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December 2019 Reinsurance Newsletter

In our December 2019 Reinsurance Newsletter we discuss non-signatories being bound by arbitration clauses, a case involving who decides arbitrability questions, a functus officio case, a remand to an arbitration panel to clarify an arbitration award, and an update on TRIA.  A number of other case developments are digested as well.  Please enjoy.  Feedback is always welcomed.… Continue Reading

Another Federal Court Denies Application to Seal Arbitration Award

Nearly every US reinsurance arbitration includes a Confidentiality Agreement.  The vast majority of those confidentiality agreements are based on the ARIAS•U.S. Confidentiality Agreement and Protective Order model form.  Most confidentiality agreements provide that disclosure may be made “as is necessary in connection with court proceedings relating to any aspect of the arbitration, including but not limited … Continue Reading

Reinsurance and the Death Master File

In a traditional life insurance and reinsurance relationship, a life insurance company issues a policy to a policyholder and reinsures the policy (usually via a block of business consisting of the same or similar policies) with its reinsurer either by coinsurance or on a yearly renewable term basis (or otherwise).  When the insured person dies, … Continue Reading

In State Court It’s Just as Tough to Vacate an Arbitration Award

Most commercial arbitrations fall under the Federal Arbitration Act.  But some arbitrations are intra-state so they come within the various state arbitration laws.  In New York, for example, Article 75 of the Civil Practice Law and Rules governs arbitration.  When it comes to vacating an arbitration award, however, choosing state law over the FAA is … Continue Reading

It’s Not Over Until It Is Over

In reinsurance arbitrations, once the arbitration panel issues its final award its job is over.  That’s what the doctrine of functus officio means.  But there are exceptions to the functus officio rule (see our Blog from November 2018).  Additionally, what happens when a panel retains jurisdiction after issuing the final award?  In a recent case, … Continue Reading

Non-Party Notice of Appeal in Reinsurance Dispute Results in an Award of Attorney Fees

When you are not a party to a legal proceeding, but nevertheless file a notice of appeal purportedly on behalf of a party after a settlement, the likelihood of a positive outcome is very low.  Such was the case recently before a New York federal court.  The result:  an award of attorney fees.… Continue Reading

Pre-Answer Security and Preclusion Based on Arbitral Decision — Who Decides?

In reinsurance disputes where one party is insolvent or has financial difficulties, the other side often demands security.  Where a non-domiciliary is involved, some states have pre-answer security requirements, which have been held to apply in reinsurance arbitrations.  In a procedurally complicated case, where an arbitration panel issued a security award and then stayed the … Continue Reading

Liquidator’s Motion to Dismiss Petition to Confirm Reinsurance Arbitration Award Denied

In some states receivers may bring claims inside or outside the receivership court, including reinsurance arbitrations. In other states receivership proceedings end the ability of either party to bring a reinsurance arbitration outside of the liquidation court.  In a recent case, a receiver of an insolvent cedent commenced a reinsurance arbitration outside of the receivership … Continue Reading

Partial Final Award Not Ripe For Confirmation

Under Section 9 of the Federal Arbitration Act, a court must confirm an arbitration award when a timely request is made unless there is a basis to vacate or modify the award.  But a court has no ability to confirm an arbitration award unless the award is considered a “final” award.  The law in virtually … Continue Reading

March 2019 Reinsurance Newsletter

Our March 2019 Reinsurance Newsletter is available for your reading pleasure.  It covers reinsurance developments since December 2018 and also includes regulatory and policy updates as well as our annual Brief Review of Reinsurance Trends.  Please enjoy.  You can access the Newsletter here.… Continue Reading

When Arbitrators Exceed Their Powers

When an arbitration panel issues a final award any challenge to that award faces an uphill battle.  That is because under the Federal Arbitration Act (“FAA”) a final arbitration award must be confirmed (if requested) and can only be vacated for a very narrow set of reasons.  Of the four grounds for vacatur under Section … Continue Reading

Arbitration Awards and Confidentiality Revisited

In reinsurance arbitrations, most parties agree to confidentiality and enter into a formal confidentiality order.  The confidentiality order typically applies to the final award as well as all materials generated in the arbitration.  Some insurance and reinsurance agreements have confidentiality provisions that lead to the same result.  The ARIAS-U.S. Rules for U.S. Insurance & Reinsurance … 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

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

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

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

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

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

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

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
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