The current issue consists on identifying the effectiveness of insertion of clauses of mediation in contract of insurance and reinsurance in corporate law and consumer law, exclusively in private mediation.
The contract of insurance is formalized by legal tools which are the basis that the parties use to organize and relate in an ordained form and inside a series of positive rules according to the clauses of a contract, with the awareness of risk of the event previously stated and determined.
The sustainability generated by a contract depends on various factors, such as the formation of a balanced regulation between the parties, respect to the principles of contracts, but especially the election and the writing of the clauses which translate the effective interests of the parties and safeguard them until the end of the contractual tie.
In the initial phase, if the parties get to negotiate consciously and strategically the contractual norms which will rule that relationship, in case of a conflict, why do these parties not react in a more mature and rational way to create preventive and subsequent mechanisms targeting a better resolution of the situation?
This is a question to be faced nowadays, with the launch of the New Civil Procedural Code in Brazil, and especially with the pass of the Mediation Law(Law nº 13.140/2015), the parties in a contract can no longer ignore the previous or ultimate choice on the method to be applied before potential breach of contract.
The personal interest of a party, specifically in an insurance or reinsurance contract, is guaranteed by the insurance policy and the latter cannot impose itself upon the interest of the insured group which solely confirms due to the mutuality in this kind of contract.
The impossibility to impose the interest in the field of insurance is set in the pillar of mediation: the harmonization of the interests between the parties in conflict as to guarantee the balance in their relationship.
Mediation, in every sense, is an increment in contracts of insurance. In fact, this mechanism is the only tool which is able to achieve both internal and external interests in the relationship, for it is going to achieve the interest of the parties, without nullifying or undermining the interest of the insured group, which is essential in respect to the principle of mutualism. In case of a direct negotiation, the objective only aims to guarantee the structure between the parties, excluding the mutualism; this exclusion destroys the contract of insurance, because it might spare more money to satisfy the interest of only one insured party, compromising the mutual fund. In the future, this might become the weapon to the same insured party (in case of another accident), or even for the other insured parties.
The mutualism is a fundamental principle of the technical operation of insurance and thus, when the insurance contract becomes the main legal technical operation, aims to both protect the mutualism by the clauses which identify the coverage and the risk exclusion of payment of the insurance damages, for instance.
The mutuality of the risks insured that will share the reserve and the damages from the materialization of the event must be balanced as to make use of the resources for the accidents which truly possess insurance coverage. The payment without a cause in this condition is against all contractual system in this kind of contract generating breach of the fund, depending on the amount paid without clause specially destined to this purpose.
In the event of payment without a clause is worsen by the current structure of the Judicial Power, as to excessively prestige the Consumer Code by practically nullifying the insurance contract.
Such legal insecurity of the judicial rulings in Brazil – for we do not have a system which follows strictly the precedents, as in the United States, signal an opportunity for the insurer and the reinsurer to choose the private mediation process due to the fact that this extrajudicial process is done by a mediator, brightly and fundamentally, chosen by the lawyers of the parties in an insurance contract. This will guarantee that the conflict will not result in an antagonistic decision, since the construction of the consensus is born and improves within each and every interest, preserving the limits and rights of every individual.
In mediation, the search of the interest of the insured will be obtained in the effective participation of the parties who, after adhering to the mediation process, will be led to see the exact angle of the presented situation. In this journey, their lawyer plays an important role, as the lighthouse to guide them within the limit of their rights and, also, what strategy to be adopted in a collaborative process – as the mediation.
All in all, the social function of the insurance contract is to guarantee the damages of the protected interest. It cannot be an instrument to cause a patrimony increase to the insured due to the event of accident, limiting the contractual freedom when it comes to the amount of the insurance. Therefore, the affirmation that the law of precedents on the amount of the policy might be considered as the limit of the amount of the coverage. The amount of the damages, in case of accident, can be inferior, only if correspondent to the amount of the interest, according to damages principle1.
It is important to highlight that the guarantee of the interest of the insured2 finds their space of mastery in the contract of insurance and reinsurance, as it is possible to institute the process of mediation, even if there is no previous and express clause in the contract which resulted in the conflict3.
In the modern contractual law, it is recognized, beyond the existence of interrupted contracts, the existence of relational contracts in which the clauses set in the instrument do not exhaust the range of rights and duties of the parties. In case there is no exhaustion (after a contract breach), it is possible, within the rights of the parties, the institution of mediation, as the autonomy and prominence of the parties are determined factors for its institution.
From the moment of its institution and effective adhesion of the parties to the process of mediation, the parties of the insurance market acquire the following advantages to submit their conflicts to this collaborative process:
(i) Structured proceeding which allow the parties to use their rights in accordance with their requirements and strategy and within an approximate duration;
(ii) Dynamic proceeding which enables a strictly confidential environment, with the possibility of hiring experts in the same or even different fields, in case the conflict involves issues of this nature;
(iii) the mutual construction by the parties of a new vision of the conflict existing solely in the process of mediation, transforming the pace of the parties in the interface between them;
(iv) the evaluation of the risk conducted by the mediator leads the parties to identify the best alternative for an agreement (BATNA) or the worst(WATNA) present in that lawsuit; this is a paramount discovery for the making of decisions;
(v) cost reduction for the parties, after participating in a dynamic and agile process, such as mediation, leads to a lower financial impact on the fees to the mediators, lawyers, potential experts, costs, etc;
(vi) absence of impact on PSL (Provision of Accidents to be Liquidated) of the insurer: if the risks and limits of each party are estimated during the process of mediation, the insurer will make the accounting of the amount, which will rapidly be available through the signing of the agreement (totally or partially);
(vii) the solution of the range of interpretation of the clauses of arbitration, eventually inserted in the contracts of insurance or reinsurance which allegation of the insured who did not adhere to such clause, taking the insurer and reinsurers to the Judiciary Power to first discuss the effectiveness of the clause.
That doubt about the applicability of the arbitration clause to be discussed in the Brazilian Court (or in national chambers and/or international chambers), was exactly the core of the conflict that raised in the Case Jirau4solved in Brazil and addressed for decision before the Arbitration Court of ARIAS in England, specialized in insurance.
This case reaffirms all the benefits mentioned above and demonstrates the differential of the process of mediation applied to the contract of insurance and reinsurance. The battle between the construction companies and the insurance companies of hydroelectric plant of Jirau ended, after a process of extrajudicial mediation, with the withdrawal of various judicial measures in Brazil through the payment of R$ 100.000.000,00 (one hundred million Reais) paid by the insurance and reinsurance companies of the plant, after partial agreement in which they all accepted to submit the conflict to the Arbitration Court of ARIAS in England. That is exactly what happened!
To sum up, the mediation, even if instituted after a conflict in a contract of insurance or reinsurance, affects the interest of all the parties in a conflict, enabling the compliance of the isolated and initial positions of each party, considering that this method of resolution of conflict presents the same guarantee in the mutualism of these kinds of contracts: the harmonization of the interest of the parties with the safeguard of its internal and external social function.
1(STJ, REsp 161.907/MF, 3 T. J. 16.03.1999, real.Min CARLOS Alberto Menezes). Also that the amount of the policy corresponds to the maximum of the coverage guaranteed by the insurer (STJ, REsp 34.546/SP, 4 T., j. 26.04.1999, rel. Min. Barros Monteiro; REsp 236.034/RJ, 2 Section, j. 10.10.2001, rel. Min Nancy Andrighi).
2 BIGOT. JEAN. "Traite de Doritos deus assurances". PAris: LGDJ, 2002. T. 3. Lêcontratd'assurance, p. 30
3 STJ REsp 1.073.595/MF, 2 Section, j. 23.03.2011, rel. Min. Nancy Andrighi, DJe 29.04.2011
4The process issued in January 2012 and ran in the 6th Chamber of Private Law of São Paulo State Court. ESBR together with Camargo Corrêa and Enesa Engenharia are defendants in the lawsuit was issued by the plaintiffs Zurich, SulAmérica, Allianz, Aliança do Brasil, Mapfre and Itaú Unibanco in England, who refused to pay damages to the constructors of the plant for damage in the construction site during a series of riots occurred in March 2011, and which would totalize nearly R$400 million in damages – it could have achieved R$1,4 billion if the incidents caused delays in the generation. In Brazil, the construction companies of hydroelectric power plants sought to reverse the decision of the process of arbitration issued by the insurance companies in England. The refusal of the process in Brazil does not interrupt the process of arbitration in the Arbitration Court of Arias, in London, which will still be decided. However, the expectation is that the case ends up with the same decision in England, i.e., the composition between the E the reasoning that the process was taken to a foreign country is that a part of the policy which deals with arbitration appoints the Arbitration Court of Arias, in case the parties do not reach an agreement on the amount to be paid. In April 2012, the 6th Chamber of Private Law of São Paulo State Court decided on a daily fee of R$400 thousand in case there was not a withdrawl of the process on the part of the insurance companies.According to State Court Justice Paulo Alcides Amaral Salles, the clause of arbitration “does not mean express acceptance of one of the parties. On the other hand, the English justice had decided that Enesa, Camargo Corrêa and ESBR would be prohibited to seek the Brazilian justice, under penalty of prison of their directors and interlocutors in the process.