resolution No. 379/2020, changing the existing Resolution No. 197/2008, to provide that the contracting of insurance in foreign currency can be made upon agreement between insurer and insured.
 
As of April 1, 2020, this possibility will no longer be limited to the list of insurance lines and products set forth by SUSEP Circular No. 392/2009, nor be subject to the procedures set forth therein.
 
The vote of SUSEP’s Board of Officers (Conselho Diretor), used as the basis for CNSP Resolution No. 379/2020, provides that this regulatory change seeks to reduce transactional costs for the purchase of insurance, pursuant to the guidelines established in Law No. 13,874/2019 (Economic Freedom Law) and the general understanding of the Superior Court of Justice (“STJ”) ruling in favor of the legitimacy of contracts entered into in foreign currency, as long as payments in Brazil to local residents and legal entities are carried out by converting the respective amount to the national currency.

Section 9 of Resolution No. 197/2008, which provided that “insured amounts, premiums, indemnifications and all other sums related to insurance operations must be reflected in lawful currency”, was not changed, although it was expressly mentioned in the explanatory notes of the abovementioned vote of SUSEP’s Board of Officers. The maintenance of Section 9’s original wording should not be considered a deterrent to the possibility of taking out insurance in Brazil in foreign currency, since this would be inconsistent with the newly enacted regulation and its respective purpose.

As to insurance indemnifications in policies issued in foreign currency, monetary restatement is not applicable, since its nature is to offset the loss of a given currency’s purchase power, which does not take place with strong foreign currencies.

In addition, on March 6, 2020, draft regulation was submitted by SUSEP for public consultation. It will revoke SUSEP Circular No. 392/2009, no longer addressing the purchase of insurance in foreign currency and update the operational procedures for taking out insurance abroad. The term for sending comments and suggested changes/amendments to this draft expires on April 6, 2020. The draft regulation is currently available for consultation on SUSEP’s website.

Per this draft, the purchase of insurance abroad is still subject to the general rule which requires that the coverage being sought is not available in Brazil. However, there are some novelties in the process of contracting such offshore coverage, to wit: (i) smaller number of declination of Brazilian insurers (that do business with the insurance line whose risk will be sought abroad) – from ten (10) to five (5); (ii) removal of the possibility of obtaining a statement from class entities in lieu of the consultation to Brazilian insurers; (iii) the consultation to Brazilian insurers must be conducted before the beginning of the offshore policy’s term of effectiveness and be restricted to local insurers which have issued policies covering the same risk (being sought abroad) within the last twelve (12) months before the beginning of the term of effectiveness of the envisaged offshore policy; and (iv) SUSEP must be notified within sixty (60) days, counted as from the beginning of the offshore policy’s term of effectiveness, pursuant to the draft letter attached as Exhibit I of the new regulation, when the offshore insurance covers risks run abroad, or Exhibit II of the draft, when the offshore insurance covers risks run in Brazil.
The draft regulation also removes the obligation of brokers and other intermediaries to submit documents required to purchase insurance abroad, as well as the related liability and penalties arising from any breach of said undertaking. The new rule no longer requires the sworn translation into Portuguese of the consultation made to offshore insurers for purposes of taking out coverage abroad of risks run in Brazil.
 
Supplementary Law No. 126/2007 already provided that the purchase of offshore insurance is restricted to exceptional scenarios and that legal entities taking out insurance abroad for risks run abroad must inform the purchase to SUSEP according to the applicable regulation, namely, CNSP Resolution No. 197/2008 and SUSEP Circular No. 392/2009.

We deem the changes brought by Resolution No. 379/2020 and proposed in the draft regulation under public consultation regarding the taking out of offshore insurance do simplify the procedure for purchasing insurance in foreign currency and insurance abroad, as being fully aligned with the recently observed regulatory flexibilization trend in Brazil.

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New legislation pending in Brazil’s Congress could lead to several changes in the country’s insurance sector, the London-based International Law Offi ce reported in late March.
The measure could mean changes relating to insurance contracts, payment of premiums, co-insurers and reinsurance.

Does Brazil need major changes in its insurance laws? If passed, what would be the consequences of the legislation on Brazil’s insurance industry and on consumers? Who will be the main winners and losers if the bill becomes law?

Fabio Ramos, partner at KLA-Koury Lopes Advogados: “Since 2004, when the Brazilian insurance law project was presented to the market, the national debate has been polarized between two groups: one defending that the current legal system doesn’t need changes and saying existing rules ensure the roper interpretation of insurance; and the other arguing that those current rules are out-of-date and unaligned with the new legal order. Therefore, a new insurance law would benefi t insureds and mitigate divergences with insurers.

We believe the biggest problem is the fragmentation of the insurance rules, requiring an exaggerated systematic interpretation and a dialogue among sources to understand insurance products. In this sense, conceptually speaking, the Brazilian market can benefi t from an insurance law that consolidates and presents in a clearer, transparent and linear way the general insurance rules, as long as those rules do not restrict insurers’creativity and impose an unequal burden upon them. If passed, insurers would need to review and sophisticate their processes, products and personnel in order to comply with clearer rules and to insureds’ needs and demands.

Consumers will feel more secure and will better understand insurance products and their rights. At fi rst, insureds will benefi t the most, but in the long-term, insurers and the market will benefi t as well, because, as the applicable rules become clearer and more accessible to society, insurers will need to sophisticate their processes, products and personnel. Although evolution brings fear and uncertainty, through evolution society improves its environment. Therefore, even if the new insurance law initially brings discomfort to the market, perhaps it is time to face the fear, embrace the new and try to evolve with the new times.”

Andre Alarcon and Marcia Cicarelli, partners at Demarest Advogados: “In our view, there is no need for a new law. The Civil Code already contains a chapter regulating
the insurance contract. Considering a fast-changing environment in view of new technologies, it is best that insurance is regulated by principles, rather than by such a strict and detailed legislation. Detailed legislation goes against the practice of most developed markets and limits the Brazilian insurance market’s ability to develop and to reach potential growth levels, which would contribute to the country’s economy as a whole. Also, reinsurance should not be further regulated. Complementary Law No. 126/07 already deals with reinsurance. If passed, the new law would require insurers to adapt their products and operational procedures. The law brings some positive changes for consumers, but it does not differentiate consumer insurance products from complex insurance products. Therefore, the changes might bring uncertainty for some lines of insurance. The law contains positive and negative provisions. Insurance players and consumers will gain with the articles that bring clarity for some points of the insurance operation, but unclear and unnecessary provisions may increase the exposure of insurers and reinsurers, bringing legal uncertainty and a more complex business scenario.”

Marcelo Mansur Haddad, partner, and Jaqueline Suryan, associate, in the insurance, reinsurance and pensions practice of Mattos Filho Advogados: “Brazil’s proposed insurance legislation (bill no. 3555/2004) aims to create a standalone insurance law to entirely replace the insurance provisions of the Brazilian Civil Code of 2002 governing insurance contracts. Insurance and reinsurance operations would not be affected by the proposed legislation (and would continue to be governed by existing rules). However, the bill is not uncontroversial. Fundamental assumptions of the new legislation are that all insurance relationships are consumer relationships and all insurance contracts are adhesion contracts. This results in several provisions granting unbalanced protection for all types of insureds, whether unsophisticated individuals or big corporations that have sophisticated risk departments. In addition, the bill mandates new claims adjustment provisions imposing deadlines, procedures and rules that, while not specifi cally benefi ting claims adjustments of mass insurance products, will likely convert claims adjustments of large risks into fairly litigious procedures. The bill contains some innovative reinsurance provisions, leading to some controversy over whether (or not) the insurance law should address that, or simply provide that it does not apply to reinsurance (we believe the latter to be the better approach). One of the most disputed reinsurance provisions imposes mandatory extra-contractual obligations on reinsurers.

Notwithstanding the above, the bill does bring some improvements. It better regulates coinsurance, it eliminates the need for a written insurance proposal to be issued by the prospective insurer (or its broker) and also provides more clarity for statutes of limitation on reinsurance matters. The bill is subject to a fast-track proceedings at the Brazilian National Congress. On April 12, the Chamber of Deputies approved it and sent it to the Senate. If the legislation is amended in the Senate, such changes will need to be assessed by the Chamber of Deputies. Once fi nally approved, it would need to be signed by the president, who has some limited veto powers.”