CIRCULAR SUSEP No. 683, OF 18 DECEMBER 2022 (versão em inglês/LegisMap)

CIRCULAR SUSEP 683, OF 18 DECEMBER 2022 (*)

Provides for the operational procedures for the preferential offer of risks to local reinsurers, for the proof of insufficient offer of capacity of local and foreign reinsurers for the purposes of transferring risks with reinsurers not authorised to operate in Brazil, and for contracting insurance abroad.

The SUPERINTENDENT OF THE SUPERINTENDENCY OF PRIVATE INSURANCE - SUSEP, in the use of the powers conferred upon him by art. 36, letter "b", of Decree-Law 73, of 21 November 1966, considering the provisions of art. 3, sole paragraph, of Complementary Law 126, of 15 January 2007, Decree 10.139, of 28 November 2019, CNSP Resolution 451, of 19 December 2022, and what is contained in Susep File 15414.635856/2021-49, resolves:

CHAPTER I
PRELIMINARY PROVISIONS

Art. 1. To provide for the operational procedures for:

I - preferential offer of risks to local reinsurers;

II - proof of insufficient offer of capacity by local and foreign reinsurers for the purpose of transferring risks with reinsurers not authorised to operate in Brazil; and

III - contracting of insurance abroad.

CHAPTER II
PREFERENTIAL OFFER AND INSUFFICIENT CAPACITY OF LOCAL AND FOREIGN REINSURERS TO TRANSFER RISKS WITH REINSURERS NOT AUTHORISED TO OPERATE IN BRAZIL

Section I
Operating procedures for the preferential offer of risks to local reinsurers

Art. 2. The preferential offer consists in the right of preference that local reinsurers have in relation to other reinsurers for the purposes of accepting automatic or facultative reinsurance contracts, provided that the local reinsurer accepts the respective reinsurance offer under conditions identical to those offered and/or accepted by the international market.

Sole paragraph. For purposes of compliance with the preferential offer, the insurance company should submit a formal consultation to one or more local reinsurers of its free choice, in compliance with the operating procedures established in art. 8.

Art. 3. In the event of acceptance of the conditions offered by one or more local reinsurers, the ceding company may freely choose one or more of those local reinsurers, provided that the sum of their participations observes, at least, the percentage provided for in the legislation.

Art. 4. In the event of total or partial refusal of the offer, and the minimum percentage of preferential offer provided for in the legislation is not accepted, the insurance company should offer the reinsurance contract to all other local reinsurers, if necessary, in order to satisfy the provisions of this Circular.

Art. 5. The requirement defined in the legislation is considered to have been met when:

I - the minimum percentage of the preferential offer has been contracted with local reinsurers;

II - after consulting all local reinsurers, and these, as a whole, have wholly or partially refused the minimum percentage of the preferential offer, and the remaining percentage has been accepted under the same terms and conditions by the other reinsurers; or

III - foreign reinsurers accept terms and/or conditions different from those initially offered and totally or partially refused by all local reinsurers, provided that these same terms and/or conditions have been offered to local reinsurers as provided for in this Chapter.

Section II
Proof of insufficient offer of capacity by local and foreign reinsurers for purposes of risk transfer with reinsurers not authorised to operate in Brazil

Art. 6. Proof of insufficient offer of capacity by local and foreign reinsurers, at whatever prices and conditions, shall occur through the refusal of the risk, following the formal consultation with all local and foreign reinsurers operating in the line of business to which the risk to be ceded belongs, in compliance with the operating procedures set forth in art. 8.

Art. 7. In the event of risk transfer in reinsurance and retrocession operations, with reinsurers not authorised to operate in Brazil, exclusively when the insufficient offer of capacity by local and foreign reinsurers is proven, in accordance with art. 6, cedents should, within a maximum period of 30 (thirty) days as of the date of the beginning of the validity of the contract or the beginning of the validity of the coverage, whichever occurs last, communicate it to Susep, under the terms of the form of Annex I.

Section III
Operational procedures for the consultations referred to in Sections I and II

Art. 8. The consultations referred to in art. 2, sole paragraph, and art. 6 should observe the following operational procedures:

§ 1. The consultations referred to in this article should contain the terms, conditions and information necessary for the analysis of the risk, and should be made available on an equal basis to all reinsurers consulted.

§ 2. The cedent must have operational procedures that guarantee the effective sending of the offer.

§ 3. Reinsurers shall have a period of 5 (five) working days, in the case of facultative contracts, or 10 (ten) working days, in the case of automatic contracts, as from the sending, by electronic means, of the offer by the cedent, to formalise the total or partial acceptance of the offer, or, in the case of a preferential offer, the refusal with the express availability for reassessment of the offer under different conditions.

§ 4. Reinsurers may request, if justifiable, during the time limits established in § 3 of this article, for a single time in the case of facultative contracts, and more than once in the case of automatic contracts, additional documents and/or information, and the time limit referred to in the aforementioned paragraph shall be suspended until the cedent delivers the requested documents and/or information.

§ 5. The periods suspended by the request for supplementary information will start to be counted for their remainder as from the first business day following the date of delivery by the transferor of the documents and/or information requested.

§ 6. In the event of risk acceptance, the reinsurer should clearly define the terms, conditions and the share of the risk accepted.

§ 7. The absence of manifestation by the reinsurers, within the period mentioned in § 3, shall be considered as refusal for the purposes of proving the situation of insufficient offer of capacity by local and foreign reinsurers and, in the case of a preferential offer, as a definitive refusal to cover the risk under any terms and conditions.

§ 8. The situation of insufficient offer of capacity referred to in art. 6 is proven when, after consulting all local and foreign reinsurers, they have, as a whole, refused totally or partially the risk object of the cession.

§ 9. In the event of definitive refusal to cover the risk under any terms or conditions, or of absence of response to the preferential offer by the local reinsurer, in the manner provided for in § 7, the cedent is released from the obligation to make a new offer of the same contract, facultative or automatic, to that local reinsurer, even if there is a change in the terms and/or conditions relating to the same risk.

§ 10. For the purposes of compliance with the preferential offer, the insurance company may include in the consultation, if any, quotes from foreign reinsurers, which are committed to accept, separately or jointly, the same conditions offered.

§ 11. In the event of alteration of terms and/or conditions by the cedent, with the exception of the provisions in § 9, it should submit a new preferential offer to local reinsurers, under the terms established in this article.

§ 12. For purposes hereof, deadlines shall expire at 24:00h of the last business day, considering Brasília/DF time.

CHAPTER III
CONTRACTING OF INSURANCE ABROAD

Art. 9. The contracting of insurance abroad is restricted to the cases provided for in the regulations in force.

§ 1. In compliance with the provision in this article, Susep may, at any time, request from the insured and/or its intermediary the documents that prove the compliance of the contracting of the insurance abroad with the regulation in force.

§ 2. Failure to present the documentation described in § 1 will subject the insured and its intermediary, when residing or domiciled in Brazil, to the applicable penalties under the legislation in force.

Art. 10. For contracts related to risks for which coverage has not been obtained in Brazil, Susep may, at any time, without prejudice to other information, require that the insured and/or its intermediary present the following documents:

I - copy of consultations made to at least 5 (five) insurance companies authorised to operate in Brazil in the insurance line of business to which the risk refers, being the consultations the same for all of those insurance companies;

II - copy of the documents issued by the insurance companies mentioned in the previous item with the respective refusal for the insurance coverage, including the reasons presented for the decision; and

III - copy of the consultation made to the insurance company abroad in the same terms as those made to the insurance companies authorised to operate in Brazil.

§ 1. In the event that there are not at least 5 (five) insurance companies authorised to operate in Brazil in the insurance line of business to which the risk refers, and in order to comply with the provisions of item I of this article, all insurance companies operating in that line of business should be consulted.

§ 2. For the purposes of complying with the provisions in item II of this article, refusals of coverage due to lack of information provided by the proponent should not be considered.

§ 3. For the purposes of complying with the provisions in items I and II of this article, consultations made to insurance companies authorised to operate in Brazil will not be considered:

I - if on a date after the policy contracted abroad becomes effective; and

II - that have not written premiums in the insurance line of business to which the risk refers in the 12 (twelve) months prior to the beginning of the policy term, according to information from the Susep Statistics System - SES, available on Susep's website.

Art. 11. If requested by Susep, the insured and/or its intermediary should present the proof that the insurance contracted abroad was object of an international agreement ratified by the National Congress of Brazil.

Art. 12. The contracting of insurance abroad for the coverage of risks abroad made available to legal entities should be informed to Susep within 60 (sixty) days as from the beginning of the validity period of the risk, under the terms of the model letter of Annex II to this Circular.

Art. 13. The insured and its intermediary, when domiciled or resident in Brazil, should be subject to the penalties provided for in specific regulations in case of contracting insurance abroad that is not in accordance with the provisions of this Circular.

Art. 14. Susep shall not intervene in litigations related to insurances contracted abroad.

Art. 15. The contracting of insurance abroad, referred to in article 10, must be communicated to Susep by the insured and/or its intermediary within 60 (sixty) days from the beginning of the validity period of the risk, under the terms of the model form of Annex III to this Circular.

§ 1. The original documents, physical or electronic, related to the contracting of insurance abroad, including those referred to in article 10 of this Circular, should be kept at the disposal of Susep by the insured and its intermediary for a minimum period of 5 (five) years, as from the end of the validity period of the contracted insurance, without prejudice to different periods required by other control bodies.

§ 2. The period for safekeeping mentioned in this article will be suspended for the period during which an administrative sanctioning process is being carried out within the scope of Susep, or a judicial process, as well as any other legal causes interrupting the statute of limitations.

CHAPTER IV
FINAL PROVISIONS

Art. 16. For the cases described in this Circular, the regulations of the National Monetary Council (CMN) and the Central Bank of Brazil (Bacen) should be complied with, without prejudice to others, if applicable.

Art. 17. The following are hereby revoked:

I - Circular Susep 524, of 14 January 2016;

II - Circular Susep 545, of 27 January 2017;

III - Circular Susep 562, of 24 December 2017;

IV - Circular Susep 603, of 12 May 2020; and

V - Electronic Circular Letter CGRES/DIR1/SUSEP nº 1, of 10 December 2020.

Art. 18. This Circular shall enter into force on 1 January 2023.

ALEXANDRE MILANESE CAMILLO

(Official Gazette DOU of 21.12.2022 – pages 219 and 220 – Section 1)

ANNEX I

TO THE SUPERINTENDENCY OF PRIVATE INSURANCE

Reference: RISK TRANSFER UNDER THE TERMS OF § 4 OF ARTICLE 9 OF COMPLEMENTARY LAW 126, OF 15 JANUARY 2007.

INTERESTED: [in the case of facultative contracts] / [in the case of automatic contracts]

LEGAL ENTITY TAX PAYER NUMBER (CNPJ) / INDIVIDUAL TAX PAYER NUMBER (CPF): [in the case of facultative contracts]

SHORT DESCRIPTION OF THE COVERED RISK / INSURED SUBJECT: (maximum three lines)

COVERAGES TO BE CONTRACTED: [in the case of facultative contracts]

MAXIMUM GUARANTEE LIMIT: [in the case of facultative contracts]

CESSION INFORMATION:

< City of origin of the communication to Susep >, XX of XXXXX of 20XX.

ANNEX II
CONTRACTING INSURANCE ABROAD TO COVER RISKS ABROAD - ART. 12 OF CIRCULAR SUSEP 683, OF 2022

TO THE SUPERINTENDENCY OF PRIVATE INSURANCE

Reference: CONTRACTING OF INSURANCE ABROAD FOR THE COVERAGE OF RISKS ABROAD - Art. 12 of Circular Susep 683, of 2022

INTERESTED:

LEGAL ENTITY TAX PAYER NUMBER (CNPJ):

LINE OF BUSINESS:

INSURANCE:

SHORT DESCRIPTION OF THE COVERED RISK / INSURED SUBJECT: (maximum three lines)

COVERAGES TO BE CONTRACTED:

INSURED AMOUNT:

TOTAL PREMIUM (NET OF FINANCIAL OPERATIONS TAX - IOF):

DEDUCTIBLES:

VALIDITY OF THE POLICY:

INSURER TO BE CONTRACTED:

COUNTRY:

DEADLINE OF THE QUOTATION: //, inform the deadline for validity of the quotation>

, XX of XXXXXX of 20XX.

ANNEX III
COMMUNICATION OF CONTRACTING OF INSURANCE ABROAD FOR LACK OF COVERAGE IN BRAZIL - ART. 15 OF CIRCULAR SUSEP 683, OF 2022

TO THE SUPERINTENDENCY OF PRIVATE INSURANCE

Reference: COMMUNICATION OF INSURANCE CONTRACTED ABROAD FOR LACK OF COVERAGE IN BRAZIL - Art. 15 of Circular Susep 683, of 2022

INTERESTED / INSURED:

LEGAL ENTITY TAX PAYER NUMBER (CNPJ) / INDIVIDUAL TAX PAYER NUMBER (CPF):

INTERMEDIARY:

LINE OF BUSINESS:

INSURANCE:

SHORT DESCRIPTION OF THE COVERED RISK / INSURED SUBJECT: (maximum three lines)

COVERAGES TO BE CONTRACTED:

INSURED AMOUNT:

TOTAL PREMIUM (NET OF FINANCIAL OPERATIONS TAX - IOF):

DEDUCTIBLES:

VALIDITY OF THE POLICY:

INSURER ABROAD:

COUNTRY:

BRAZILIAN INSURERS CONSULTED:

, XX of XXXXXX of 20XX.

(*) The information provided in this publication is general and may not apply to a specific situation or person. Every effort has been made to ensure that matters of concern to readers are covered. Although the information provided is accurate, be advised that this is a developing area. The information contained herein is not intended to be relied upon or to be a substitute for legal advice in relation to particular circumstances. Specific legal advice should always be sought from experienced local advisers. Accordingly, Editora Roncarati accepts no liability for any loss that may arise from reliance upon this publication or the information it contains.

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