Gaya Lehn Schneider Paulino
Sergio Luiz Bernardelli Junior
Since the emergence of insurance in the family sphere through the expansion of maritime trade and followed by economic advances and technological development, Regulatory Law reflects the historical moment in which it is inserted, mainly because it represents an instrument of protection against future uncertainties.
As there is a relevant social and economic interest in identifying risky activities and building instruments to respond to harmful occurrences[1], insurance and its mutuality appear as “a solution that institutionalizes, in technical terms, the imperative of solidarity in a risk society”[2].
Therefore, insurance has become a necessary activity for the economy, acting as an instrument for forecasting misfortunes and having as its primary roles the generation of collective benefits and the preservation of wealth[3].
In Brazil, driven by an imperative of innovation, the Superintendence of Private Insurance – SUSEP, the body responsible for the control and inspection of the insurance, open private pension, capitalization and reinsurance markets, established in 2020 the Regulatory Sandbox – experimental regulatory environment – defined by Resolution No. 381/20 and Circular Letter No. 598/20, a model that has been used in several countries and markets[4].
Also in this disruptive line, signaling an imposition of culture and enhancement of the dialogue between consumer and insurance company, SUSEP issued Resolution No. 382/20[5] and Circular Letter No. 613/20[6], which directs communication between the parties to the digital and public platform, consumidor.gov.br.
Recently, it issued CNSP Resolution No. 407/21[7] to regulate damage insurance contracts to cover large risks.
It is undeniable that this resolution will offer greater freedom of negotiation to the parties, mainly by dispensing with the registration with SUSEP of the contractual conditions and technical notes[8].
In any case, the standard issued by the Regulator meets social and normative values recently inserted in our legal system. Corroborating this understanding is the Economic Freedom Law (Law No. 13.874/19), with premises of an exceptional and subsidiary intervention in economic activities, in line with the changes promoted by this Law in the Civil Code with the new wording of art. 421 and the inclusion of art. 421-A.
Indeed, SUSEP’s choice of “large risk insurance” resides in the fact that risk management and the need for specialized underwriting increase as the amounts involved increase, resulting in greater negotiation flexibility.
In this sense, according to the resolution, major risks are understood to be oil, named-perils and operational, global banking, aviation, maritime and nuclear, internal credit and export credit in case the insured is a legal entity.
In other lines, provided that they are contracted by legal entities, including policyholders, insurance that, at the time of contracting and renewal, present at least a maximum guarantee limit greater than BRL 15,000,000.00, or total assets, will be of great risk in excess of BRL 27,000,000.00 in the immediately preceding year or annual gross sales in excess of BRL 57,000,000.00 in the immediately preceding fiscal year.
For the future of “large risks”[9] insurance, contracts must observe, at a minimum, broad negotiating freedom, good faith, transparency and objectivity in information, equal treatment between the contracting parties, the encouragement of alternative solutions of controversies and subsidiary and exceptional state intervention in the formatting of products, so that broad negotiating freedom will prevail over specific regulatory requirements when they do not contravene Resolution No. 407/21[10].
Between mistakes and successes that time will certainly point out, the new regulation will contribute to boost the market, both with the offer of new products and with the creation of specialized consultancies to manage and map major risks.
It is expected that this favorable environment will attract new insurers, making the market more competitive, innovative, with more variety of products and coverage, and new policyholders who are eager to transfer their risks, through balanced and adequate contractual provisions for the effective protection of their interests.
Resolution No. 407/21 represents an important regulatory framework that places Brazil in a prominent role in the global scenario, reaffirming important pillars for the development of the sector and attracting foreign capital.
It is up to us from now on to assess the impacts of this and other resolutions to come, broadening the discussion to further boost insurance as a powerful instrument for consolidating an economically active and protected society.
[1] GRAVINA, Maurício Salomoni. Direito dos Seguros, São Paulo: Almedina, 2020.
[2] PASSOS, J. J. Calmon de. O risco na sociedade moderna e seus reflexos na teoria da responsabilidade civil e na natureza jurídica do contrato de seguro. Jus Navigandi, Doutrina. Available at: http://www1.jus.com.br/doutrina/texto.asp?id=2988. Accessed on 01/10/2021.
[3] JIMÉNEZ SÁNCHES, Guillermo. Derecho mercantil: Vol. 9: Los contratos de seguro. 15ª Edición, Marcial Pons Ediciones Jurídicas y Sociales, S/A, 2013, p. 497.
[4] Vide comunicado divulgado de forma conjunta pelo Ministério da Economia, SUSEP, CVM e BACEN. Available at http://susep.gov.br/setores-susep/noticias/noticias/implantacao-de-regime-de-sandbox-regulatorio-nos-mercados-financeiro-securitario-e-de-capitais-brasileiros. Accessed on 01/14/21.
[5] https://www.in.gov.br/web/dou/-/resolucao-n-382-de-4-de-marco-de-2020-247020888.
[6] https://www.in.gov.br/web/dou/-/circular-n-613-de-11-de-setembro-de-2020-278151812.
[7] https://www.in.gov.br/en/web/dou/-/resolucao-cnsp-n-407-de-29-de-marco-de-2021-311650550.
[8] CNSP Resolution No. 407/21: “Art. 7 The contractual conditions and actuarial technical notes relating to damage insurance contracts to cover large risks are not subject to the electronic registration of products with SUSEP prior to their commercialization, and must, under the terms of specific regulations, be kept under the custody of the insurance company.”
[9] CNSP Resolution No. 407/21: “Art. 2 Damage insurance contracts to cover large risks are understood as those with the following characteristics:
I – are included in the fields or groups of fields of oil risks, named and operational risks – RNO, global banking, aeronautics, maritime and nuclear, in addition to, in the event that the insured is a legal entity, domestic credit and export credit; or
II – other fields, provided that they are contracted by express agreement by legal entities, including borrowers, who present, at the time of contracting and renewal, at least one of the following characteristics: a) maximum guarantee limit (LMG) greater than BRL 15,000,000.00 (fifteen million reais); b) total assets exceeding BRL 27,000,000.00 (twenty-seven million reais) in the immediately preceding year; or c) annual gross sales exceeding BRL 57,000,000.00 (fifty-seven million reais) in the immediately preceding year.”
[10] CNSP Resolution No. 407/21: Art. 4.
Available at: https://politica.estadao.com.br/blogs/fausto-macedo/as-oportunidades-advindas-da-nova-regulamentacao-do-seguro-de-grandes-riscos/
Autor: Gaya Lehn Schneider Paulino • email: gaya@ernestoborges.com.br • Tel.: +55 67 3389 0123
