Insurance & Reinsurance

Introduction

One of the main attractions of the Latin American market to international insurers and reinsurers is the combination of low insurance penetration together with a fast emerging middle class. Estimates indicate that 3 per cent of the world’s insurance premium is generated from Latin America, although Latin America has 9 per cent of the world’s population. By comparison, 41 per cent of the world’s insurance premium is generated from Europe, which has only 11 per cent of the world’s population and 33 per cent of the world’s insurance premium is generated from North America, which has only 5 per cent of the world’s population. The potential scope for market growth in Latin America is therefore substantial.

While the combination of low insurance penetration and an emerging middle class is, in principle, a very attractive proposition for underwriters, the practicalities of operating in a specific country will depend on whether and to what extent the business and regulatory environment allows re/insurers to flourish. The ease of operating is closely linked with the political profile of the specific country.  Politics are relevant for a number of reasons, for example, many large assureds in Latin America (eg, banks, utility companies, oil companies, ports, etc) are state or quasi-state owned. In various countries this extends to re/insurance carriers. There is also a direct correlation between interventionist politics and heavy market regulation.

Latin America comprises 20 sovereign states, which cover an area from Mexico to Chile and Argentina and includes the Caribbean. Each country has its own specific identity and its own cultural and legal framework. From an insurance and reinsurance perspective (underwriting, claims handling or regulatory) there is no single set of rules that applies across the region. Taking a very high-level view of some of the main countries in the region it is possible to identity four key political profiles:

  • The liberal, pro-business countries of Chile, Colombia, Mexico, Panama, Peru, Uruguay and new entrant, Argentina;
  • The populist left-leaning countries of Bolivia, Ecuador and Nicaragua;
  • The region’s giant, Brazil, which is responsible for just under 50 per cent of regional insurance premium; and
  • Venezuela, whose “economy is collapsing as if the nation were at war” (the Economist, 28 January 2017). 

Every year for the past 14 years, the World Bank has published a report that examines the “ease of doing business”. The 2017 report has ranked 190 countries using 11 different criteria including, for example, the procedure, time and cost to start a business, deal with construction permits, obtain electricity, register property, get credit, protect minority investors, pay taxes, trade across borders, enforce contracts and resolve insolvency.

What the study shows is that – save for new entrant Argentina, which has a long way to climb – the liberal, pro-business countries described above rank comfortably in the top 100, among various western and eastern European countries. The populist left-leaning countries of Bolivia, Ecuador and Nicaragua are in the 100 to 150 category. 

In spite of obtaining the status of sixth biggest economy by GDP in 2012 (just above the UK), Brazil is in 123rd position, just beneath Uganda. It is currently exiting its worst economic downturn in 25 years. Since it started in 2014, operation 'lava jato' has uncovered a bribery network made up of executives from Petrobras, the biggest construction companies and scores of officials and politicians, in Brazil and overseas. At the time of writing this article, the country is carefully monitoring the second round of voting for the next president and whether the far right candidate, Jair Bolsonaro, will prevail over Fernando Haddad of the incumbent workers' party, PT.

Venezuela is in a woeful 187th position on the ease of doing business rankings, four countries from the end, just above Somalia, Eritrea and Libya. Inflation in Venezuela is predicted to reach over 1.37 million per cent by the end of this year. Shortages of food and medicine have caused hunger and looting, children are suffering from acute malnutrition and democracy is being dismantled. The current president, Nicholas Maduro, has brought the country to its knees.

Macro political and economic issues aside, there are things which insurance and reinsurance companies operating in the region can do to help themselves. One example is the need to recruit experts who are experienced in the local business, regulatory and operating environment. This is especially important since the arrival of so many international entrants caused capacity to soar and rates to drop across the entire region. Most players are now operating in an unprecedented soft market; at the same time, the fundamentals of many economies in the region have been deteriorating. All companies are looking for a competitive advantage.

From an underwriting and claims handling perspective, it is important to take into account that in many cases policy wordings will be under the local law and jurisdiction of the country in which the insured risk is located. This may be for several reasons, including local regulatory requirements, commercial reasons or, in the reinsurance context, a wish to ensure that the insurance and reinsurance policies have the same law and jurisdiction clause as the underlying policy (notwithstanding the potential comfort under English law provided by Vesta v Butcher or Groupama Navigation v Catatumbo).

Simply translating the wording into a local language will not guarantee the right coverage, since local regulations and legislation must be taken into consideration. While local trends exist with regard to the specific provisions of insurance and reinsurance law and claims handling, the assumption that all countries in the region follow homogeneous rules must be avoided. The terms of each policy and any claim arising thereunder must be considered in isolation and in accordance with the applicable law governing the contract and the local claims-handling rules.

With that warning, underwriters and claims handlers should be aware that in most jurisdictions in Latin America:

  • a “warranty” or “condition precedent” will not have the same meaning or effect as it has under English law;
  • utmost good faith normally attaches a different duty of disclosure, sometimes premised on the questions asked in the proposal form, and the remedy of rescission (as opposed to damages) may be difficult if not impossible, absent proof of bad faith;
  • there is usually a very short time frame within which an insurer must adjust and settle a loss and such time frame may be woefully inadequate in the context of complex losses. A common complaint of local cedants is that the time frame is also insufficient to get reinsurers on side, so the cedant ends up in a funding position;
  • under most laws in Latin America, an insurance or reinsurance broker is an independent intermediary – it is therefore more difficult to establish an agency relationship; and
  • the concept of a “reservation of rights” or “without prejudice” correspondence does not exist in most jurisdictions, although their effect can be achieved by agreement between the parties.

In addition to the above:

  • there are translation issues. Underwriters and claims handlers need to be careful that any policy translation is accurate. It should be clear which translation prevails in the event of any inconsistency or ambiguity.
  • they need to be familiar with local limitation rules, disclosure obligations and rules regarding the award of interest, costs, monetary correction, punitive and moral damages.
  • it is also important for stakeholders to have a handle on court procedure, including the level of local judicial expertise and the amount of time a case is likely to take to get to judgment.

In some cases, the answers to these questions are simply not clear because the questions have not yet been properly addressed under the local regime.

While the underwriting environment remains challenging in Latin America, many countries still offer enough potential profit to entice insurers and reinsurers to continue expanding their operations. Overseas players are especially interested in Mexico and Brazil (on account of its vastness) and the Andean countries of Chile, Colombia, Peru and, more recently, in Argentina. The stakes are high, capital set-up costs are substantial and the margin for short-term profit is slim. However, for those who are in the market for the long term, the potential for profit does exist.

In the current soft markets, it is more important than ever for insurers and reinsurers underwriting in the region to pay close attention to their wordings and to maintain underwriting discipline. This will necessarily require an understanding of local law and claims handling issues. This regional comparison is intended to provide a high-level overview of the main issues and we hope it is helpful and of interest.

Events

Events

Latin Lawyer Live 10th Annual Private Equity

Events

Latin Lawyer Live 6th Annual Labour & Employment

Insight

Reference

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Construction

Chile

Alfonso Reymond Larraín and Rodrigo Riquelme Yanez

Reymond & Cía

Brazil

Fernando Marcondes, Ricardo Medina Salla, Marlon Shigueru Ushiro Ieiri, Adriana Regina Sarra de Deus and Juliana Yumi Shiina Morato

LO Baptista

All Reference

Guides

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The Guide to Infrastructure and Energy Investment

How to Build Up a Region: Development Banks and Multilateral Financing

Thomas Hechl and Vanessa Pinto Villa

Hogan Lovells LLP

The Role of Project Finance in Developing a Region: Trends and Considerations

Andrés Arnaldos Montaner , Daniel D Bartfeld , Jaime E Ramirez and Roland Estevez

Milbank, Tweed, Hadley & McCloy LLP
All Guides