Insurance & Reinsurance 2020

Last Updated January 20, 2020

Brazil

Law and Practice

Authors



Campos Mello Advogados was founded more than 38 years ago and currently has over 100 professionals with relevant legal practice experience, in offices in Rio de Janeiro, São Paulo, New York, London and Milan, advising Brazilian and global companies in Brazil, Latin America, Asia, the USA, Europe and Oceania. With a global presence, through its co-operation with DLA, Campos Mello provides a full-service structure and professionals capable of identifying new opportunities and demands to clients, locally and abroad, as well as developing creative, innovative and secure legal solutions for each matter and client profile. The firm offers a comprehensive range of insurance services, including transactional, regulatory, commercial and coverage consultancy. Campos Mello represents both start-ups and established multinational life and non-life (re)insurers, intermediaries, financial institutions and other insurance industry participants. The firm understands the business of insurance as well as the legal issues that underpin the insurance sector.

Brazil follows a civil law system. The general rules relating to insurance law stem from the Brazilian Civil Code (Law No 10,402/2002), which includes provisions relating to underwriting and execution of insurance agreements, property and personal insurance. Such provisions are set out under Chapter XV of the Brazilian Civil Code. Contracts of maritime law are regulated by the Brazilian Commercial Code (Law No 556/1850).

Furthermore, Decree-Law 73 of 1966 is the main law by means of which the National Private Insurance System was created and also provides the general rules relating to insurance and reinsurance operations in Brazil. Insurance transactions are also subject to the provisions of Decree No 60,459/1967.

Complementary Law No 126/2007 is the main body of rules for reinsurance, retrocession, intermediation, coinsurance, contracting of insurance abroad and insurance transactions in foreign currency. Upon enactment of Complementary Law No 126/2007, the responsibility for regulating and overseeing reinsurance transactions was transferred from the former Brazilian reinsurance monopoly, the Instituto de Resseguros do Brasil (IRB), to the Brazilian Private Insurance Superintendence (Superintendência de Seguros Privados, or SUSEP).

Insurance and reinsurance are also subject to the regulations issued by the National Council of Private Insurance (Conselho Nacional de Seguros Privados, or CNSP) and by SUSEP.

Specific provisions issued by other authorities also apply to insurers and reinsurers, such as the rules for the application of equity funds accrual reserves, which are regulated by the Brazilian Central Bank (Banco Central do Brasil, or BACEN). The Brazilian Securities Exchange Commission (Comissão de Valores Mobiliários, or CVM) also closely supervises the sorts of investments made by insurance companies if said insurance company floats its shares on the Brazilian capital market.

Finally, pursuant to the Brazilian Civil Procedural Code (Law No 13,105/2015), in some circumstances precedents from the Supreme and Superior Courts can be binding. However, as a general rule, court precedents are not binding, but considered an important interpretation guideline for the law and argument of authority.

As with most of the insurance markets in the world, insurance and reinsurance activities in Brazil are regulated.

SUSEP and CNSP are the main regulatory entities responsible for the oversight of the insurance and reinsurance markets in Brazil.

CNSP is a government entity pertaining to the Ministry of Finance and is tasked with preparing the core rules for the insurance and reinsurance markets. The chairman of CNSP is the Minister of Finance or a representative appointed by him or her. The Superintendent of SUSEP is also a member of CNSP and will chair the council in the absence of the Minister of Finance or his or her representative. Representatives from the Ministry of Justice, the Ministry of Social Security, the Brazilian Central Bank and the Brazilian Securities and Exchange Commission also have a seat at CNSP.

On the other hand, SUSEP is the Brazilian regulatory agency subordinated to the Ministry of Finance responsible for implementing the resolutions enacted by CNSP, and for supervising insurance, reinsurance, private pension and capitalisation activities in Brazil. SUSEP is managed by a board comprised of a Superintendent, appointed by the Minister of Finance, and four officers.

Both SUSEP and CNSP also regulate open private pension entities and capitalisation companies, and oversee products offered by supervised entities.

Private pension funds are also supervised and regulated by the National Council of Complementary Pensions (Conselho Nacional de Previdência Complementar) and the National Superintendence of Complementary Pensions (Superintendência Nacional de Previdência Complementar).

Finally, the Supplementary Health Council (Conselho de Saúde Suplementar) and the National Agency of Supplementary Health (Agência Nacional de Saúde Suplementar) supervise healthcare operators and healthcare transactions.

Brazil is a non-admitted country, which means that, as a general rule, underwriting insurance and reinsurance business in the country is private to entities registered before SUSEP so they can offer and sell insurance locally. However, local players can be fully owned by foreign entities and/or investors.

The underwriting of insurance and reinsurance business can be carried out, pursuant to Brazilian law, by the following types of companies: (i) insurance companies, (ii) local reinsurers, (iii) admitted reinsurers and (iv) occasional reinsurers, as further detailed below.

Incorporation of Insurance Companies and Local Reinsurers

As insurance is a regulated market, insurance companies and local reinsurance companies must comply with certain requirements to conduct business in Brazil. Pursuant to Decree-Law 73/1966 and CNSP Resolution No 330/2015, insurance and reinsurance companies must be incorporated in Brazil as a corporation (sociedade por ações; also referred to as S.A.). Insurance companies can also be incorporated as a co-operative (cooperativa). Prior to incorporating the insurance or local reinsurance company in Brazil, the controlling shareholders must obtain SUSEP’s authorisation.

The authorisation process is divided in a twofold procedure.

The first step consists of obtaining SUSEP's prior approval, which must be requested by the future controller of the (re)insurance company to the head of SUSEP. This first step is intended to verify whether:

  • the future controllers comply with all applicable requirements to hold control of a supervised company; and
  • the business plan is feasible.

Upon SUSEP’s prior approval, the company can be incorporated. The corporate document reflecting the incorporation is subject to SUSEP’s ratification. Ratification is subject to the evidence that the minimum capital and solvency requirements have been met.

Local insurers and reinsurers are normally incorporated in Brazil as subsidiaries of foreign companies, as Brazil is not a branch-friendly jurisdiction.

Controlling Shareholders

SUSEP strictly supervises the exercise of controlling shareholding in supervised entities. Direct effective control of insurance companies and local reinsurance companies can be held solely by (i) individuals, (ii) entities supervised by SUSEP, (iii) a holding company with sole corporate purpose to hold shares in companies authorised to operate by SUSEP, or (iv) private investment funds with the sole purpose to invest in entities authorised by SUSEP. There are no restrictions for foreign ownership.

Change of Control

Direct or indirect change in the effective control or a transfer of shares that affects the management decisions related to the supervised entity is subject to the prior consent of SUSEP.

Minimum Capital and Solvency

Both insurers and local reinsurers are subject to minimum capital rules to obtain their registration to operate and are also required to maintain adequate solvency to carry out their activities.

The minimum required capital of an insurance company shall be equal to or greater than the base capital or the risk capital. The base capital is composed of a fixed quota of BRL1.2 million and a variable quota, which is determined according to the region where the company intends to operate. The base capital for an insurer to operate in the entire country is BRL15 million. The risk capital is composed of a formula that comprises operational risk, underwriting risk, credit risk and market risk.

Reinsurance companies are subject to similar rules. However, the base capital value is BRL60 million.

Foreign Reinsurers

As a general rule under Complementary Law No 126/2007, foreign reinsurers can underwrite risks from Brazilian ceding companies when registered in Brazil as either admitted or occasional reinsurers.

  • Admitted reinsurers are foreign insurance or reinsurance companies that (i) have a representative office incorporated in Brazil; (ii) maintain mandatory deposits in Brazil of USD5 million to write non-life business or USD1 million to write exclusively life business; and (iii) comply with certain expertise, capital and solvency requirements to register with SUSEP to underwrite reinsurance and retrocession business in Brazil from abroad.
  • Occasional reinsurers are foreign insurance or reinsurance companies that comply with certain expertise, capital and solvency requirements to register with SUSEP to underwrite reinsurance and retrocession business in Brazil from abroad. Such reinsurers are not required to have a representative office in Brazil and cannot be headquartered in tax haven jurisdictions.

Mandatory Retention and Right of First Refusal

Pursuant to Resolution CNSP No 168/2007, Brazilian insurers and local reinsurers can transfer in reinsurance or retrocession, respectively, up to 50% of the premium issued in relation to risks they have underwritten in a given year, considering the total book of business. Said limitation does not apply to domestic and export credit insurance, surety bonds and agribusiness insurance. Brazilian insurers must also observe the right of first refusal of local reinsurers of 40% of a risk ceded in facultative or automatic reinsurance.

Insurance and reinsurance premiums are subject to federal tax on financial transactions (IOF). The IOF rates on premiums range from 0% (ie, reinsurance premiums) to 7.38% (ie, property insurance premiums), depending on the type of coverage.

There is some controversy involving taxation of premiums as some municipalities have tried to charge Service Tax (ISS) in addition to IOF under the argument that there is a service being provided, particularly over reinsurance premiums in cross-border transactions. This represents a double taxation issue to insurance companies operating in Brazil even though it is defined under the constitutional framework that insurance premiums are subject to IOF that is charged by the federal tax authorities.

As mentioned above, Brazil is a non-admitted country. Therefore, as a general rule, underwriting insurance and reinsurance business in the country is private to entities registered before SUSEP to underwrite Brazilian business.

Purchase of Insurance Abroad

Even though Brazilian residents are generally prevented from purchasing insurance coverage abroad, Complementary Law No 126/2007 sets out certain exceptions:

  • risks that have no coverage offered in the country, provided that the purchase of such coverage is not in breach of Brazilian laws;
  • risks that are based abroad and the insured is an individual resident in Brazil, provided that the term of the policy is limited to the period in which the policyholder is abroad;
  • insurance that is subject to international treaties ratified by Congress; and
  • insurance policies purchased abroad before the enactment of Complementary Law No 126/2007.

Such exceptions are further regulated by Resolution CNSP No 197/2008 and Circular SUSEP No 392/2009.

Foreign Insurers and Reinsurers

As mentioned above, foreign insurers or reinsurers can do business in Brazil by registering as admitted or occasional reinsurers, provided that certain requirements are met.

There are exceptions set out in Resolution CNSP No 241/2011, which allows the transfer of risks to foreign reinsurers that are not registered with SUSEP in exceptional circumstances when it is proven that there is no capacity for local, admitted and occasional reinsurers to underwrite a risk. The unregistered foreign reinsurer must meet certain requirements to underwrite such Brazilian risks and the lack of capacity must be proven by consultation of the reinsurers registered with SUSEP. 

There are no regulatory restrictions preventing fronting arrangements. However, insurance companies and local reinsurers are subject to minimum retention rules, as further explored above. Insurers must also observe the rules on right of first refusal to local reinsurers.

Insurers, local reinsurers and intermediaries continue to invest in acquisitions as a way of consolidation. Insurers are still looking to broaden their client base, by entering into distribution arrangements with large retailers in the country or by acquisition of existing portfolios from other players, including insurers owned by banks divesting of large risks. Local reinsurers looking to increase their balance sheet and capacity have announced a joint venture.

Given the positive outlook for the Brazilian economy, the authors believe that the insurance industry will continue to be active on the mergers and acquisitions front.

Insurance products can be distributed in Brazil directly by the insurer to insureds, by insurance brokers and insurance agents or representatives. Reinsurance can be distributed directly to reinsurers by ceding companies or by authorised reinsurance brokers.

Prior to Provisional Measure No 905/2019, the insurer should have paid the equivalent of the insurance brokerage commission to the local National School of Insurance (Fundação Escola Nacional de Seguros, or FUNENSEG). However, due to the enactment of the Provisional Measure, such obligation is no longer in place.

Insurance Representative

An insurer may or may not use an insurance agent, locally known as an insurance representative. The insurance representative is a legal entity that acts on behalf and under the responsibility of an insurance company for the specific purpose of offering insurance in its premises. Retailers, car dealers and travel agencies are typical insurance agents.

Following issues with sales through insurance representatives, SUSEP further regulated the activity of insurance agents under Resolution CNSP No 297/2013.

Group Policies

In group policies, sponsors play an important role. The sponsor is a legal entity with a previous legal relationship with a group of individuals, such as an employer with its employees, or a club with associated members. Brazilian regulation authorises a sponsor to purchase an insurance policy on behalf of the group. The individuals may adhere to the group policies upon executing certain required documents. The placement of group policies may be, and usually is, intermediated by a retail broker.

Insurance Brokers

In indirect sale, retail brokers are the intermediary in the contractual relationship between the insurance company and the insured. Insurance brokers are intermediaries authorised to broker insurance and were licensed by SUSEP until the enactment of Provisional Measure No 905/2019.

According to the Provisional Measure, insurance brokers have been released from supervision by SUSEP and are now subject to registration by the National Council of Insurance Brokers (IBRACOR).

Even though insurers are deemed liable for the acts and omissions of their appointed agents, including vis-à-vis SUSEP, brokers are liable for any failure in their services.

Reinsurance Brokers

Reinsurance agreements can be freely negotiated between ceding companies and reinsurers. However, reinsurance brokers are the only intermediaries authorised to intermediate reinsurance business for Brazilian ceding companies.

Reinsurance brokers are legal entities incorporated in Brazil and authorised by SUSEP to operate. Given that reinsurance brokers can be held liable for any acts and omissions that cause damage to ceding companies and/or reinsurers, the regulation requires reinsurance brokers to contract and maintain appropriate errors and omissions (E&O) insurance coverage during the period in which their obligations as brokers remain in place.

Under Brazilian law, parties to any agreement are under the obligation to act in good faith prior to and after execution, including during the performance of their obligations. In insurance, the duty of good faith is aggravated based on the understanding that the acceptance of the risk and its pricing depends on the information unilaterally provided by the insured in the insurance proposal. Therefore, it is understood that the insurance contract is based on utmost good faith.

As the insurer relies on the information provided by the proposed insurer to underwrite the risk and determine the amount of the premium, the Brazilian Civil Code establishes certain rules regarding misrepresentation by the insured and on the aggravation of risk during the terms of the policy.

Pursuant to Brazilian law, the insurer has a right to terminate the insurance contract unilaterally or to charge additional premium after a claim is paid. However, the insurer is required to prove that the misrepresentation was due to the bad faith of the insured. This position is supported by Brazilian case law.

The Brazilian Civil Codes also establishes that the insured may lose the right to be indemnified if there is an intentional aggravation of the risk or if, despite being aware of such aggravation, there is an intentional omission of such circumstance that is not disclosed to the insurer.

Upon becoming aware of circumstances that aggravate the risk covered by an insurance policy, the insured must notify the insurer in a timely fashion. Upon receipt of such notification, the insurer has 15 days to decide whether to terminate the policy and, consequently, to charge additional premium to stay on risk. Termination will be effective 30 days from the date the insured is notified.

Pursuant to Brazilian laws and regulations, brokers are essentially independent intermediaries. From a legal perspective, brokers are not considered representatives or attorneys-in-fact of the insurance company nor of the insured and, therefore, their acts or omissions will not bind the insurance company nor the insured, save in exceptional cases in relation to the latter (eg, execution of insurance proposals on behalf of the future insured).

Pursuant to the Brazilian Civil Code, the broker has the duty of diligence towards the client and must ensure that the client is kept informed of the ongoing aspects of the business.

Therefore, an insurance broker that breaches the duty of care and good faith by offering insurance products that are not in compliance with the requests and do not follow the instructions given by the client or act in their own benefit (eg, to receive a better commission) are subject to the penalties set forth by Brazilian regulations, and liable for the losses and damages caused to their clients.

Pursuant to the law, the insured must describe the essential elements of the risks for which coverage is needed by means of a written insurance proposal.

From a technical perspective, an insurance proposal is not deemed as a proposal as generally understood under Brazilian contracts law, as it does not include all the requisite elements of the insurance contract, such as the premium to be paid by the insured.

Upon receipt of such insurance proposal, the insurer has 15 days to decline the risk. In the absence of such a refusal, the risks described in the insurance proposal will be considered covered and the insurer will have 15 days to issue the insurance policy.

Therefore, insurance contracts are generally not considered as formal agreements, given that they can be formed even if the actual policy has not been issued.

Although the issuance of a document is not necessary to consider the insurance agreement duly valid, effective and binding, Brazilian regulation requires the issuance of an insurance policy or, in the case of group policies, an insurance certificate. Failure of the insurer to do so may subject it to administrative penalties, whilst remaining obliged to cover the risk.

The issuance of an insurance policy and/or an insurance certificate is therefore a regulatory requirement and not a validity or effectiveness requirement.

Furthermore, insurance contracts are strictly regulated by the Brazilian Civil Code and by SUSEP.

Pursuant to Article 760 of the Brazilian Civil Code, all policies must contain (i) the name of the policyholder or the insured/beneficiary, (ii) the underlying insured risk, (iii) the initial and final term, (iv) the insured amount, and (v) the premium due.

Additionally, SUSEP edits standard wording by lines of business. Insurers may choose to use such standard wording or to draft their own policy, provided that the contract is filed and approved by SUSEP for commercialisation.

No information is available.

In the Brazilian legal system, reinsurance agreements are akin to commercial agreements. Therefore, reinsurance agreements are subject to the principle of pacta sunt servanda (contractual freedom) and Articles 421 and 425 of the Brazilian Civil Code, whereby parties can freely negotiate the terms of the agreement, unless otherwise expressly stated in any specific reinsurance laws and regulation.

Contrary to strict regulation imposed on insurance contracts and except for some specific provisions of Complementary Law No 126/07, Brazilian legislators decided not to regulate reinsurance contracts in detail.

However, reinsurance agreements must include certain mandatory provisions set out under Resolution CNSP No 168/2007, such as:

  • in the case of the insolvency (extrajudicial liquidation) of the cedant, the liabilities of the reinsurer survive in relation to the liquidated estate, subject to the provisions of the reinsurance agreement;
  • in the case that there is an intermediary reinsurance broker, a clause establishing its powers;
  • in the case where the risk covered is located in Brazil, a clause establishing Brazilian law and jurisdiction as the applicable ones, except if arbitration is chosen as the method of dispute resolution;
  • the commencement and end of the rights and obligations of each party, including how liabilities are affected after termination of the agreement;
  • the criteria for termination of the agreement;
  • the risks that are covered and the risks that are excluded; and
  • the period of coverage, identifying the commencement of the liability of the reinsurer and the precise moment in which losses become covered by the agreement.

Reinsurance is defined under Complementary Law No 126/2007 as a transaction where an insurer transfers risks to a reinsurer and retrocession as a transaction where a reinsurer transfers risks to other reinsurers or to Brazilian local insurers. It is, therefore, understood that the provisions of the Brazilian Civil Code on insurance do not apply to reinsurance.

In that sense, reinsurance contacts would be subject to Brazilian contracts law and, to the extent it has an insurance nature (although not being insurance), to the general principles of insurance, such as the indemnity and the utmost good faith principles.

In this scenario, it is legitimate to expect that international practices and especially customs will be recognised under Brazilian law as one of the sources of law applicable to reinsurance contracts.

Reinsurance agreements are not deemed as formal agreements as they are not required to be in writing to be deemed valid, effective and binding among their respective parties. However, according to the rules set out by SUSEP, reinsurance contracts must be formalised within 270 days from the date of inception of coverage.

Failure to do so will mean that the relevant risk will not be considered as transferred for all regulatory purposes, in addition to the possibility of the relevant parties being subject to penalties imposed by the local regulator.

Insurance-linked securities (ILS) are still not regulated in Brazil. Therefore, Brazilian insurers and local reinsurers are not yet allowed to issue them. To date, only one transaction of this nature has been publicly disclosed in Brazil, which involves risks that were originally insured in Brazil and were subsequently reinsured abroad and securitised via an international vehicle.

No information has been provided in this jurisdiction.

Insurance contracts follow the general rules for interpretation of private contracts pursuant to the Brazilian Civil Code.

Therefore, any contract between private parties should be interpreted according to the genuine intention of the parties when entering into the transaction; the uses and customs or traditions; and, especially for insurance contracts, the principle of utmost good faith of the contracting parties.

Contracts that have been adhered to by consumers (ie, in which the terms and conditions have not been freely negotiated between the parties) are also subject to more lenient interpretation in favour of the consumer in the event that certain provisions are deemed ambiguous or contradictory.

Furthermore, extraneous evidence can also be used for the construction and interpretation of insurance contracts. Pursuant to the Brazilian Civil Code, the insurance proposal and pre-contractual documentation can be used as a source for contract interpretation.

No information has been provided in this jurisdiction.

Under the Brazilian Civil Code, condition is defined as the clause whereby the parties subject the effects of a contract to the occurrence of a future and uncertain event.

Conditions precedent and warranties are not expressly recognised under Brazilian law. Ultimately, it is necessary to rely on the contract wording to understand the obligations of the parties and the consequences of any breach thereof.

The breach of these types of provision shall be analysed on a case-by-case basis and in view of existing court decisions on the matter or related matters.

Based on Brazilian case law on insurance, there is a possibility that the breach will only give a reinsurer grounds to repudiate liability provided that the reinsurance company proves that such a breach caused actual damage to the reinsurance company.

Remedies for particular obligations must be specified in the reinsurance contract.

There are no special procedures or venues for insurance or reinsurance disputes in Brazil.

Disputes regarding insurance coverage are, as a rule, addressed in ordinary lawsuits filed with local state civil courts, depending on the territoriality rule applicable to the case.

For insurance contracts that are considered a consumer relationship, the consumer can litigate at their own venue. Otherwise, a claim can be filed where the insurance company is based.

Insurance products offered in Brazil by local insurers will be invariably subject to Brazilian laws. Reinsurance agreements related to risks located in Brazil must include a clause determining the submission of any disputes to Brazilian law and jurisdiction, except if there is an arbitration clause.

High-profile and complex claims disputes are often taken to arbitration, due to arbitration’s inherent characteristics, such as confidentiality and speciality of the arbitrators. The parties to an insurance contract can submit controversies to arbitration. In consumer relationships, an arbitration provision shall only be valid and enforceable if there is an unequivocal consent of the insured.

Currently, most arbitration awards are recognised by Brazilian courts. However, there may still be specific cases where the parties have adopted defective arbitration clauses, or the arbitration tribunal has been irregularly constituted. In such cases, the arbitration awards may be challenged in court, but these decisions represent a minority of cases.

As a rule, the limitation period for starting proceedings in respect of an insurance claim is one year. There is a high-level discussion among Brazilian scholars and the judiciary regarding the triggering of the limitation period. One line of thought counts the period from the occurrence of the damage, while another counts it from the insurer’s denial of coverage.

Although the final decision is not binding if the parties are not in agreement with the outcome, mediation is also considered an acceptable alternative dispute resolution mechanism used in highly complex insurance and reinsurance disputes.

As a general rule, contracts executed between Brazilian parties and contracts executed or performed in Brazil will attract the Brazilian jurisdiction (specific court jurisdiction is to be defined by the rules in Articles 44 and forward of the Brazilian Civil Procedure Code).

Pursuant to Article 42 of the Brazilian Civil Procedure Code, civil disputes are to be solved by the competent judge with jurisdiction over the matter (as a rule, the Brazilian jurisdiction), unless the parties have agreed, or agree to submit any disputes to arbitration, as set forth in Law No 9,037 of 23 September 1996.

Lastly, according to Article 25 of the Brazilian Civil Procedure Code, the Brazilian judiciary will uphold the choice of exclusive foreign jurisdiction by the parties to solve their disputes.

In a brief summary, the Brazilian legal system is divided into federal or state-specific courts for civil, criminal, tax, labour and military matters.

Insurance contracts are usually dealt with by state civil courts (federal jurisdiction will depend on the parties involved in the dispute).

Civil litigation in Brazil is primarily held by three different levels of courts: (i) local courts, (ii) Appellate Courts and (iii) High Courts, composed of the Superior Court of Justice (STJ), which can review the decisions from an Appellate Court on non-constitutional matters, and the Supreme Federal Court (STF), which only deals with constitutional matters.

Evidence is exclusively produced in the local courts, during hearings and through specific court orders.

Appellate Courts can re-evaluate the evidence presented by the parties as well as the application of the law by the local courts.

Lastly, STJ and STF do not re-evaluate the facts of the case, but they can give a new and correct interpretation of the law and the Constitution.

Once the judicial decision is deemed final (without possibility of appeals), it can be enforced at the competent local court.

According to the latest report from the Brazilian National Council of Justice (CNJ), a commercial lawsuit in Brazil takes an average of seven and a half years in court, from filing to final enforcement of the award.

Pursuant to Article 961 of the Brazilian Civil Procedure Code, the Brazilian legal system requires ratification of foreign judgments (and arbitral awards) before their enforcement in Brazilian courts.

STJ promotes the ratification of a foreign judgment, whilst the enforcement is executed in local jurisdiction according to the Brazilian Civil Procedure Code rules.

The ratification of a foreign judgment must proceed in accordance with Articles 216-A to 216-N of STJ’s internal rules. In its analysis, STJ will evaluate whether:

  • the judgment was issued by a competent authority;
  • the parties were regularly served;
  • if the judgment is final and enforceable at its court of origin; and
  • if the judgment does not violate Brazilian’s national sovereignty, human dignity, or if the judgment violates the national public policy.

STJ does not re-evaluate the merits of the decision.

As mentioned in 9.2 Disputes Over Jurisdiction and Choice of Law, courts will uphold arbitration clauses agreed by the parties in commercial contracts, in accordance with Law No 9,037 of 23 September 1996.

Brazil is part of the New York Convention.

Please refer to 9.4 The Enforcement of Judgments as to the ratification and enforcement of foreign awards in Brazil.

Pursuant to Law No 13,140 of 26 June 2015, alternative dispute resolution (ADR) methods may be used for dealing with issues arising out of insurance contracts, once all parties agree to commit to the chosen method.

Considering the financial costs attached to ADR, as in the case of arbitration, insurers and reinsurers tend to proceed with ADR methods only in high-profile and high-complexity cases.

Pursuant to Brazilian regulation, insurers cannot impose a deadline for the insured to notify a claim. The Brazilian Civil Code sets out that the insured must notify the insured of a claim upon becoming aware of the loss. The insurer is also required to take steps to mitigate a loss.

According to Circular SUSEP No 256/2004, setting out the general terms and conditions for casualty insurance, the insurer has 30 days to settle a claim upon receipt of all necessary documents to handle the claim. This term is suspended when the insured requests additional information or documentation from the insured.

Pursuant to the Brazilian Civil Code, if the insurer is late in making a payment of a claim, the insurer becomes liable to pay the claim with monetary adjustment and interest.

The insurer is also subject to the provisions of Resolution CNSP No 243/2011 for breach of contract.

Following the trend of other countries, where insurers can offer insurance products with tailored coverage periods, on 26 August 2019 SUSEP issued Circular No 592/2019 regulating insurance products with a “reduced term” and “intermittent period” of coverage.

Based on this new regulation, Brazilian insurers can provide coverage for specific periods of time (months, days, hours, minutes), partial periods, with specific criteria for terminating and restarting coverage (as an “on-off” option), specific locations (as commuting paths or limited geographical areas) and other agreed limits.

The rules brought by Circular No 592/2019 open the Brazilian market for adaptation of insurance plans and products with the concept of usage-based insurance (a product with flexible coverage and prices based on usage), as commonly applied in per-pay-ride motor insurance and property insurance available in other countries.

The possibility of offering customers insurance products that are tailored to their needs should broaden the consumer base for the industry, engaging individuals or companies with specific needs that are not currently fulfilled by the products available on the market.

The need for fast and specific analysis, as well as a cost-effective operation, will also stimulate the use of new technologies by the insurance industry, with further use of big data (the structured crossing and analysis of data from different sources) and artificial intelligence to better assess the needs of clients, evaluate the risks and price products.

SUSEP has demonstrated interest in providing a regulatory environment to encourage the development and establishment of new insurance products and to create a sandbox for innovation in Brazil. Again, the Brazilian regulator is following the trends of other countries and setting the tone and the parameters in which Brazilian insurers can innovate.

To that extent, on 30 September 2019, SUSEP made available for public consultation draft regulations with the intention to develop and create a regulatory framework as part of its innovation project for the Brazilian insurance market (“Innovation Project”).

A draft resolution under Public Consultation No 09/2019 intends to regulate the creation of innovative products as well as provide for minimum requirements for companies to participate in the Innovation Project. Innovative products are defined by the proposed regulation as those that promote the “development of products and/or services in the insurance market to be offered or developed through use of new technologies or existing technologies applied in a diverse way”.

A draft circular under Public Consultation SUSEP No 10/2019 sets out financial guidelines, rules and criteria for the operation of products, technical provisions and asset investments, as well as requirements for authorisation and operation of companies that will be involved in the Innovation Project.

Lastly, Public Consultation SUSEP No 11/2019 presents a bidding proposal draft, which shall be issued by SUSEP, to select companies and products to participate in the Innovation Project.

All drafts presented for public consultation aim to establish a regulatory sandbox framework for the development of new products and technologies for the Brazilian insurance market as part of a Public Agenda towards innovation (fomented and lobbied by the private sector) in line with policies in other economies of flexible regulatory framework and technological development.

Such framework aims to provide a controlled environment where private companies (regularly submitted to a stricter regulatory overview) can test in small scale and in real life new business models and products while being subject to stronger regulatory rules.

Despite being applicable to companies of all sizes, this framework is commonly associated with start-up companies, as it allows and promotes the set-up, trial and decommission of new business models in less time and in a more simplified way than would regularly be required by regulation in place.

No information available.

No information available.

The Brazilian President enacted Provisional Measure No 905/2019 as a positive response to a longstanding request of insurance brokers for self-regulation and a more flexible regulatory environment. According to the Provisional Measure, insurance brokers have been released from supervision by SUSEP and are now subject to registration by IBRACOR. Given the number of licensed insurance brokers, SUSEP has issued a letter confirming that this represents a better arrangement for the market, giving SUSEP more resources to become more efficient as a regulator to the other supervised entities.

SUSEP is considering segmenting the Brazilian insurance market into groups (S1, S2, S3 and S4) based on financial guidelines and risk profile, for the purpose of prudential regulation, as set out in the draft regulation under Public Consultation No 14/2019. The proposal aims at stimulating competition, expanding product offerings and increasing market efficiency. As mentioned above, SUSEP is looking at ways to become an even more efficient regulator for supervised entities to operate in.

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Trends and Developments


Authors



Campos Mello Advogados was founded more than 38 years ago and currently has over 100 professionals with relevant legal practice experience, in offices in Rio de Janeiro, São Paulo, New York, London and Milan, advising Brazilian and global companies in Brazil, Latin America, Asia, the USA, Europe and Oceania. With a global presence, through its co-operation with DLA, Campos Mello provides a full-service structure and professionals capable of identifying new opportunities and demands to clients, locally and abroad, as well as developing creative, innovative and secure legal solutions for each matter and client profile. The firm offers a comprehensive range of insurance services, including transactional, regulatory, commercial and coverage consultancy. Campos Mello represents both start-ups and established multinational life and non-life (re)insurers, intermediaries, financial institutions and other insurance industry participants. The firm understands the business of insurance as well as the legal issues that underpin the insurance sector.

Insurance Market Overview

When the authors first wrote this chapter in January 2020, Brazil was starting to show signs of recovery following the election of a new government with a liberal approach to the economy after facing years of challenging economic times. The Central Bank had approved lower interest rates, while the Congress approved a public pension reform and passed laws aiming at decreasing bureaucracy and state intervention.

However, much has changed since then. In March, as in many countries, Brazil declared a state of emergency due to the COVID-19 pandemic and many laws and regulations have been enacted since then, especially on public healthcare, employment, infrastructure and economic areas. Following the guidance of various domestic and international public health bodies, Brazilians were following social distancing and, in some cases, isolation, while states and cities determined quarantining and closure of businesses not deemed essential.

Therefore, it was important to update this chapter to bring to light not only the regulatory developments but also the authors' thoughts on how the insurance and reinsurance sector might be affected in the coming months. The sector had benefited in the past years from the increased perception of need for coverage following significant events relating to corruption investigations under the Car Wash operation, environmental disasters and new laws and regulations, including a larger consumer base and new products on offer.

The insurance and reinsurance market will now face changes in coverage offered (both to ensure risks are underwritten effectively while offering solutions for the needs of their clients) and claims handling, ensuring that COVID-19 consequences are handled in even more efficient ways. As a global industry, insurers will have the benefit of learning and innovating on a global scale, while regulators will have the challenge of ensuring that solvency and capital adequacy of supervised entities remain stable.

Even though the outlook for the sector for the year ahead might now be uncertain, as it is for the global economy, the government has attempted to tackle the current crisis with economic packages to ensure some level of protection to the economy. It is yet to be seen how the government will implement the initial plan of the announced concession of roads, airports, ports and railways to the private sector, now that the main focus will be on ensuring the national healthcare system, both public and private, is prepared to cope with the unprecedented demand and how this will affect the need for insurance.

The myriad of legal issues surrounding the COVID-19 pandemic are wide-ranging but are still in their early days in Brazil. Therefore, the authors believe there will be more to be seen in several aspects, such as further developments of laws and regulations, especially on how they will be interpreted by courts. As long as this firm is responsible for this chapter, the authors will aim to update it regularly with how they see the trends and developments reshaping the insurance industry in Brazil in line with the global response of the world vis-à-vis the many challenges we are facing as a result of the pandemic.

In the briefing below, the recent developments in the local market are summarised, including the main impacts of COVID-19 on certain types of insurance offered in Brazil, changes to the legal and regulatory landscape, and a proposed regulatory framework that should become effective in the coming years.

COVID-19

As mentioned above, the legal issues relating to the COVID-19 pandemic are in constant development and are still in the early days. Insurers are likely to be reviewing their portfolio to identify potential risks they are exposed to considering the current global scenario, making required changes to the products being offered and aligning their claims handling process to further ensure a consistent approach.

In general terms, the authors believe that claims will have to be reviewed on a case-by-case basis, with careful consideration to the policy wording (coverage, excluded risks, loss of rights) and the timeline in which the events occurred (ie, declaration of pandemic, lockdowns determined by governments), among other information.

Many lines of business have a potential to be affected as the COVID-19 situation continues to evolve and more is unveiled about the coronavirus and the implications to the many ways in which our lives are rapidly changing and adapting to the new circumstances.

A brief summary is set out below of the main lines of business that the authors believe are more likely to be immediately affected by the COVID-19 pandemic.

Loss of profits insurance

Currently regulated by Circular SUSEP No 560, of 7 November 2017, loss of profits insurance provides coverage to the insured due to losses to liquid profit, gross profit, gross income or fixed expenses, due to the interruption of the insured’s operations or decrease in its professional capacity due to material damages to their site or property. 

Events insurance

Regulated under the “Sundry Risks” line of business, pursuant to Circular SUSEP No 417, of 12 January 2011, insurance coverage for events is a combination of different insurance coverages, such as public liability, operational and property risks, and loss of profits.

Coverage for cancellation of events may be the most important and most affected coverage in the current scenario, considering that a great number of events in Brazil have been cancelled or postponed due to measures imposed by public authorities (such as closure of commercial establishments, businesses and companies) and changes in social behaviour (such as social distancing) as a result of the coronavirus epidemic.

Considering that coverage for the cancellation of events is a usual coverage, there is likely to be an increase in the number of notifications submitted by insureds seeking coverage.

Multiple-peril insurance

Regulated by Circular SUSEP No 321, of 21 March 2016, the policies issued under the multiple-peril line of business are intended to guarantee the indemnification of the insured – as a result of material damage of its property, such as broken glass, fires or flooding. However, it is yet to be seen how the novel coronavirus could be deemed to have caused material damage to property and, if not, the authors believe that it would not be deemed as a covered event.

Further to the above, multiple-peril insurance policies allow the insured to include additional coverage as a result of losses arising from public liability vis-à-vis third parties, as well as illness or death of employees.

Usually, epidemics are deemed an excluded risk in most of the products on the market, although it does not have an express provision for pandemics.

Travel insurance

Primarily aimed at consumers, travel insurance is regulated by Resolução CNSP No 315, of 26 September 2014, which makes no reference to coverage exclusions for a pandemic.

On the other hand, it is important to mention that the coverage of Medical, Hospital or Dental Expenses (DMHO) in domestic or international travels determines the coverage of “sudden and acute illness that occurred during the travel”. Such coverage is mandatory in all travel insurance offered by the insurance companies in Brazil.

Another coverage that may have an impact on this type of insurance is the cancellation of an upcoming trip, in which the insurer indemnifies the insured in case of cancellation of a scheduled trip.

Many questions will be posed for those who were not able to return to their homes due to border closures or determination of isolation, amongst others.

Surety bond

Regulated by Circular SUSEP No 477, of 30 September 2013, the surety bond is intended to guarantee the obligations undertaken by the principal before the insured by a main contract.

The standard terms and conditions for the public and private bonds have an express provision for the loss of rights for the insured due to acts of God or force majeure; however, there is no exclusion of coverage expressly and directly related to pandemics.

Therefore, in order to result in a loss of rights case of the insured in the surety bond, the acts of God or force majeure case must be directly related to the default of the principal’s obligations under the main contract. The main contract must also be reviewed in case there are exceptions for the principal to comply with their obligations, which can result in an exclusion of insurance coverage.

Other non-life products

Cyber insurance, credit insurance, product liability, general liability insurance, casualty and many other lines of business will likely be affected as the COVID-19 pandemic further develops. For cyber insurance, working from home policies may have an impact on the security systems of companies, accessing company’s systems without appropriate security, raising the possibilities of phishing attacks caused by such vulnerability. Liability insurance may also be impacted, for example, due to claims arising out of health and safety practices adopted (or not) by companies in cases where there is a link with virus being spread to employees or third parties.

Life insurance

In Brazil it is not uncommon for life insurance products to exclude coverage due to epidemic and pandemic. Given the social implications of the COVID-19 pandemic, several Brazilian insurance companies have publicly announced that they would provide coverage under life insurance products for claims related to the current pandemic. Therefore, products that have exclusion for pandemics would not be applied.

The authors understand insurance companies are allowed, in theory, to make ex gratia payments under such circumstances. However, there are concerns that this could potentially establish precedents in the long term affecting not only insurers making such payments but the insurance market in general.

This precedent can trigger other requests of exemption of exclusions in the future, either to other epidemics/pandemics or to other types of exclusions that may have a significant impact to society.

This may also have wider implications to solvency and provisions of the insurance companies, as it is uncertain how the portfolios could be affected depending on how the pandemic further develops and some products were underwritten and priced on the basis that pandemic was an excluded risk.

The Brazilian insurance regulator (Superintendência de Seguros Privados, or SUSEP) will ensure that insurance companies continue to meet appropriate solvency requirements during the pandemic and formal measures could be taken should concerns arise over the market’s ability to meet their obligations.

Healthcare plan and insurance

Currently set out in Resolução Normativa No 428, of 7 November 2017, issued by the Brazilian National Supplementary Healthcare Agency (Agência Nacional de Saúde Suplementar, or ANS), the list of minimum healthcare procedures and events constitutes the basic reference for mandatory minimum coverage provided by private healthcare plans.

On 12 March, ANS issued Resolução Normativa No 453, of 12 March 2020, which included the test for detection of the novel coronavirus in the list of minimum mandatory coverage, once the patient qualifies in the definition of a suspected or probable case of that virus.

This means that the test for detection of COVID-19 is now included in the list of minimum healthcare procedures and events for beneficiaries of private healthcare plans.

Also, in accordance with the Resolução Normativa, the coverage must be included in private healthcare plans for outpatient and hospital care and undertaken by medical recommendation.

It should be noted that Resolução Normativa No 453/2020 did not establish any adaptation period for private healthcare plans, having entered into force as of the date of its publication.

Although there is no specific treatment to date for COVID-19, the treatments and hospitalisations, depending on the segment of the plan, should be covered by private healthcare plans, as long as those treatments are provided for in the list of minimum healthcare procedures or in the contractual conditions of the plan/insurance.

Due to the current scenario, ANS decided to clarify the above, reaffirming that coverage for treatments due to COVID-19 is already guaranteed among the mandatory coverage for appointments, hospitalisations, therapies and exams that can be used to treat problems arising from said illness.

In any case, the guidance issued by ANS in relation to this matter is that the beneficiary must pay attention to the waiting period and segment covered (outpatient or hospital). It is worth mentioning that urgent and emergency procedures have a maximum legal waiting period of 24 hours, regardless of the waiting period for other coverages.

Other Relevant Changes to Legal, Regulatory and Healthcare Landscapes

As a result of the changes that have been implemented and proposed regulatory updates, Brazil is looking to become more aligned with other countries in terms of being a better place to do business and provide an environment that is more flexible for innovation and foreign business. Below is a summary of the main changes that are relevant to the sector.

Economic Freedom Law

As part of the new government’s liberal strategy, the so-called Economic Freedom Law (Law No 13.874/2019) was enacted, aiming at creating a better environment to do business in Brazil. The Economic Freedom Law had a direct impact on the insurance and reinsurance industry, by revoking Item III of Article 5 and Item X of Article 32 of Decree Law No 73/1966, which regulates insurance and reinsurance operations in Brazil. Said articles established a reciprocity for insurance operations and in the authorisation for the operation of foreign companies in Brazil.

Such changes are viewed as initial steps towards further opening of the sector for foreign players to operate in Brazil, which would be subject to further regulations.

Reshaping the Reinsurance Landscape for Occasional Reinsurers

The government has looked at reinsurance business by increasing the percentage of business that the local markets can cede to foreign reinsurers registered as occasional reinsurers in Brazil, pursuant to Article 8, paragraph 1, of Complementary Law No 126, of 15 January 2007.

Now, pursuant to Decree No 10.167/2019, insurance companies and insurance co-operatives can cede to occasional reinsurers up to 95% of the premiums ceded in reinsurance, considering their operations in each calendar year. This is a relevant increase compared to the 20% previously authorised by Decree 6,499/2008.

Pursuant to this new Decree, local reinsurers can cede 95% of the aggregate value of the premiums related to risks underwritten in a calendar year in contrast to the 50% previously authorised by the revoked Decree.

Tailored Coverage Insurance Products

Following the trend of other countries, where insurers can offer insurance products with tailored coverage periods, on 26 August 2019 SUSEP issued Circular No 592/2019 regulating insurance products with a “reduced term” and “intermittent period” of coverage.

Based on this new regulation, Brazilian insurers can provide coverage for specific periods of time (months, days, hours, minutes); partial periods, with specific criteria for terminating and restarting coverage (as an “on-off” option); specific locations (as commuting paths or limited geographical areas); and other agreed limits.

The rules brought by Circular No 592/2019 open the Brazilian market for adaptation of insurance plans and products with the concept of usage-based insurance (a product with flexible coverage and prices based on usage), as commonly applied in per-pay-ride motor insurance and property insurance available in other countries.

The possibility of offering customers insurance products that are tailored to their needs should broaden the consumer base for the industry, engaging individuals or companies with specific needs that are not currently fulfilled by the products available on the market.

The need for fast and specific analysis, as well as a cost-effective operation, will also stimulate the use of new technologies by the insurance industry, with further use of big data (the structured crossing and analysis of data from different sources) and artificial intelligence to better assess the needs of its clients, evaluate the risks and price its products.

Embargoes and Sanctions

On 7 August 2019, SUSEP issued SUSEP/DIR2/CGCOM Circular Letter No 6 declaring a prohibition of the use of sanctions and embargoes exclusion clauses that exclude coverage based on other countries’ laws in products and policies issued in Brazil due to increased legal issues faced by insurers and insureds.

Following successful lobbying by the insurance industry on the relevance of such clauses in policy language, SUSEP issued SUSEP/DIR2/CGCOF Circular Letter No 5, revoking the previous Circular Letter and outlining new criteria for the use and enforcement of sanctions and embargoes exclusion clauses.

Currently, insurers have been permitted to include in their policy wording clauses relating to the loss of rights, limitations and/or coverage exclusions due to the violation of laws or regulation on economic embargoes or trade sanctions, provided that the wording is not generic or broad.

Purchase of Insurance in Foreign Currency and Operational Rules for Contracting Insurance Abroad

A regulation of the National Counsel of Private Insurance (CNSP), Resolução CNSP No 379, of 4 March 2020, brought changes to Article 2 of Resolução CNSP No 197, of 16 December 2008, that establishes the provisions for purchasing of insurance in foreign currency and the rules to purchase insurance abroad.

The new regulation has lifted the restrictions that were previously set out by Resolução CNSP No 197/2008. Pursuant to the old rule, only certain lines of business could be issued in foreign currency. Now, according to a new provision, which became effective as of 1 April 2020, the insurance companies and insureds can mutually agree to the policy to be issued in foreign currency, except for circumstances that regulations may establish otherwise.

Reinsurance Access to Pension Entities and Private Healthcare Providers?

Resolução CNSP No 380, of 4 March 2020, brings changes to Resolução CNSP No 168/2007, which regulates Resolução CNSP No 126/2007, in order to include open private pension entities (EAPC), closed private pension entities (EFPC) and private healthcare plans entities as cedants for the purpose of contracting reinsurance.

In this context, with the inclusion of the EFPC and the private healthcare plans entities as cedants of reinsurance risks, paragraph 3 of Article 2 of Resolução CNSP No 168/2007 provided attribution to SUSEP of supervision of those operations in which said entities are listed as cedants only, as they are regulated and supervised by other authorities.

However, this change is brought at a regulation level. Therefore, certain aspects of Brazilian law on the matter are explored below.

Federal Law No 9,656/1998, which regulates private healthcare plans entities, plans and insurance coverage, establishes, in its Article 35-M, that private healthcare providers entities are authorised to contract reinsurance with authorised reinsurers.

Furthermore, Complementary Law No 109/2001, which regulates private pension entities, both open and closed, also establishes that such entities can reinsure with authorised reinsurers in Brazil.

However, Complementary Law No 126/2007, which regulates reinsurance operations, defines cedants as “the insurance company that places in reinsurance or the reinsurer that places in retrocession”. The Complementary Law also states that co-operative insurance companies are also considered as cedants.

Therefore, the legal definition of cedant is set out in a law of 2007, which was enacted after Federal Law No 9,656/1998 and Complementary Law No 109/2001, and such definition is silent in respect to EAPC, EFPC and private healthcare providers.

The authors understand that the change brought by Resolução CNSP No 380/2020 is positive to all sectors – private pension, private healthcare and reinsurance. However, based on the principle of rule of law under the Brazilian Constitution, the authors understand that the legality of the changes brought at regulatory level can be questioned, unless the definition of cedant is amended under Complementary Law No 126/2007.

Therefore, the authors strongly recommend that entities looking to reinsure such risks should seek appropriate legal advice to navigate complexities posed by the operations and legal risks relating thereto.

Regulatory Sandbox

On 4 March 2020, Resolução CNSP No 381/2020 was enacted, setting out rules for the authorisation and setting up of insurance companies to take part in the experimental regulatory environment for a determined period (“Sandbox”). Under this regime, the insurers will be permitted to develop innovative projects, based on eligibility, limits and other applicable rules. Resolução CNSP No 381/2020 was further regulated by Circular SUSEP No 598, dated 19 March 2020.

Insurers will be required to enter SUSEP’s bid, requiring a temporary authorisation under the Sandbox. SUSEP will inform on its website the companies that have been granted the authorisation within 45 days of the end of the bid process.

The purpose of the Sandbox is to enable discussions between the regulator and supervised entities, offering a space to further develop the use of new technology for innovation and encourage economic growth.

In the Sandbox, supervised entities can benefit from lighter touch regulation in a safe environment to test, in real time and at a smaller scale, how innovation can affect their business model.

Nonetheless, on 30 March 2020 SUSEP published on its website that deadlines related to the Sandbox bid are suspended due to the COVID-19 pandemic.

Campos Mello Advogados

Av. Pres. Juscelino Kubitschek, 360 – 10th floor
Vila Nova Conceição
São Paulo
SP – Brazil 04543-000

+55 11 3077 3500

+55 11 3077 3501

marcella.hill@cmalaw.com www.cmalaw.com
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Law and Practice

Authors



Campos Mello Advogados was founded more than 38 years ago and currently has over 100 professionals with relevant legal practice experience, in offices in Rio de Janeiro, São Paulo, New York, London and Milan, advising Brazilian and global companies in Brazil, Latin America, Asia, the USA, Europe and Oceania. With a global presence, through its co-operation with DLA, Campos Mello provides a full-service structure and professionals capable of identifying new opportunities and demands to clients, locally and abroad, as well as developing creative, innovative and secure legal solutions for each matter and client profile. The firm offers a comprehensive range of insurance services, including transactional, regulatory, commercial and coverage consultancy. Campos Mello represents both start-ups and established multinational life and non-life (re)insurers, intermediaries, financial institutions and other insurance industry participants. The firm understands the business of insurance as well as the legal issues that underpin the insurance sector.

Trends and Development

Authors



Campos Mello Advogados was founded more than 38 years ago and currently has over 100 professionals with relevant legal practice experience, in offices in Rio de Janeiro, São Paulo, New York, London and Milan, advising Brazilian and global companies in Brazil, Latin America, Asia, the USA, Europe and Oceania. With a global presence, through its co-operation with DLA, Campos Mello provides a full-service structure and professionals capable of identifying new opportunities and demands to clients, locally and abroad, as well as developing creative, innovative and secure legal solutions for each matter and client profile. The firm offers a comprehensive range of insurance services, including transactional, regulatory, commercial and coverage consultancy. Campos Mello represents both start-ups and established multinational life and non-life (re)insurers, intermediaries, financial institutions and other insurance industry participants. The firm understands the business of insurance as well as the legal issues that underpin the insurance sector.

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