Ernesto Tzirulnik has a PhD in law from the University of São Paulo (2014), and has been practising insurance law since 1981. In 1984 he founded Ernesto Tzirulnik – Advocacia, the oldest and most renowned Brazilian boutique insurance law firm. In 2000 Tzirulnik founded the Brazilian Institute of Insurance Law, a non-governmental organisation of which he is chair. He also coordinated the Commission of Jurists that prepared the first bill on insurance contracts in Brazilian history (Bill PLC 29).
What inspired you to pursue a legal career?
At first I was torn between architecture and law. What kept me in law was the fact that in this career, I felt it would be possible to intervene more broadly and proactively to try to overcome the social, economic and legal inequalities, and the colonial culture, that are characteristic of, and abysmal in, Brazil.
What qualities make for an effective insurance lawyer in today’s climate?
A good insurance lawyer behaves, at every moment, with awareness that they may be contributing to the social and economic effectiveness and the good image of insurance, and imposing a special ethic. Instead of defending corporate theses or exaggerated individualist biases, a good insurance lawyer should be aware that the excessive use of dogmatic legal arguments is an insidious way to commit illicit abuse. Discovering the principles that govern insurance as a social fact along with its techniques, and acting with ethics built from there and from the understanding that the system, especially a constitutional one, is sine qua non to succeed without guilt and to contribute to the development of the sector. The lawyer should not be a henchman of insurers and reinsurers, but a wise adviser. The insurance sector is full of false dogmas, revolving around half a dozen unintelligent sayings. This is notably so in these times, when immediate financial worries steal the scene from productive techniques and human reasoning. Another fundamental aspect is the freedom to go after the facts and understand them in their essence, instead of choosing cheap assumptions. To conquer the world, it is better not to go out blindly, but, rather, to know the paths of your own home and to be able to walk them with your eyes closed.
To what extent is the current regulatory framework in Brazil keeping up with the pace of technological innovation in the insurance sector?
Brazil still suffers from a lack of basic legal regime on insurance contracting. Without updates, it will be difficult to make progress. Unfortunately, companies in the sector have short-term vision, employing managers, without the proper training, to build intellectual and political leadership that is capable of seeking durable solutions instead of ephemeral result maps. Without basic rules or constructive interlocutors of the stable sociality of insurance, the state, through its insurance superintendence, continues to release standards like a balloon that flies without direction.
To what extent are you seeing consolidation in the insurance sector?
In Brazil, mass insurance distributed by financial institutions, with no real use for consumers, have occupied the negotiating space; a business of intermediaries that hypertrophy the costs of intermediation and commercialisation. Until a few years ago, insurance lawyers had many constructive experiences, but now absurdly conflicting experiences predominate. Life insurance, and large and medium-sized risk insurance, are undergoing a period of wide discredit. The most positive development for the sector’s image was the statement, made by life insurers with policies that exclude pandemics, publicly acknowledging the invalidity of these exclusions and reassuring their customers.
What long-term effects of the covid-19 pandemic do you foresee for the insurance industry?
The pandemic may be the biggest event in the recovery of the insurance sector’s image. Everything will depend on how economic agents, mainly reinsurers, deal with the issue. They can take the opportunity to review short-sighted concepts of accidents, to broadly reveal the usefulness of guarantees, or just to defend themselves against future claims with the use of specious wording of exclusion clauses.
What could governments and standard-setting bodies be doing to assist the insurance industry in relation to the covid-19 pandemic?
The insurance industry does not need public assistance of any kind to face covid-19. Perhaps some less solid agents may claim financial support, but that would be a remedy for symptoms created by the patient. Insurers themselves, with long-term policies, will suffer practically nothing. The privateers will improvise their ships by making water. The government urgently needs to stop seeing the insurance sector as a means of obtaining benefits, just as it needs to change the focus of its rules in order to truly protect and insure the insured and beneficiaries, by issuing clear rules that allow insurers and reinsurers to guide themselves with good governance in predictable and long-lasting routes.
How do you see your practice evolving in the next five years?
The number of contentious claims is increasing, and our practice will keep working to explore prevention measures, mediations and arbitration.
What advice would you give to younger lawyers?
I would not give young lawyers advice. I would ask them to be free, creative, zetetic and non-dogmatic for their own sake, and to always act for society – never for niches where they can temporarily make money and spend the rest of their life mulling over their shame and regrets, though having received medals and hypocritical praise.
Ernesto Tzirulnik is a “terrific lawyer” who is frequently retained in matters of contract issues and civil liability claims.
Ernesto Tzirulnik holds a Bachelor of Laws degree (LLB) from the Pontifical Catholic University of São Paulo (PUC-SP) and a PhD in economic law from the University of São Paulo (USP-SP). In 1984, he founded Ernesto Tzirulnik Advocacia (ETAD) – a law firm highly specialised in insurance and reinsurance, based in São Paulo with an office in Brasilia.
Ernesto Tzirulnik and ETAD have been ranked in band one of the Chambers Global and Chambers Latin America insurance sections since 2009. Ernesto is the founder and president of the Brazilian Institute of Insurance Law (IBDS) and coordinated the commission of jurists that drafted the proposition of the first Brazilian Insurance Contract Law, approved by the Chamber of Deputies at the the lower house of the National Congress of Brazil.
Ernesto is founder of Brazilian Institute of Consumer Defence (IDEC) and is a consultant member of the infrastructure special committee of the Brazilian Bar Association.
Ernesto has authored books and articles in specialised journals. His publishd titles include Construction Risks Insurance: Instrument for Development (Roncarati Editora, 2015); Insurance Contracts According to the Brazilian Civil Code (Roncarati Editora, 2016 – co-author); and Loss Adjustment: Legal Analysis (Max Limonad, 2001).
Ernesto specializes in insurance law. With over 38 years of experience in insurance-related disputes, he has represented agents across the market throughout his career.
The law firm Ernesto Tzirulnik Advocacia – ETAD, founded in 1984 and based in Sao Paulo, has been acknowledged as market leader in the insurance sector by national and international rankings over the years (Chambers and Partners Global and Latin America, Leaders League, WWL, Latin Lawyer, Legal 500, etc.). ETAD established an office in Brasília in 2019.
In 2000, Ernesto has founded the Brazilian Institute of Insurance Law – IBDS. He coordinated the law commission that drafted the first Brazilian Insurance Contract Law bill, approved by the lower house of Congress.
Ernesto has also participated in the creation of the Brazilian Institute of Consumer Defense (IDEC) and, since 2019, acts as consultant to the Brazilian Bar Association’s Infrastructure Special Committee.
Ernesto holds an LLB from the Pontifical Catholic University of Sao Paulo (PUC-SP) and a PhD in Economic Law from the University of Sao Paulo (USP). He has written extensively on insurance law and practice. Among his publications: Considerations about risk aggravation (2020), Insurance Contract according to the Brazilian Civil Code (2016), Construction Risks Insurance: Instrument for Development (2015), and Loss Adjustment: Legal Analysis (2001).