The Superintendence of Private Insurance (SUSEP) opened Public Consultation No. 24/2021, putting forward a draft Circular that repeals SUSEP Circular Nos. 477/2013 and 577/2018 and introduces new provisions on the topic of Surety Bond insurance.
The modifications suggested by the Draft are shown in the comparative table below, among which we highlight the following:
- Exclusion of standardized contractual conditions adopted by normative rules of law, since the Draft proposes the promotion of contractual freedom and encourages the creation of new clauses;
- Clearer wording of the insurance objective with the establishment of “guaranteed obligations” instead of “assumed obligation”, in order to expand the coverage to be offered and remove possible incompatibilities of the policy with the main contract;
- Strict relationship between the policy and the main contract, wherein the Insurer is prohibited from denying the payment of a claim equivalent to the economic interest of the Insured, in the case that the there is a conflict between the policy issued and the terms of the main contract;
- Express provision regarding the coverage of the totality of the obligations of the main purpose of the guaranteed contract, unless otherwise expressly provided for in such main purpose, in the specific legislation, or when requested by the Insured, and by highlighting the obligations effectively guaranteed, all of which aims to settle old discussions in the market as to the scope of the coverage as regards the purpose of the guaranteed contract;
- When the term of vailidity of the guaranteed obligation is determined by a date or an event, the policy will be in force for the same term as the obligation, and the structuring of a policy with a term shorter than that of the obligation – and linked to successive renewals -, will not be allowed;
- When the term of validity of the guaranteed obligation is undetermined, the validity period of the policy will be agreed upon between the parties;
- Requirement of the Insured’s request or his express agreement for the amendment and the termination of the policy;
- Possibility of including third parties as beneficiaries in the policy;
- Permission to establish deductibles, mandatory participations or grace periods, upon express consent of the Insured;
- Exclusion of the possibility of execution of the counter-guarantee by the Insurer, in the case of insurance premium default by the policyholder;
- Determination that the execution of the guaranteed obligation, when this is the form of payment of the indemnity, must be carried out under the full responsibility of the Insurer;
- Exclusive imputation to the Insured of the choice of guarantee to be executed in the event that more than one guarantee covering the main purpose exists;
- Definition of default of obligations (i) arising, exclusively, from acts or facts which are the responsibility of the Insured or (ii) which are not the responsibility of the policyholder as excluded risks;
- Possibility, by means of a prior agreement, for the insurers to follow up on and/or monitor the purpose of the main contract, to act as mediator of default or of any conflict between the policyholder and the Insured, and also to provide assistance to the policyholder;
- Provisions on conflict of interest between insurers and policyholders.
In general, the Draft introduces important innovations to the segment, in accordance, additionally, with the provisions of Law No. 14,133, of April 1, 2021. Furthermore, several aspects were adjusted based on precedents and discussions already held in the market, in particular on the adequacy of coverage to the guaranteed purpose, period of validity, and scope of payment of the indemnity, in order to increase the reliability of the surety bond insurance compared to other types of guarantees, such as bank guarantees.
The full draft Circular can be accessed at this link and we also make available attached a comparative table prepared by Demarest (only in PT-BR) that presents a comparison of the texts of SUSEP Circular No. SUSEP Circular 477/2013, modified by SUSEP Circular No. 577/2018, and the draft in consultation.
Interested parties may send comments or suggestions on the text by electronic message addressed to firstname.lastname@example.org, in accordance with the specific standardized table duly completed, by July 31, 2021.
Demarest’s Insurance and Reinsurance team is closely monitoring the development of this public consultation through to the publication of the final version and makes itself entirely available to provide any clarifications on the subject.