Changes in Cuba: Facts or Fiction?

cuba flag-2526259_1280

On 13 July 2019, the Cuban Parliament approved the new Electoral Law, restricting, for the first time in nearly 60 years, the presidency to a five-year term in office and a maximum of two consecutive terms. This new law also creates the figure of the President, to be elected by the National Assembly and not by direct vote of the people.

This new act constitutes the first legal provision issued after the amendments made on 22 July 2018, when Cuba’s National Assembly unanimously approved the issuing of a new constitution. These amendments are the result of open discussions held during the second half of 2018, where Cuban citizens were given the opportunity to express their opinions and suggest “changes” to the initial proposal. This exercise culminated in a constitutional referendum that took place on 24 February 2019, where 7.8 million (90.15%) exercised their right to vote with 86.85% voting in favor of the amendments.

Although most of the proposed amendments are still in the process of being drafted for later implementation, the new modifications, if implemented, would allow a “free market economy” yet keep the Communist Party in control of the economy and of the state. A division of power at the top of government is also proposed, aimed at guaranteeing the preservation of the socialist system in a post-Castro era.

Although Raul Castro handed power over to Miguel Díaz-Canel, who was instituted Prime Minister in April 2018, Castro will remain head of the Communist Party until 2021, although actually he has indicated his willingness to go after that. As Raul also heads the constitutional reform commission, it is clear that he will have control of the ship at least until then.

The new Constitution also creates the position of Prime Minister and designates the President of the Assembly as head of state, Cuba’s highest executive body. Nevertheless, the President will not be in charge of the Council of Ministers, which would be supervised by the Prime Minister as it has been up to now. As of today, Díaz-Canel is acting as both, President and Prime Minister, until the election of the President be held next October and that of the Primer Minister before the end of this year. The position of the President will be chosen by the National Assembly — it is expected to be Díaz-Canel —, while the Prime Minister will be appointed by the President and ratified later by the National Assembly.

Under the new Constitution free health care and education to all Cuban citizens continue to be guaranteed. However, some services, such as aesthetic procedures, as are excluded in almost all insurance policies worldwide, will not be covered. It would be the first time that Cuban hospitals will charge Cubans for medical services. As it is now the case, tourists will continue to need a mandatory medical insurance policy — which needs to be issued by a foreign insurance company authorized by Cuban entities  — to be allowed entrance to Cuba.

A year since the Trump administration banned all commercial and financial transactions with 180 Cuban companies (mainly linked to the Cuban Armed Forces), the list has grown to 220 companies as of today . Whilst entering a phase of gradual political transition, Cuba will continue to lack access to US reinsurers to protect risks. For more info about reinsurance issues in Cuba, please refer to the following links:

https://www.kennedyslaw.com/thought-leadership/article/cuba-a-newly-emerging-market/;

https://www.kennedyslaw.com/thought-leadership/article/cuba-sanctions/.

 

[1] http://www.cuba-hostels.com/health-insurance-policy-for-traveling-to-cuba/list-of-recognized-insurance-companies-in-cuba/

[2] https://www.state.gov/cuba-sanctions/cuba-restricted-list/list-of-restricted-entities-and-subentities-associated-with-cuba-as-of-april-24-2019/

Authors: Alex Guillamont, Head of Latin America and Caribbean at Kennedys and Daniel Padrón, Associate at Kennedys’ regional hub in Miami.

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Kennedys Miami office is hiring!

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Due to Kennedys growth, the office in Miami has 3 new role openings: Finance Manager; Marketing and Business Development Assistant; and Legal Secretary. If you find any of these positions suitable to your professional profile please send an email with your resume and Cover Letter to Anna Weiss: anna.weiss@kennedyslaw.com

1. Finance Manager (Full time)

Kennedys is looking to recruit a Regional Finance Manager to join our Miami office.  The Finance Manager would have responsibility for coordination and oversight of the finance activities of the LatAm region and offices. Close liaison with LatAm offices and partners and UK Senior Finance Managers is essential.

This is a strategic, yet hands on, role which provides a key support to the Managing Partner LatAm and ensures day to day delivery of the finance service across the offices within the region.

Responsibilities will include, but are not limited to:
• Ensure that the offices carry out the required finance tasks across the month and at the month end. Depending on the local office, this may include including, general ledger posting, accounts receivable, accounts payable, disbursement payments, credit card and merchant facilities, staff claims and credit control
• Coordinate and manage the year-end audit and reviews. Communicate with external accountants and auditors in order to comply with statutory, regulatory and professional requirements and manage the process of regulatory and financial end of year audits.
• Work with the local office staff to ensure that each office meets its statutory and regulatory obligations in respect of financial and tax filing.

What are we looking for?
• Experience in a similar role for a professional services firm
• Knowledge of relevant accounting legislation and legal requirements
• Ideally hold a professional finance qualification but demonstrable relevant experience could be considered instead
• Must be bilingual (English and Spanish) ideally have Portuguese but not a requirement
• Willing to travel

2. Marketing and Business Development Assistant (Part time)

The Marketing and Business Development Assistant is responsible for providing support to Business Development Manager for the Latin American and Caribbean region and assisting with various assignments across the marketing, business development and communications functions. This position requires collaboration and coordination with members of the Marketing and BD Department in London as well as other departments within the firm. This individual maintains professionalism and strict confidentiality in all client and firm matters.

Essential duties and responsibilities will include, but are not limited to:
• Provide support services on project assignments utilizing Word, Excel and PowerPoint, as well as, any additional software required. E.g. InterAction.
• Assist the BD Manager with RFIs, RFPs, information, presentations, approvals, events, marketing materials, follow ups, etc.
• Draft alerts, emails, social media posts and blog posts as assigned
• Social media and blog posting.
• Edit/proofread alerts, emails, attorney presentations and other marketing communications.
• Processing invoices for payment.
• Make travel arrangements and bookings for events, help with itineraries and agendas.  Answer calls, manage calendar and respond to inquiries.
• Create and maintain the Marketing and BD reference materials including contact lists, organizational charts, digital files, etc.
• Provide support for meetings, including scheduling, agenda distribution, content preparation and minutes, if necessary.
• Research and coordinate materials and negotiate pricing with vendors as requested.
• Research on clients and markets as requested.
• Keep regional offices’ website pages and attorney bios updated.
• Complete data entry and other administrative tasks.
• Additional administrative support and ad hoc reporting as required.
• Other duties may be requested and/or assigned.

Knowledge, Skills and Abilities
• Bachelor’s degree and one or more years of experience in a professional services firm is preferred; or equivalent combination of education and experience. Prior experience working in marketing and/or communications is preferred. High school diploma required.
• Past work experience as a marketing coordinator, administrative assistant or similar role is a plus.
• Proficiency with Microsoft Office Suite (Word, Excel, and PowerPoint) is required. Design software is a plus.
• Experience blogging on WordPress or other web platforms a plus.
• Excellent interpersonal, verbal, and written communication skills. Ability to communicate with courtesy and diplomacy, efficiently follow written and verbal instructions, provide information, and maintain effective relationships with a diverse group of attorneys, clients, staff, interns, and outside contacts.
• Excellent organizational skills including record keeping, data collection, and system information. Ability to compile and analyze data and furnish information in report format, written correspondence, e-mail or verbally.
• Excellent analytical and technical skills requiring an aptitude for detail and accuracy in order to perform essential duties relevant to the Marketing & BD functions.
• Exhibit high degree of initiative in managing multiple priorities simultaneously in a fast-paced, deadline-driven, detail-oriented work environment utilizing good judgment, and decision-making skills. Proactive with excellent troubleshooting, problem resolution, and follow-through skills.
• Dependable team player who works collaboratively and cooperatively with others in a team-oriented environment. Ability to act independently and make decisions within scope of the position’s responsibilities.
• Possess excellent knowledge of reading, writing, grammar, spelling, punctuation, proofreading, and formatting in order to prepare relevant documentation; proofread material for grammatical, typographical, and spelling errors.
• Ability to operate standard office equipment including computer, printer, telephone, photocopier, scanner, etc.
• Work well under pressure with short deadlines.
• Project and event management skills.
• Bilingual, English and Spanish, a must. Portuguese a plus.
3. Legal Secretary (Full time)

Kennedys is looking to recruit a full-time Legal Secretary with 5 to 7 years’ litigation experience to join its Miami office.

The ideal candidate is proficient with the Microsoft Office Suite (advanced Word, Excel and Outlook) and has some experience with insurance coverage litigation.  The Legal Assistant will possess excellent organizational skills and have a keen attention to detail.

The ability to turn work around in an efficient manner with minimal errors is required. Effective communication skills and ability to manage assignments with a proactive approach are also necessary for this position. Our ideal candidate will assist attorneys with all aspects of litigation including discovery, court filings and trial preparation.
The successful Legal Assistant will have a thorough working knowledge of and experience working with the Federal and Florida court systems.
If you have these skills and are interested in joining a dynamic team and work community, we encourage you to apply.

About Kennedys
Kennedys is a global law firm with expertise in dispute resolution and advisory services. With over 2,000 people worldwide across 38 offices in the UK, Europe, Middle East, Asia Pacific and America we have some of the most respected legal minds in their field.
Our lawyers handle both contentious and non-contentious matters, and provide a range of specialist legal services, for many industry sectors but we have particular expertise in litigation and dispute resolution, especially in defending insurance and liability claims.
We welcome high-performing lawyers, business services professionals, secretaries, graduates and apprentices to join our rapidly expanding global firm. Whatever your role at Kennedys, you’ll be involved in exciting and stimulating work, where your input will make a difference.
What do we have to offer?
We’re a fresh-thinking firm, and we’re not afraid to bring challenging new perspectives to the table way beyond the traditional realm of legal services. We empower our clients with a diverse range of ideas, tools and technology to make their lives easier, as well as delivering exceptional results, every time.
We develop careers in an innovative and collaborative global environment, with a variety of training opportunities available.  This includes secondment opportunities to clients and our global offices.   We believe that supporting individual growth and development puts us in the best position to attract and retain talented individuals. Regardless of role or level, everyone has access to virtual learning opportunities to help you develop your skills when you need to, wherever you are in the world.

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Save the date: 2020 Miami Latin American Claims (Re)Insurance Forum

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Kennedys and QLDG are pleased to announce the dates of the 2020 Miami Latin American Claims (Re)Insurance Forum, the event of choice for the insurance industry in the region where key industry experts gather and analyze relevant underwriting and claims issues, trends, and developments in Latin America & the Caribbean.

As every year, topics and case studies are carefully chosen based on current affairs and the feedback received from the market. For this upcoming edition, in addition to the highly rated panels with regional and local market leaders, topics for debate will include:

• Cyber
• D&O / BBB
• BI (property / energy)
• Marine
• Surety / Construction
• Efficiency of innovative underwriting/claims tools
• Difficult legal issues such as moral damage and limitation.

Certain Risk Managers will be invited again this year to join and enrich the sessions.

The Forum presents an excellent opportunity for networking with top industry professionals. In the past edition, we had 220 participants and more than 30 (re)insurance carriers from Europe, Latin America, and the US.

Don´t forget to mark your calendar:  June 16th – 19th 2020

Where: Four Seasons Hotel Miami – 1435 Brickell Ave. Miami, FL 33131

More information and registration details to come.
Contacts:
Juan E. Lopez-Santini: jlopez@qldg.com
Alex Guillamont: alex.guillamont@kennedyslaw.com
Hilda Welcker: hilda.welcker@kennedyslaw.com 

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Highlights of the 2019 Miami Latin American Claims (Re)Insurance Forum

Miami Palm Trees low res

The fifth annual Miami Latin American Claims (Re)Insurance Forum, hosted by Kennedys and QLDG in June 2019, was a resounding success. The 2020 forum will take place on June 16th –19th 2020 and details will be announced soon.

The 2019 edition was attended by in excess of 215 delegates from around the globe.  The mix of delegates included as many as 45 industry-leading speakers from companies, including AGCS, AIG, AXA-XL, Axis Capital, Beazley, Brit, Chubb, Continental Seguros, Everest Re, FM Global, Generali, Hannover Re, Helvetia, Hiscox MGA, IRB Brasil Re, Liberty, Munich Re, Pacífico, Partner Re, R+V De, Rimac, SBS Seguros, Scor, Starr, StarStone, SURA, Swiss Re, Trans Re, Travelers, Validus Re, and Zurich.
For details, you can check the 2019 Forum’s program here.

The 2019 Forum kicked off with the Regional Market Leaders Outlook Panel, always an audience favorite,  where the most relevant issues affecting the (re)insurance industry over the last year as well as pertinent topics for the near future were discussed. This year the panel engaged in a lively discussion on inclusion and diversity in leadership, China’s growing influence in Latin America, the future market impact of Venezuela, and the London market’s role in Latin America in light of a global hardening market.

After a productive coffee break, a session on the Contraloría of Colombia’s recent decisions on claims-made policies and how these decisions affect financial lines policies followed. The panel discussed the recent increase in Securities Class Actions originating from Latin America, the Lava Jato investigation’s role in the increase, the legal basis behind these class actions, and how underwriters are adapting their pricing models to account for this new risk.

The first day of the Forum closed with two very interesting panels. The first was on Regional Issues with BI in the specific context of mining and energy losses and the second one, completely dedicated to Brazil presented coverage success stories in property losses.

Day 2 of the Forum opened with another innovation by its organizers. For the first time, the Forum gathered Local Market Leaders to provide their insight on the most trending issues affecting their particular markets where the panelists led an engaging discussion on market penetration, a hardening market, the role technology will play in adding value to the (re)insurance business, and the role of parametric insurance in the future.

This was followed by a panel discussing the legal issues commonly found when dealing with claims in Latin America and, particularly, in specific jurisdictions such as Argentina, Brazil, Colombia, Mexico and Venezuela. The session started explaining the effects of inflation on the adjusting process of claims and the insured amounts when dealing with claims in jurisdictions with high inflation rates and hyperinflation. Then, the application of judicial interest, legal interest, and inflation in Brazil, Colombia and Mexico and how these calculations can increase a claimed amount when in litigation. The panel further discussed the repercussions of the OFAC sanctions when making payments of claims to individuals that may be included in the Specially Designated Nationals Lists and the compliance and due diligence a company must carry out in order to avoid any breach to the OFAC sanctions and how the OFAC sanctions may affect underwriting business in risky jurisdictions. The session ended with an overview on the regulatory changes expected in the region and how they would affect the insurance industry, if passed.

We then moved to an extremely interesting panel on cyber (re)insurance. It opened with an overview of the latest developments in technology in the past year, focusing in on machine learning and autonomous vehicles. They also discussed on how the (re)insurance industry should better prepare themselves for cyber risks, how to manage property risks in the cyber era and the dangerous of Silent Cyber. This conversation transitioned to a perspective on social engineering and how losses stemming from it may fall under the cover of a BBB policy.

Day 2 closed with mock mediation on environmental liability. The mock mediation related to a claim emanating from an oil pipeline spill caused by illegal tapping by the fictional Olive Oil (insured), helped explain the benefits of mediation as a method of dispute resolution.

We wrapped up the Forum with a final day of two panels discussing construction risks in LATAM. A hypothetical Building Information Model (BIM) of a tunnel project in Peru showed how BIM could be used both at the earliest stages of construction, thus saving time and money and minimizing risk and how Loss Information Modelling (LIM), a technology developed by JS Held, could be used to analyze claims. It was fantastic to see the use of BIM to access disaster sites, which would have otherwise been impossible to access. Given that BIM will become compulsory on large construction projects in Brazil in the near future, it led to a very lively debate amongst the panelists and the delegates. The panel also highlighted the important distinction between “a defect” and “defective design,” which included, amongst many laughs, a broken glass and a bag of toilet roll. Having set the stage, the BIM model came alive with a hypothetical tunnel claim that the panelists used to discuss the important, but often, misunderstood concepts of defective design, exclusion clauses, and specific challenges encountered on tunnel projects.

The final panel used the same hypothetical case study of the tunnel in Peru and allowed an adjuster to discuss the importance of considering when the loss arises—whether during construction, the maintenance period, or in the operational phase of the project—and how different policies would respond accordingly. This is an issue regularly seen in LATAM as there is often a lack of clarity in policy language on when one phase ends and another one begins. This fed in nicely to a discussion with forensic accountants who considered how they would calculate a Delay in Start-Up claim and how BIM may help with this. The lively session, accompanied by a hard hat worn by the panelists to symbolize that they were speaking as a “risk manager,” rounded off the Forum nicely with a case study considered from beginning, middle, and end.

After hearing all the engaging panels, the future of the industry in Latin America looks positive and with lots of opportunities. The number of companies attending the Forum has been increasing through the years, in 2019 we had a record of companies attending and we expect it to continue growing. 2020 Miami Claims (Re)Insurance Forum will be held at the Four Seasons hotel in Brickell from June 16th to June 19th 2020. Topics and registration details will be announced soon.

Authors: Alex Guillamont, Head of Latin America and Caribbean and Javier Vijil, Associate at Kennedys.

 

 

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Upcoming panel discussion in Miami on September 12th: To what extent can technology reduce risks in construction projects in US and Latin America?

SCL flyer Sept 12 event

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Upcoming Women in (Re)Insurance event in Miami on August 27th 2019

women in reins aug 2019

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An overview of cyber legislation in Latin America

Computer source code programmer script developer.

A year ago, the Governor of California signed the California Consumer Privacy Act of 2018 into law. Known as the first comprehensive privacy regime in the United States, the Act imposes on businesses significant privacy obligations, creates a number of privacy rights, and provides for enforcement both through private right of action and regulatory enforcement.

Just a few weeks earlier, on 25 May 2018, the European Union’s General Data Protection Regulation (GDPR) became enforceable. Under the GDPR, which aims to give European citizens and residents control over their personal data and to simplify the regulatory environment, a processor of personal data, amongst other obligations, must clearly disclose any data collection, declare the lawful basis and purpose for data processing, and state how long data is being retained and if it is being shared with any third parties or outside of the EU.

These landmark pieces of legislation are indicative of a growing concern, around the world, for one’s personal information, who has access to it, and how it is protected. The widespread outrage to recent data protection scandals such as Cambridge Analytica, which compromised the data of millions of Facebook users in the US, Europe, and the UK, further punctuate this concern.

This preoccupation with personal data security has extended to Latin America, where legislation is emerging to address these concerns. In 2016, the Inter-American Development Bank issued a report putting the cost of cybercrime in Latin America at approximately US$90 billion per year. The report also found that the region in general suffers from a low level of public awareness when it comes to cybercrime and data security; furthermore, many jurisdictions have no legislation in place to force private firms to disclose if they have been victim to cyber-attacks.

The purpose of this article is to provide an overview of the current legislative framework in the region, focusing on the region’s biggest jurisdictions. We will focus on the following key questions:
1 Who are the data protection authorities?
2 Is data breach a defined, legal term?
3 What are the data breach notification requirements, if any?

Argentina

Per the Ley de Protección de Datos Personales (Ley 25.326/2000), the relevant data protection authority in Argentina is the Dirección Nacional de Protección de Datos Personales.

While Argentinian legislation does not define data breach per se, there are several examples of breaches detailed and regulated in the law. Data breaches are also further categorized as light breach, serious breach, and very serious breach.

In terms of notification requirements, there is no requirement to notify the data owner of a personal data breach. However, current legislation is being proposed to make it obligatory to notify both the Dirección Nacional de Protección de Datos Personales and the owner of the compromised data.

Brazil

On 14 August 2018, the Brazilian Congress passed a bill related to personal data protection and its corresponding law, Law 13.709, was subsequently approved. This law is enforceable 18 months after its approval—February 2020.

Taking lessons from the GDPR, the law defines personal data, sensitive personal data, anonymous data, database, owner of the data; controller; operator (processor), etc. However, some provisions must be complemented by additional laws/regulations that are still in their early stages of growth. For example, the breach report communication and the methodology of the administrative sanctions require further regulations.

Regarding the relevant data protection authority, the original text of the bill established the creation of a specific authority, reporting to the Ministry of Justice. However, the Brazilian President removed this provision from the final wording of the law. Until it is determined whether a specific regulatory agency or administrative body will be created, the Brazilian Public Prosecutor, the Ministry of Justice and the Consumer Protection Authorities are the entities responsible for commencing/conducting any proceedings concerning the breach of Law 13.709.

While Law 13.709 does not define personal data breach specifically, it defines personal data as information related to a person’s identity and further defines sensitive personal data as information related to a person’s race or ethnicity, religious convictions, political opinions, health and sexual life, and genetic or biometric data.

Finally, in the case of a data breach, the data controller must report the incident to both the relevant authorities and the affected individual. The communication must be made within a reasonable time and must at least inform: i) the personal data affected by the breach; ii) a description of the technical and security processes used to protect the personal data; iii) the risks concerning the breach; and iv) the steps adopted to mitigate the breach.

Chile

Chile’s Law 19.628/2011 establishes some data privacy regulations; however, this law applies only to public entities. While the Council for Transparency handles compliance with Law 19.628, there is no regulatory authority that monitors compliance with data privacy laws by the private sector.

Law 19.628 does not define data breach; however, it defines personal data as information relating to a natural person’s identity. It further defines sensitive data as personal data that refers to a natural person’s physical or moral characteristics or facts or circumstances of their private or intimate life, such as data relating to a person’s habits, race, ideologies, political opinions, religious beliefs, physical and mental health, and sexual life.

In terms of notification requirements, there is no requirement to notify the data owner of a personal data breach.

Colombia

Per Colombia’s Law 1581/2012, the Superintendencia de Industria y Comércio is the relevant data protection authority. However, with respect to financial data and financial entities, the relevant authority is the Superintendencia Financiera.

While Law 1581/2012 does not establish a legal definition of data breach itself, there are established principles and obligations that should be followed in order to avoid allegations of non-compliance with Law 1581/2012.

Notification of a data breach should be addressed to the Superintendencia de Industria y Comercio, but there is no obligation to notify the data owner.

Mexico

Mexico’s Ley Federal de Protección de Datos Personales en Posesión de Particulares (LFPDPPP), passed in 2010, establishes the Instituto Nacional de Transparencia, Acceso a la Información y Protección de Datos Personales as Mexico’s data protection authority.

Mexico is one of the few countries in Latin America that has a specific legal definition for data breach: “any damage, theft, loss, alteration, modification, destruction or unauthorized use, copy, access or processing of personal data” (Article 63 of the LFPDPPP).

Mexico is also one of the few countries that requires owners of data that has been compromised to be notified of such. The LFPDPPP requires that “any breach that significantly damages pecuniary or non-pecuniary rights must be notified to the owners of the data immediately, once the data holder/controller confirms the breach and takes actions to begin an exhaustive investigation process to determine the breach’s magnitude, so that the data owners can take measures accordingly” (Article 20 of the LFPDPPP). The notification must inform: i) The nature of the breach; ii) the compromised personal data; iii) recommended measures to protect the data owner’s interests; iv) the corrective measures that immediately took place; and v) the means by which the owner of the data can get more information on the breach (Article 65 of the LFPDPPP).

Peru

We conclude our journey through the region’s legislative framework in Peru. Law 29733/2013 establishes the Autoridad Nacional de Proteccion de Datos Personales, a part of the Ministry of Justice, as the data protection regulator.

Law 29733 does not define data breach; however, non-performance of the principle and obligations established under Law 29733 is considered a breach per se.

In terms of notification requirements, there is no requirement to notify the data owner of a personal data breach.

Conclusion

As can be seen from our legislative overview, while cybersecurity and data privacy legislation is still nascent in Latin America, concern and interest is growing. As has usually been the case in the past, and as demonstrated by Brazil, we believe those jurisdictions whose current legislation is lacking will quickly take cues from the GDPR, cybersecurity legislation in the United States, and more sophisticated jurisdictions in Latin America. Development will be quick; and with development comes risk that will have to be properly addressed by (re)insurance carriers throughout the region.

Authors: Alex Guillamont, Head of Latin America and Caribbean at Kennedys and Javier Vijil, Associate at Kennedys’ regional hub in Miami.

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