Archives: Arbitration

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New Case on Consolidation in Reinsurance Arbitrations

It’s pretty clear in most jurisdictions that the question of whether disputes under multiple reinsurance contracts should be consolidated is a question for the arbitrators and not the court.  What’s less clear is how the parties get an arbitration panel in place to address the consolidation issue. A California federal court recently addressed this issue.… Continue Reading

December 2018 Reinsurance Newsletter

In this edition of the Squire Patton Boggs Reinsurance Newsletter we cover two Second Circuit cases; one on functus officio and the other on a post-Global v. Century decision.  Other cases include state court cases on manifest disregard and functus officio and on whether an arbitration provision was enforceable.  Comments are welcomed.  Please click here to … Continue Reading

Second Circuit Affirms Exception to Functus Officio Rule in Arbitration

In 2017, we discussed a reinsurance case where the district court articulated an exception to the functus officio rule that allows for clarification of an arbitral award.  The Second Circuit has now affirmed that decision and joins the Third, Fifth, Sixth, Seventh and Ninth Circuits in allowing this exception.… Continue Reading

September 2018 Reinsurance Newsletter

The Squire Patton Boggs September 2018 Reinsurance Newsletter is now available here.  This quarter’s newsletter discusses the recent Second Circuit case on evident partiality, a case on equitable subrogation and reinsurance damages arising out of the 9/11 terrorist attacks and a trial court’s decision to allow evidence of follow-the-settlements on the question of whether the … Continue Reading

Vacating an Arbitration Award for Evident Partiality Just Got Harder

Vacating an arbitration award has always been tough.  The Federal Arbitration Act only has limited bases to seek vacatur.  One of those bases is when there is “evident partiality” by the arbitrator. 9 U.S.C. § 10(a)(2).  In “traditional” reinsurance arbitrations, the arbitration panel includes two party-appointed arbitrators, each of whom may be predisposed toward the position of … Continue Reading

June 2018 Reinsurance Newsletter

The Squire Patton Boggs June 2018 Reinsurance Newsletter is out.  You can access it here.  This quarter’s newsletter covers the Second Circuit’s remand of Global v. Century, an interesting Massachusetts case involving self-insured workers’ compensation programs and follow-on reinsurance, and a McCarran-Ferguson reverse preemption case.  Please enjoy.… Continue Reading

State Anti-Arbitration Statutes, the New York Convention and the McCarran-Ferguson Act

Arbitration provisions in insurance or reinsurance contracts periodically are challenged based on state anti-arbitration statutes.  Often, when non-US insurers or reinsurers are involved, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention“) is raised as a basis to enforce the arbitration provisions in federal court.  The counterpoint to that … Continue Reading

English Court of Appeal Rules on “Experience of Insurance and Reinsurance” Arbitrator Qualifications Includes Legal Experience

In Allianz Insurance PLC (formerly Cornhill Insurance PLC) v. Tonicastar Ltd,  [2018] EWCA Civ 434, the Court of Appeal held that the arbitral qualification of experience of insurance and reinsurance means experience as a lawyer working for the industry and does not mean only those who have worked for the industry qualify.… Continue Reading

March 2018 Reinsurance Newsletter

Our March 2018 Reinsurance Newsletter is now available for your reading pleasure.  This issue covers the Global v. Century decision by the New York Court of Appeals answering the Second Circuit’s certified question as well as our annual review of reinsurance trends in 2017, as well as cases involving reinsurance for the September 11th terrorist attacks … Continue Reading

Should We Expect a Surge in Reinsurance Disputes?

I recently came across a number of articles in the insurance trade press discussing the economic effect of the recent catastrophes on the reinsurance market.   Some of the commentators wondered whether all of the property and related losses will cause reinsurance premiums to rise and end the very long soft reinsurance market.  Others thought that the recent … Continue Reading

Confidentiality Agreements in Reinsurance Arbitrations

Confidentiality agreements in reinsurance arbitrations are ubiquitous, but often cause concern when a subsequent arbitration arises over the same or similar contracts with the same or similar parties.  A question that has arisen with some frequency, but which has not been fully addressed in court, is whether the confidentiality agreement in the first arbitration precludes … Continue Reading

Collateral Effect of US-EU Covered Agreement on Reinsurance Disputes

With the signing of the Bilateral Agreement on Prudential Insurance and Reinsurance Measures (the “Covered Agreement“), the EU and US have embarked on a five-year road towards cooperation on insurance and reinsurance competition, supervision and regulation.  While the main purpose of the Covered Agreement was leveling the playing field for international reinsurers and agreeing on cooperation and information … Continue Reading

September 2017 Reinsurance Newsletter

Our September 2017 Reinsurance Newsletter includes a featured article on discovery of reserves and reinsurance information as well as an update on the US-EU Covered Agreement.  It also reports on recent cases, including a manifest disregard case, a case on Insurance Law 1213 security and reinsurance collection issues by the assignee of a liquidator.  Please … Continue Reading

When the Court Picks Your Arbitrator

One of the criticisms leveled at arbitration is the length of time it takes to select the arbitration panel and specifically the third arbitrator or umpire.  Most arbitration clauses either specify an arbitral authority to assist the parties in selecting the arbitration panel or specify in the arbitration clause the method for selection and criteria … Continue Reading

Arbitration Award Clarification Confirmation

Generally, when an arbitration panel issues a final award the panel is “functus officio“; its powers expired and its duties relieved because it has finished its work and there’s no more to be done.  Sometimes, however, an arbitration panel will retain jurisdiction for a period of time after the final award is issued in case … Continue Reading

June 2017 Reinsurance Newsletter

This quarter’s Squire Patton Boggs Reinsurance Newsletter leads off with a summary of a New York federal case where an arbitration award was vacated for evident partiality.  It also features an update on the US-EU Covered Agreement. Please enjoy.… Continue Reading

Precluded By Issue Preclusion From Enforcing Reinsurance Arbitration Clause

In a recent state court appellate decision on a reinsurance collections dispute, the court affirmed a lower court order denying a motion to compel arbitration based on the collateral estoppel or issue preclusion effect of a prior decision. Collateral estoppel or issue preclusion may be used offensively or defensively. It is a civil procedure doctrine … Continue Reading

Relationship? What Relationship?: Evident Partiality and Arbitrator Disclosure

Arbitrators have a special responsibility to disclose all relevant relationships to the parties so that any potential conflicts can be vetted. There are some obvious relationships that need to be disclosed like prior employment by one of the parties. There are other relationships that may be disclosed out of an abundance of caution, but typically … Continue Reading

March 2017 Reinsurance Newsletter

This quarter’s Squire Patton Boggs Reinsurance Newsletter focuses on the certified question sent to the New York Court of Appeals by the Second Circuit on Bellefonte. It also features regulatory updates on the US-EU Covered Agreement as it affects reinsurance and on the new duty to pay insurance and reinsurance claims in the UK. Finally, … Continue Reading

The Interplay Between Subrogation, Arbitration and Insurance Insolvency

When an insurance company pays a loss on a claim, the insurance company often exercises its equitable right of subrogation to stand in the shoes of the insured and seek compensation from a third-party alleged to have caused the loss. In the property context, there may be an underlying contract that requires arbitration between the insured … Continue Reading

Exculpatory Clauses in Reinsurance Agreements

Exculpatory clauses appear in many contracts. They are often used to protect a contracting party from damages caused by its actions or the actions of others. For example, a hold harmless clause may protect one party from third-party suits caused by the alleged negligence of the other party. Exculpatory clauses, like hold harmless or indemnification clauses, … Continue Reading

Is a Private Commercial Arbitration a Foreign Tribunal Under 1782?

Insurance and reinsurance arbitrations outside the United States sometimes require the taking of evidence in the United States. Under federal law, “[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in … Continue Reading
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