Susep opens public consultation on new resolution for reinsurance, retrocession, and co-insurance operations, due to the new Insurance Contract Law

Market contributions must be submitted by December 29

The Superintendence of Private Insurance (Susep) has opened a public consultation on the draft resolution that establishes new rules and criteria for the operations of cession and acceptance of reinsurance and retrocession and their intermediation, co-insurance operations, and operations in foreign currency and insurance contracts abroad.

The new regulation essentially stems from changes introduced by Law No. 15,040/2024 (“Insurance Contract Law”), as well as Supplementary Law No. 213/2025, which provides for cooperative insurance companies and mutual protection associations. The current CNSP Resolution No. 451/2022 will be entirely revoked and replaced by the new regulation.

Market contributions can be submitted by December 29, 2025. As a result, the regulation that will replace CNSP Resolution No. 451/2022 should be issued by SUSEP only in 2026. Until then, there is no obligation to change reinsurance and retrocession contracts, but the content of the consultation indicates Susep’s interpretation on several points of concern for the market.

Below, we highlight the main changes presented by the draft resolution and our comments.

Participation of the reinsurer in claims adjustment

One of the most controversial points of the public consultation was the exclusion of Article 14 from CNSP Resolution No. 451/2022, which enabled reinsurers to participate in claims adjustment through cooperation or control clauses. Susep’s rationale for this exclusion is Article 76 of the Insurance Contract Law, which states that the adjustment and settlement of claims are the exclusive responsibility of the insurer, who can appoint claims adjusters, but always retaining sole authority to determine coverage  in respect of losses  and the amount payable to the insured.

Susep’s interpretation has both surprised and concerned the national and international (re)insurance market. In our view, Article 76 does not prohibit the reinsurer’s participation in the procedure but merely reinforces the insurer’s responsibility for the coverage position and the payment of indemnity to the insured. In this sense, Susep’s understanding seems to exceed the residual regulation of the law.

It is worth mentioning that the new Insurance Contract Law emphasizes that the reinsurance contract is an autonomous contractual relationship between the ceding insurer and the reinsurer, and thus, the reinsurer is not liable to the insured or beneficiary. This is the content of Article 61 of the new law [1], which also clarifies in Article 62, paragraph 2, that the insurer cannot raise any disputed issues in its relationship with its reinsurer against the insured or beneficiary – to whom it is directly accountable [2]. The Insurance Contract Law, therefore, reinforces the independence of contractual relationships (insured vs. insurer; insurer vs. reinsurer), which, in our view, also invalidates the interpretation presented by Susep, prohibiting cooperation or control clauses.

In fact, Supplementary Law No. 126/2007 already established in its Article 14 [3] that reinsurers and retrocessionaires do not respond directly to the insured or beneficiary, which the new law fully maintains and validates. Therefore, in our understanding, Article 76 of Law No. 15.040/2024 merely inserts an express provision regarding the insurer’s responsibility for the regulation and settlement of claims, which already resulted from the interpretation of Supplementary Law No. 126/2007 and is repeated by the new Insurance Contract Law. Thus, there is no change that justifies the repealing of the previous provision regarding the possibility of the reinsurer’s participation in decisions about the claim as contractually agreed with the insurers.

Furthermore, the provision of cooperation and control clauses in reinsurance contracts is an international market practice, especially in facultative reinsurance with cession of a substantial percentage of the risk to the reinsurer. Thus, the prohibition of this type of clause puts Brazil against the global market trend, which may compromise reinsurance capacity, especially for large risks, harming the insured, who may find it more difficult to renew their policies.

That said, since this is a draft for public consultation, the market expects SUSEP to reconsider its position,  considering the legal and technical rationale that the market will present until December 29, 2024.

Tacit Acceptance

The tacit acceptance of the reinsurance proposal within 20 days from its receipt [4] is a major concern for the reinsurance market, as it reverses the logic of contracting. Regarding this, the draft provides that SUSEP may extend the 20-day period through specific regulation and will establish the minimum requirements for the proposal.

For now, the only provision on the subject in the consultation is the definition of “reinsurance proposal”: A formal document that expresses the intention of a cedent to contract reinsurance and contains the necessary information for a reinsurer or pool reinsurers to analyze and decide whether to accept or reject the proposed risk.

Therefore, even though SUSEP has not issued the draft to address the proposal requirements, the definition above indicates that the proposal must address the intention to contract and the necessary elements for risk analysis.

However, the draft provides that when acceptance results from silence, proof of receipt of the proposal will serve as evidence of coverage (article 12, paragraph 10), without additional provisions regarding this exceptional type of  contracting, which would not result from negotiation between the parties.

One unregulated point is the provision of a specific email for receiving proposals. We understand that the absence of a specific provision does not prevent reinsurers from reviewing proposal reception channels and internal procedures to avoid claims of tacit acceptance regarding mere quotation requests not characterized as proposals or proposals sent to incorrect channels.

Deadline for formalizing the reinsurance contract: From 180 to 60 days

The draft reduces the contractual formalization period from 180 to 60 days from the date of risk acceptance (express or tacit) or the start of coverage. Non-compliance will be subject to sanctions to be defined in specific regulation.

The formalization of the reinsurance contract occurs through the issuance of the contract or slip with the reinsurer’s signature, date, and identification of its legal representative, with remote signing being allowed. For amendments to contractual clauses, the issuance of an endorsement is required (article 12).

Advance of reinsurance recovery

In line with article 63 of the Insurance Contract Law, the draft reiterates the provision for the advance of reinsurance recoveries to the cedent, with the caveat that the advanced amounts must be immediately used for indemnity payment only in the case of advances directly related to the fulfillment of the contract.

This is a welcome clarification, considering the possibility of advance payments due to contractual provisions for the financial protection of the cedents themselves.

Article 14 provides that reinsurance clauses will be freely negotiated (except where the law provides mandatory provisions), including the procedures and documents necessary for the recovery of indemnities.

Notification of the reinsurer in case of litigation

The draft reiterates the requirement that the contract stipulates the procedure for notifying the reinsurer when the cedent is sued by the insured in litigation, as per article 62 of the Insurance Contract Law (art. 14, paragraph 2).

Applicable law to insurance contracts signed abroad

Another controversial point of the draft is the extension of the enforceability of Brazilian law even to insurance contracts signed abroad. The draft states that Brazilian law will exclusively apply to insurance contracts signed abroad when the insured or the proposer has residence or domicile in Brazil or when the assets on which the guaranteed interests fall are located in Brazil (art. 38, paragraph 6).

The law, however, expressly provides that this provision applies “without prejudice to the provisions of article 20 of Supplementary Law No. 126/2007,” which provides for the hypotheses of permission for contracting insurance abroad. In our view, this provision means that the application of Brazilian law is not imposed in cases where contracting abroad is legally authorized, even if the contractor is a resident of Brazil or the assets and interests are located in Brazil.

Arbitration: choice of seat and applicable law

The draft also exceeds the competence of SUSEP by regulating article 131 of the new insurance law, which deals with the jurisdiction for lawsuits and arbitrations promoted between insurers, reinsurers, and retrocessionaires, which may directly interfere with the execution of insurance contracts. According to article 15 of the draft, reinsurance contracts aimed at protecting risks in Brazil must include a clause determining the submission of any disputes to Brazilian legislation and jurisdiction, without excluding arbitration, whose seat and applicable law are freely chosen by the parties. Furthermore, the draft provides that actions and arbitrations must be filed in Brazil, in the forum of the defendant’s domicile, when they may directly interfere with the execution of insurance contracts signed by insurers authorized to operate in Brazil, where the insured or the proposer has residence or domicile in the country, or that guarantee interests located in Brazil.

The new law, however, does not restrict the choice of applicable law, nor the seat of arbitration in the reinsurance contract (only in the insurance contract). In reality, the provision of the sole paragraph of article 131 deals with territorial jurisdiction, which does not apply to arbitration, but only to cases of interference in the execution of insurance contracts. Therefore, SUSEP cannot, through infralegal regulation, alter the arbitration law that allows the parties to choose the applicable law in arbitration, provided there is no violation of good customs and public order. The arbitration law also provides that the parties can agree that the arbitration be conducted based on general principles of law, customs, and international trade rules.

Preferential Offer

The draft maintains the provision for a preferential offer to local reinsurers, in accordance with Supplementary Law No. 126/2007, mentioning that specific regulation should establish the minimum elements for the offer to be considered valid. It also provides that misconduct (previously referred to as “unfair practices”) will be punished with appropriate sanctions, also in accordance with specific regulation (article 6).

Cession Limit

Regarding the cession limit, the draft maintains the possibility of cession in retrocession exceeding 70%, with technical justification to be presented by March 31 of the following calendar year, as was already the case for cession in reinsurance exceeding 90% (article 8, II).

Risk Transfer to Persons Based in Tax Havens

The draft maintains the prohibition of risk transfer to persons based in tax havens, only updating its definition according to changes in Law No. 9.430/1996 (by Law 14.596/2023) and in RFB IN No. 1.037/2010 (by RFB IN No. 2265/2025), which currently provides for classification for countries or dependencies that do not tax income or tax it at a rate lower than 17%, a percentage that was previously 20% (article 18, paragraph 1).

Coinsurance

The draft consolidates coinsurance rules compatible with the Insurance Contract Law. In this sense, it provides that coinsurance can be documented in instruments issued by each coinsurer with the same content, and that non-compliance among coinsurers does not harm the insured, beneficiary, or third party. Additionally, it prohibits coinsurance without assumption of responsibility and reiterates that there is no joint liability among the coinsurers, unless otherwise stipulated in the contract. Finally, the draft regulates the possibilities of acceptance and cession by single cooperatives, central cooperatives, and confederations, including administration and representation rules (articles 29 to 33).

The documents related to Public Consultation No. 14/2025 are available in full on SUSEP’s website.

Demarest’s Insurance, Reinsurance, Private Pension, and Supplementary Health team will actively monitor and participate in the public consultation and will remain available to provide any necessary clarifications.

1 Art. 61. The reinsurer, unless otherwise provided, and without prejudice to the provisions of paragraph 2 of Article 62 of this Law, does not respond, based on the reinsurance business, to the insured, the insurance beneficiary, or the third party harmed.

2 Art. 62. If sued for the review or fulfillment of the insurance contract that motivated the facultative reinsurance, the insurer, within the response period, must promote judicial or extrajudicial notification of the reinsurer, informing them of the filing of the action, unless otherwise contractually provided.

Paragraph 1 The reinsurer may intervene in the case as a simple assistant.

Paragraph 2 The insurer cannot raise against the insured, the beneficiary, or the third party the non-compliance of obligations by its reinsurer.

3 Art. 14. Reinsurers and their retrocessionaires will not respond directly to the insured, participant, beneficiary, or assisted party for the amount assumed in reinsurance and retrocession, with the ceding companies that issued the contract being fully responsible for indemnifying them.

4 Art. 60. By the reinsurance contract, the reinsurer, upon payment of the equivalent premium, guarantees the insurer’s interest against the risks inherent to its activity, arising from the conclusion and execution of insurance contracts.

Paragraph 1 The reinsurance contract is functional to the exercise of the insurance activity and will be formed by the reinsurer’s silence within 20 days from the receipt of the proposal.

Paragraph 2 In case of proven technical necessity, the supervisory authority may extend the acceptance period by the reinsurer’s silence established in paragraph 1 of this article.