By Andrés Amunátegui & Sascha Stullenberg
|Published 03 April 2020
On 12 March, the Argentinean national authority, the Poder Executivo Nacional de Argentina ("PEN") ordered the social, preventative, and compulsory isolation of the entire population, extending those measures until 14 April inclusive. On 29 March, the running of time limits was suspended within the context of administrative procedures until 31 March 2020.
On 12 March, the Argentinean national authority, the Poder Executivo Nacional de Argentina ("PEN") ordered the social, preventative, and compulsory isolation of the entire population, extending those measures until 14 April inclusive. On 29 March, the running of time limits was suspended within the context of administrative procedures until 31 March 2020.
The Supreme Court declared the period 16 to 31 March to be non-business days for the purposes of judicial proceedings in all courts. Likewise, court service was suspended to the public, save for urgent matters that cannot be delayed.
All submissions to be made to the Federal National Justice will be in digital format.
With regard to arbitration, and notwithstanding that arbitration is not a common practice in Argentina, it is understood that, by analogy, in the case of proceedings already initiated, the same suspension of time limits will apply, in the interests of justice.
The activities of adjusters and experts have also been limited. Insurers must obtain special authorisation for them to be permitted to to attend in the event of major losses. Most insurance companies are lowering their demands for original documentation.
To date, no measures have been taken that have a direct impact on insurance coverage.
By virtue of the emergency measures adopted by the PEN amid the current situation, we consider that a force majeure event could be created, impacting the effective fulfilment of the obligations of the parties to any contract, including an insurer.
By a resolution issued by the National Council of Justice (CNJ) court buildings have been required to close and there has been a suspension of proceedings, hearings and deadlines up to 30 April 2020. Lawyers and judges may continue to undertake their work digitally.
As to arbitration procedures, each Arbitration Centre has issued its own rules regarding the suspension of activities. By way of example these include, (i) a direction that claims and other documents be submitted by e-mail, (ii) confirmation that guidelines will be established to conduct hearings remotely, with all personal hearings suspended.
With regard to the services of experts and adjusters, delays may well occur. Having regard to the quarantine applicable in some states and cities, such service providers may be unable to carry out local inspections in light of travel restrictions imposed by their companies.
On 11 March, draft legislation No. 890/2020 was presented before the Senate in order to provide mandatory life insurance coverage for deaths resulting from epidemics or pandemics. Currently, the insurance regulatory agency in Brazil (SUSEP) permits insurance companies to exclude such claims as long as the epidemics or pandemics has been declared as such by the competent authority.
On 13 March, the National Supplementary Health Agency (ANS) approved the inclusion of the Coronavirus test in the list of mandatory coverage for beneficiaries of health plans (Resolution No. 453). The test will be covered in cases where there is a medical indication to test, according to protocols and guidelines defined by the Ministry of Health.
On 20 March, the President issued the Decree No. 10.282/2020, including the insurance industry amongst essential and indispensable activities, but which must adopt measures to prevent the transmission of the virus in such a way as not to interrupt its activities.
(Marcia Cicarelli – Demarest)
On 19 March 2020, the government declared a State of Catastrophe, permitting the establishment of health barriers, the limitation of free movement, the declaration of a curfew, and the making available of extraordinary resources for health needs, as well as emergency coordination measures and the progressive introduction of quarantine into the population.
With respect to judicial proceedings, in Chile the first instance Courts (labour, civil, criminal and traffic) continue “business as usual” on a digital basis, adopting measures to avoid large groups of people (suspension of hearings). As for the Court of Appeals and Supreme Court, both are limiting their work to “essential matters” such as criminal, labour, constitutional rights, whilst the remaining matters have been suspended. To the above extent, the courts are working as usual despite the current scenario.
In relation to arbitrations, these procedures have followed their normal course by digital means, although avoiding the holding of hearings and other face-to-face actions.
In respect of the insurance sector, the local companies and adjusters have implemented remote working and continue to undertake their business as usual. That said, adjusters are encountering difficulties visiting locations due to the curfews and/or quarantines though they continue to work in the respective lines of business.
The authorities have not adopted measures impacting directly upon insurance coverage. However, Congress is currently reviewing the effects of the emergency on ongoing litigation as part of which a discussion is currently taking place regarding a special prorogation of the applicable statute of limitations in the different legal matters.
From 23 March 2020, with the aim of containing the spread of the virus, the President of the Republic ordered, by decree, a mandatory preventative isolation throughout the national territory, initially for a period of 19 days, until the 13th of April 2020.
Cases of force majeure and others are among the 34 exceptions to the isolation measures, while the claims management of insurance and reinsurance companies are to be carried out by digital means, including the services of adjusters and experts.
The Superior Council of the Judiciary reported that in all judicial processes the time limits were prorogued, that is to say, the process of legal proceedings and all judicial time limits ordered in those proceedings were suspended, from 15 March 2020 until 12 of April 2020.
This measure does not apply to hearings in criminal proceedings to legalise arrests and any decision related with the freedom of the citizens (i.e. release from prisons).
The Office of the Comptroller General of the Republic suspended time limits within the Fiscal Responsibility Processes from March 16, 2020 until March 31, 2020.
On 31 March 2020 the President declared a national health emergency, following which the Ministry of Health published a decree establishing the mandatory suspension of all non-essential activities until 30 April 2020.
The insurance industry is considered an essential activity, being part of the financial sector, and all entities involved (insurers, brokers, reinsurers, adjusters and so forth) will continue to work remotely as far as possible. Furthermore, all COVID-19 claims will have priority in their analysis.
All civil and commercial courts are closed, including the nation's Supreme Court of Justice, Federal and State Courts. Procedural terms are suspended in all halted cases, and limitation periods cannot expire during the suspension. No new lawsuits may currently be filed before the courts.
Regarding all activities subject to the control of the National Insurance and Surety Commission (CNSF), the following applies:
a. Extensions are granted to all statutory periods, allowing insurance companies the time and resources to resolve and adjust all COVID-19 claims.
b. The CNSF has "invited" all insurance companies to cover any COVID-19 claim, even if excluded. In this context, such payments will not be considered ex gratia.
c. Notwithstanding the foregoing, the CNSF has indicated that it will respect the insurer's decision in case of rejecting a claim.
As of 15 March 2020, a mandatory quarantine was declared throughout the country, a measure that has been extended until 12 April 2020. As an additional precaution, a curfew has been ordered from 20:00 to 05:00.
On 11 March 2020, the activities of the judiciary were suspended. To this extent, the judicial processes are paralysed until the point when the mandatory quarantine is lifted. The primary arbitration institutions, such as the Lima Chamber of Commerce, have also suspended their activities and all arbitration time limits. That said, insofar as it is possible and there is an agreement between the parties and the tribunal, it has been indicated that virtual arbitration proceedings may continue.
On 16 March 2020, the SBS ordered a national suspension of the time limits for the handling of claims, such as the notice period for the claim, the term for the appointment of adjusters, the deadline for the adjuster to issue its final report, the and the deadline for the insurer to issue its pronouncement on the question of coverage. Notwithstanding this, it is established that this should not affect as a priority the payment of claims and in particular those under medical insurance, health or life products.
Various insurers have stated that their health policies will cover COVID-19. However, given the public health emergency, the Ministry of Health will establish measures and protocols providing for the hospitalisation of patients in public hospitals adapted for the purpose.
In relation to life policies, by contrast, insurers have not reached agreement, though at least two of the main insurance companies in Peru have stated that their policies will cover deaths as a result of COVID -19.
Finally, in relation to property insurance and in particular the coverage of loss of profit or business interruption, they would not be activated to the extent that the said interruption was in consequence of a governmental act excluded in the policy.
(Pedro Richter – Torres Carpio Portocarrero & Richter)
In the coming days we will circulate a further review of the impact that COVID-19 will have on the insurance and reinsurance market, and the way in which the main policies may be affected.
