Archive for 2009

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Holman Fenwick Willan and The Loree Law Firm Give London Talk on U.S. Versus English Arbitration Law

December 7th, 2009 Association of Insurance and Reinsurance Run-Off Companies (AIRROC), English Law, Events, London Market, Practice and Procedure, Reinsurance Arbitration Comments Off on Holman Fenwick Willan and The Loree Law Firm Give London Talk on U.S. Versus English Arbitration Law

On December 1, 2009 my friend and colleague Costas Frangeskides , a partner at Holman Fenwick Willan (“HFW” or “Holmans”), and I gave a presentation at HFW’s London offices entitled “Reinsurance Arbitration:  Approaching Things Differently Either Side of the ‘Pond.'”   The program was moderated by Holmans partner Andrew Bandurka, who, like Costas, focuses his practice on reinsurance and insurance dispute resolution.  I have known Costas and Andrew for several years as we were co-counsel in a long-running matter handled by Holmans and my former law firm, Cadwalader, Wickersham & Taft LLP. 

The presentation was designed to provide reinsurance professionals with some insights concerning the differences between U.S. and English reinsurance arbitration practice and procedure.  The principal theme was that U.S. arbitration law is designed principally to enforce the parties’ arbitration agreement as written, placing it on the same footing as all other contracts, while English arbitration law favors party automony, but also imposes a greater number of policy-based norms regulating arbitration, which limit to some extent the parties’ ability to structure their dispute resolution procedure exactly as they see fit. Continue Reading »

Reinsurance Nuts & Bolts: A Potpourri of Reinsurance Issues: Gulf Ins. Co. v Transatlantic Reins. Co. (1st Dep’t Oct. 1, 2009) (Part II of a Two-Part Post).

November 20th, 2009 Appellate Practice, Contract Interpretation, New York State Courts, Nuts & Bolts, Nuts & Bolts: Reinsurance Comments Off on Reinsurance Nuts & Bolts: A Potpourri of Reinsurance Issues: Gulf Ins. Co. v Transatlantic Reins. Co. (1st Dep’t Oct. 1, 2009) (Part II of a Two-Part Post).

Introduction

In Part I of this two-part post (here) we discussed the background and procedural history of Gulf/Transatlantic and how New York’s Appellate Division, First Department resolved the issues of:  (a) the amount of reinsurance accepted by Gerling; and (b) whether the trial court should have granted Gerling’s motion for summary judgment on Gulf’s reformation claim.  This Part II covers the remaining three issues whether:  (a) the 1998 First Union Policy “attached” to the 1999 Treaty; (b) Gerling reinsured the policies Gulf issued to a subsidiary of the General Electric Company; and (c) Gerling established a question of material fact concerning whether it was entitled to rescind the 1999 Treaty.    Continue Reading »

Reinsurance Nuts & Bolts: A Potpourri of Reinsurance Issues Courtesy of Gulf Ins. Co. v Transatlantic Reins. Co. (Part I of a Two-Part Post)

November 17th, 2009 Appellate Practice, Contract Interpretation, New York State Courts, Nuts & Bolts, Nuts & Bolts: Reinsurance, Rescission and Reformation 1 Comment »

Introduction

Today we look at a reinsurance case recently decided by the New York Supreme Court, Appellate Division, First Department, New York’s intermediate appellate court for cases originating in New York County (Manhattan) and certain other counties in the New York metropolitan area.  We would not characterize Gulf Ins. Co. v Transatlantic Reins. Co., ___ A.D.3d ___,  2009 NY Slip Op. 06788 (1st Dep’t Oct. 1, 2009) (copy here), as a ground-breaker, but it involves a number of interesting  issues, including the interpretation and construction of a quota share treaty, course of performance, reformation and rescission. 

Substantive reinsurance cases are a relatively rare breed to begin with (especially in recent years), and cases that discuss a broad range of issues in some depth are rarer still.  That makes Gulf/Transatlantic worthy of some attention, especially to those interested in learning a few reinsurance law basics.  Hat tip to my friend and former colleague James P. Tenney for bringing the case to our attention.

Continue Reading »

More Posts, Please!

November 14th, 2009 General Comments Off on More Posts, Please!

We owe our readers an apology.  The press of business has been, well, particularly pressing over the past week or so, and we have not posted anything in over a week. 

Please be assured that there are posts in the works and that pretty soon we will be churning them out at a respectable rate once again.  

Stay tuned….

Global Arbitration Review Publishes Article on Hansen v. Everlast and Quotes Philip J. Loree Jr.

November 3rd, 2009 Arbitrability, Authority of Arbitrators, Awards, Functus Officio, New York Court of Appeals, Nuts & Bolts: Arbitration, Uncategorized, United States Court of Appeals for the Second Circuit Comments Off on Global Arbitration Review Publishes Article on Hansen v. Everlast and Quotes Philip J. Loree Jr.

Readers may recall our recent post on the New York Court of Appeals’ decision in Re Joan Hansen & Co v. Everlast World’s Boxing Headquarters Corp., ___ N.Y.3d ___, slip op. (Oct. 15, 2009), a case which demonstrates how important the parties’ submission is in determining arbitral authority.  The Court held that, after an award, a party cannot reopen an arbitration proceeding to request that the arbitrators decide an issue that had not previously been submitted to the arbitrators.  A copy of our post is here.  

On November 2, 2009 Kyriaki Karadelis of the U.K.-based trade publication Global Arbitration Review (“GAR”)  (website here) wrote what I thought was a concise and insightful article on the case.  And we would have said that even if she had not quoted some of our comments in her article!  But she did, and we’re flattered by that. 

With Global Arbitration Review’s permission, and with the required copyright disclaimer, we have posted the article as a “Slide Share Presentation” in my LinkedIn profile, which you can view by clicking here.  Also posted there (again with GAR’s permission and the required disclaimer) is a Global Arbitration Review Article on the United States Court of Appeals for the Second Circuit’s decision in  ReliaStar Life Ins. Co. v. EMC National Life Co., ___ F.3d ___, ___ (2009) (Raggi, J.) (blogged here and here), in which the United States Court of Appeals for the Second Circuit held that an arbitration panel was authorized to award under the bad faith exception to the American Rule attorney and arbitrator fees to a ceding company in a case where the parties had agreed that “[e]ach party shall bear the expense of its own arbitrator.  .  .  and related outside attorneys’ fees, and shall jointly and equally bear with the other party the expenses of the third arbitrator.”  We reported on GAR’s article concerning ReliaStar case here, which also quotes some of our comments on that case. 

We ask our readership to remember that GAR is a subscription-only publication and that it has copyrights in these posted materials.  GAR has authorized us to post them online and distribute them for marketing purposes, but that authorization does not extend to others not similarly situated.  Please do the right thing and respect GAR’s copyrights — GAR has to make a living just like the rest of us!     

Recently-Formed Re/Insurance Mediation Institute Holding a Cocktail Reception in New York City on November 11, 2009

October 31st, 2009 Mediation, Re/Insurance Mediation Institute, Reinsurance Mediation Comments Off on Recently-Formed Re/Insurance Mediation Institute Holding a Cocktail Reception in New York City on November 11, 2009

We previously reported that Peter A. Scarpato, Katherine Billingham and Andrew S. Walsh, in conjunction with others, recently formed the Re/Insurance Mediation Institute (“ReMedi”), a nonprofit organization whose mission is to “foster the development of mediation as a means of resolving reinsurance and insurance disputes.”  (See our prior post here.)  More information about ReMedi can be found here, and you can read about Peter and Kathy here, here, here, here and here. 

The Founding Members of ReMedi, including Peter, Kathy and Andy, are hosting a cocktail reception in New York city to celebrate the establishment of the new organization. The reception will be held on November 11, 2009, from 5:30 p.m. to 7:30 p.m., at the offices of Chaffetz Lindsey LLP, 1350 Avenue of the Americas, New York, NY 10019 (6th Avenue and 55th — enter at 55th).

Peter asked the Forum to let those interested in reinsurance and insurance mediation know that, if you have not received an invitation, but wish to attend, then you should contact him at (215) 369-4329. Alternatively, you can contact me via e mail  (pjl1@loreelawfirm.com) or telephone ((516) 627-1720), and I will be happy to let Peter know that you are interested in attending.   

The event is sponsored by Chaffetz Lindsey LLP and Cozen O’Connor, and is free of charge.   The Founding Members of ReMedi (other than Peter, Kathy and Andy) are Paul Dassenko, Larry Monin, Jonathan Rosen, Jim Shanman, Jim Stinson, Kevin Tierney, Liz Thompson, David Thirkill, Vince Vitkowski, and Richard Waterman. 

Peter, Kathy, Andy and I hope to see you at the reception.

Update: The LinkedIn Commercial and Industry Arbitration and Mediation Group is 404 Members Strong

October 30th, 2009 Commercial and Industry Arbitration and Mediation Group, Mediation, Negotiation Comments Off on Update: The LinkedIn Commercial and Industry Arbitration and Mediation Group is 404 Members Strong

On May 21, 2009 Disputing and the Loree Reinsurance and Arbitration Law Forum announced the formation of the LinkedIn Commercial and Industry Arbitration and Mediation Group (post available here), an open forum for the discussion of industry and commercial ADR.   At that time the group was 29 members strong, and we are pleased to report that the group has since grown to 404 members.  And about 150 of those new members have joined since August 29, 2009. 

Discussions have been lively, the group is internationally and professionally diverse, and group members have access to several ADR blogs, as well as articles posted by other group members.  It is an excellent networking and learning opportunity for anyone interested in commercial and industry ADR.

The group recently set up a subgroup — the Effective Negotiation and Settlement Subgroup — which is now more than 90 members strong.  This subgroup, founded by California mediator, arbitrator and blogger Michael P. Carbone, focuses on identifying and discussing the effective negotiation, mediation and settlement of disputes that are the subject of pending arbitration or litigation proceedings.  Membership in the main group is the only prerequisite to participate in the subgroup.   

Membership in the group is recommended to those interested in keeping abreast of current events pertinent to arbitration (including consumer arbitration), tracking judicial and legislative developments relevant to arbitration law, learning more about the subject, or simply sharing information.  We are proud to have as members a number of commercial and industry arbitrators, attorneys, law professors, industry people and arbitration professionals.   

Membership is also recommended if you are a mediator, a business person who utilizes mediation to resolve disputes, an attorney who represent clients in mediation or a person interested in learning about mediation or sharing information on the subject.  The group is proud to have as members a number of accomplished mediators, including some well-known ADR bloggers.  Not being a mediator myself, I have learned much about mediation simply through group participation.    

We welcome new members.  The group is not a forum for, and does not permit, advertising or blatant self-promotion, so our members need not be concerned about being subject to sales pitches, and the like. 

If you are already a member of LinkedIn, please click here to apply for membership in the Group. If you are not a LinkedIn member, click here, and you will be guided through the process of creating a profile (which does not need to be completed in one step).  Once your profile is started, and you have a log-in name and password, you can apply for membership in the Group (which entails no more than clicking on a button).  Joining LinkedIn is free, as is joining the group.

We hope you’ll join us and participate!

Introducing Guest-Blogger Donald R. Philbin, Jr.

October 28th, 2009 Guest Posts, Mediation, Negotiation Comments Off on Introducing Guest-Blogger Donald R. Philbin, Jr.

Today we are proud to feature our good friend and colleague Don Philbin as a guest blogger.   

As readers may know, Don is an arbitrator, mediator, negotiator, AV-rated attorney, and business consultant, whose website is here.  He is an experienced commercial litigator, and was general counsel and president of hundred-million dollar plus communications- and technology-related companies.   He is listed in The Best Lawyers in America (Alternative Dispute Resolution; Woodward/White 2007, 2008).  In addition to his other work Don frequently writes and speaks on topics pertinent to ADR, and is an adjunct professor at Pepperdine University Law School’s prestigious Straus Institute for Dispute Resolution.  He serves as a co-manager of LinkedIn’s Commercial and Industry Arbitration and Mediation Group (here), and tweets about ADR-related topics on Twitter (follow Don here).   Don can be contacted here.  

Don was kind enough to send us a post on one of his favorite topics: brain science and its relevance to negotiation.  His post briefly describes a seminar on this subject, which he attended the weekend before last, and which he found particularly compelling.   Read about it here.

Don Philbin Guest Post: Brain Science Improves Negotiation

October 28th, 2009 Commercial and Industry Arbitration and Mediation Group, Guest Posts, Mediation, Negotiation 4 Comments »

By Donald R. Philbin, Jr.

Psychology has informed negotiation theory for years. (See here.)  As a result, we know that all negotiators:

  1. Are overconfident – we all live in Lake Wobegon where the grass is greener and everyone is above-average;
  2. Reactively devalue offers coming from an adverse party – even if they happen to be in our interest (“it can’t be good for us if it came from them”); and
  3. Have different risk tolerances – and react differently to the same offer.

But faster magnetic resonance imaging (“MRI”) machines have allowed brain scientists to monitor a subject’s reactions to different stimuli in real time.  That has accelerated the pace of discovery and expanded research frontiers.  Vanderbilt Law School, for instance, has received grants to investigate how insights of brain research affect the legal system.  (See here.)  When used in an effort to prove guilt or innocence, there is inevitable controversy.  But learning how the human brain often functions can be good training for negotiators and the mediators that often assist them.

I have long been interested in the ways economics and psychology can broaden the typical legal analysis in mediation.  The ABA recently published “How Brain Science can Make You a Better Lawyer” (here), a broad survey, but not particularly insightful negotiation theory.  So I took a course titled, “Neuro-Collaboration: How New Perspectives from the Neurosciences Can Enhance Your Collaborative Conflict Resolution Skills” (here) the weekend before last in beautiful Woodstock, Vermont (yes, the leaves were still changing).  Continue Reading »

Arbitration Nuts & Bolts: New York Court of Appeals Says the Submission Defines the Scope of the Panel’s Authority

October 26th, 2009 Arbitrability, Authority of Arbitrators, Functus Officio, New York Court of Appeals, Nuts & Bolts, Nuts & Bolts: Arbitration, Reinsurance Arbitration, Reinsurance Claims 2 Comments »

On October 15, 2009 The New York Court of Appeals decided Re Joan Hansen & Co v. Everlast World’s Boxing Headquarters Corp., ___ N.Y.3d ___, slip op. (Oct. 15, 2009) (here), a case which demonstrates how important the parties’ submission is in determining arbitral authority. The Court held that, after an award, a party cannot reopen an arbitration proceeding to request that the arbitrators decide an issue that had not previously been submitted to the arbitrators.

The power of arbitrators appointed to resolve a particular dispute or disputes is defined by the submission, not the arbitration agreement. The scope of the agreement to arbitrate tells us only what must be submitted to arbitration. It is the submission itself that “serves not only to define, but to circumscribe the authority of the arbitrators.” Ottley v. Schwartzberg, 819 F.2d 373, 376 (2d Cir. 1987) (here).   

As the United States Court of Appeals for the Fifth Circuit explained, a predispute arbitration agreement generally is “not self-executing” — “[b]efore arbitration can … proceed, it is necessary for the parties to supplement the agreement to arbitrate by defining the issue to be submitted to the arbitrator and by explicitly giving him the authority to act.”  Piggly Wiggly Operators’ Warehouse Inc v. Piggly Wiggly Operators’ Warehouse Independent Truck Drivers Union, 611 F2d 580 (5th Cir. 1980) (here).  The disputes presented to the panel for resolution without objection constitute the submission, which may be embodied in a formal submission agreement or determined from the arbitration demand in conjunction with the arguments and contentions made by the parties during the proceeding. Continue Reading »

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