Compel Arbitration

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Arbitration Prevails in Coverage Dispute

In a recent coverage dispute, an Indiana federal court addressed a two-pronged issue.  First, in the case of a multi-tiered ADR clause, who decides whether the dispute should be conducted under the arbitration section of the clause?  Second, where there are several arbitration clauses, who decides which one prevails?  You’ll have to read more to … Continue Reading

June 2020 Reinsurance Newsletter

The Squire Patton Boggs June 2020 Reinsurance Newsletter is now available for your reading pleasure.  You can read the Newsletter on the Squire Patton Boggs website at this link.  In this issue we discuss the Second Circuit’s Utica v. Fireman’s Fund decision, which reversed a judgment for the cedent after a jury verdict.  We also … Continue Reading

New York Federal Court Compels Arbitration in Life Reinsurance Dispute Over Trust Assets

Where two or more agreements are involved in a transaction, a dispute over one of the agreements often raises arbitrability questions.  This is especially true where a reinsurance agreement with an arbitration clause is paired with a trust agreement with no arbitration clause.  In a recent life reinsurance case, a New York federal court addressed … Continue Reading

Federal Risk Retention Act Preempts State Anti-arbitration Law

During an earlier insurance availability crisis, the federal government enacted the Liability Risk Retention Act (“LRRA”).  Under the LRRA, a risk retention group (“RRG”) can be formed in one state and can do an insurance business in other states.  As discussed in a recent blog post, some states have passed anti-arbitration laws that preclude insurance … Continue Reading

Reverse Preemption Is Alive and Well in Washington State

Most reinsurance contracts have binding arbitration provisions.  The Federal Arbitration Act (FAA) sets out a national policy in favor of arbitration.  Yet, there are states that expressly preclude arbitration provisions in insurance contracts.  Does that apply to reinsurance contracts?… Continue Reading

Arbitrators to Decide If Reinsurance Rebilling After Final Arbitration Award Is Precluded

What happens when, after a reinsurance arbitration over how the ceding company billed the reinsurer is resolved in the reinsurer’s favor with a final award confirmed by the court, the ceding company rebills the reinsurer for the same losses (but differently than the way it did during the prior arbitration)?  If the reinsurer again denies … Continue Reading

Who Decides Whether a Reinsurer Is a Run-off Reinsurer?

In the past 10 years or so, several ceding companies began adding run-off reinsurer clauses to their reinsurance contracts to mitigate disputes that might arise with reinsurers no longer actively in business.  In a recent case, a Georgia federal court had to address whether it or an arbitration panel should determine whether the reinsurer was, … Continue Reading

March 2020 Reinsurance Newsletter

The Squire Patton Boggs Reinsurance Newsletter has been published.  The March 2020 Newsletter includes a discussion of a Third Circuit consolidation issue, reinsurance cases resulting from the recent hurricanes in Puerto Rico, an intervention case in the life reinsurance world, and, of course, our annual A Brief Review of Reinsurance Trends section covering the important … Continue Reading

Who Demands Arbitration Is Key to Whether Arbitration Will Be Compelled

Complex corporate structures and internal reinsurance relationships can complicate legacy reinsurance relationships.  This is especially true where the underlying losses are long-tail liabilities and where companies have changed, merged, combined and succeeded each other.  A key question for any legacy reinsurance treaty is whether the losses now being ceded come within the scope of the … Continue Reading

Who Decides Consolidation Issue? A New Arbitration Panel or the Old One?

It is pretty well settled under modern arbitration law, including reinsurance arbitrations, that procedural issues like consolidation are questions for the arbitrators and not the courts.  But what happens if there are multiple arbitration panels?  Which panel decides the consolidation application?  And what if one arbitration has been completed and a motion to consolidate is … Continue Reading

Liquidator Compelled to Arbitrate Hurricane Reinsurance Disputes

The federal policy favoring arbitration sometimes bumps up against state-based receivers where the receiver would rather the receivership court address reinsurance disputes than have the matter arbitrated.  In the aftermath of Hurricanes Irma and Maria, which devastated Puerto Rico, reinsurance disputes arose over a cedent’s allocation between the hurricanes and other aspects of the many … Continue Reading

Unique Arbitration Clause Does Not Prevent Granting of Motion to Compel Arbitration

Whether a motion to compel arbitration will be granted depends on, among other things, whether the arbitration provision is broad or narrow and whether the dispute falls within the scope of the arbitration provision.  In a recent case, a California federal court construed unique language in an arbitration provision in a reinsurance agreement, granted the … 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

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

In a Battle of Conformity and Preemption, Arbitration Prevails

The Supremacy Clause of the U.S. Constitution nullifies state laws that conflict with federal law and treaties of the U.S.  But, under the McCarran-Ferguson Act, state insurance law reverse preempts federal law that interferes with the business of insurance as regulated by the states.  This issue comes up in conflicts between anti-arbitration provisions in certain … Continue Reading

The Consolidation Circus Continues

In December 2018, we blogged about a new reinsurance arbitration consolidation case.  We mentioned that the reinsurer filed several other petitions to compel arbitration in various jurisdictions all seeking to allow for consolidation of these disputes in three arbitrations  based on the different reinsurance programs.  The facts are the same so read the December 2018 post … Continue Reading

Arbitration of Insurance Coverage Disputes

Coverage disputes between insurance carriers and policyholders are ripe for resolution through arbitration.  ARIAS•U.S. is working on a project to create an arbitration pathway, including modified rules and requirements for certified arbitrators, for these types of disputes and others.  But unless the parties agree or the insurance contract contains an arbitration clause, the arbitration option … Continue Reading

New Arbitrability Decision from the Supreme Court

A new arbitration decision was handed down by the U.S. Supreme Court on January 8, 2019.  My colleagues in our labor and employment practice swiftly blogged about the new decision so I won’t repeat their cogent analysis. The case has nothing to do with insurance or reinsurance. But the principles set forth by Justice Kavanaugh … Continue Reading

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

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

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

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

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
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