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Michael Wolgin

Ninth Circuit Confirms Arbitration Award Due to Failure to Preserve Objection to Arbitrability

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Pioneer Roofing Organization (PRO) appealed an order from a federal district court granting summary judgment in favor of Sheet Metal Workers’ Local Union No. 104 on PRO’s petition to vacate the arbitrator’s award. PRO primarily argued that the arbitrator lacked authority to resolve the underlying grievance, arguing that it was a jurisdictional dispute not subject to arbitration. Reviewing de novo, the Ninth Circuit affirmed, finding that PRO waived its arbitrability challenge by failing to preserve the issue through either of the two recognized methods for doing so: (1) objecting to the arbitrator’s authority, refusing to argue the arbitrability issue before the arbitrator, and proceeding to the merits of the grievance; or (2) making an objection as to jurisdiction and expressly reserving the question on the record. Pioneer Roofing Organization v. Sheet Metal Workers’ Local 104, Case No. 17-15296 (9th Cir. June 4, 2018).

This post written by Gail Jankowski.

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Texas Department of Insurance Proposes Regulations Implementing Reduced Collateral Credit for Reinsurance Law Passed by Texas Legislature in 2017

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We previously reported on the Texas Legislature’s passage in 2017 of Senate Bill 1070, which reduced collateral requirements for foreign reinsurers in order for domestic insurers to receive credit for the reinsurance on their financial statements. The provisions of that bill took effect on January 1, 2018.

On March 15, 2018, the Texas Department of Insurance proposed to amend the Texas Administrative Code to implement the changes made by SB 1070. The amendments to §§ 7.601-7.612 and 7.614 implement amendments to existing reinsurance processes, including trust accounts and letters of credit that may affect certified assuming insurers, and clarify filing requirements and reduce the administrative burden and cost of submissions. Several of the amendments adopt revised versions of the NAIC Model Credit for Reinsurance Regulation, although the amendments do not adopt all of the Model Regulations. 28 TAC §§7.601-7.612, 7.614, and 7.621-7.627 (amended June 15, 2018).

This post written by Benjamin E. Stearns.

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In Deepwater Horizon Arbitration, UK Appellate Court Declines to Remove Arbitrator with Multiple Related Appointments

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The underlying case concerned the 2010 explosion and fire on the Deepwater Horizon oil rig in the Gulf of Mexico, when a well which was in the process of being plugged and temporarily abandoned, experienced a blow out. The appellant, Halliburton, provided cementing and well-monitoring services to BP in relation to the temporary abandonment of the well. Halliburton made a claim on its liability insurance against Chubb; however, Chubb refused to pay Halliburton’s claim, contending, among other things, that Halliburton’s settlement of the claims was not reasonable and that Chubb had not consented to the settlement.

At the coverage dispute arbitration between Halliburton and Chubb, two arbitrators were appointed on behalf of Halliburton and Chubb respectively. The third arbitrator, however, was Chubb’s preferred candidate. While the third arbitrator disclosed to Halliburton that he had acted, and was currently acting, as an arbitrator in multiple arbitrations involving Chubb, he did not disclose that he was serving as an arbitrator appointed by Chubb in two other disputes involving Transocean, the owner of the rig in this case. As such, in both instances, the third arbitrator heard similar or identical arguments by Chubb. Upon learning of this information, Halliburton issued a claim form seeking that the third arbitrator be removed. But the claim form was subsequently dismissed, and Chubb went on to win the arbitration against Halliburton.

Among several issues on appeal was “[w]hether and to what extent an arbitrator may accept appointments in multiple references concerning the same or overlapping subject matter with only one common party without thereby giving rise to an appearance of bias.” On this question, the Court reasoned that “the mere fact that an arbitrator accepts appointments in multiple references concerning the same or overlapping subject matter with only one common party does not of itself give rise to an appearance of bias.” With regard to the requirement, if any, of disclosure, the Court reiterated the English law principle that the required disclosure was “facts or circumstances which would or might lead the fair-minded and informed observer, having considered the facts, to conclude that there was a real possibility that the arbitrator was biased.”

Applying these principles, the court was persuaded that “(1) the non-disclosed circumstance does not in itself justify an inference of apparent bias; (2) disclosure ought to have been made, but the omission was accidental rather than deliberate; (3) the very limited degree of overlap means that this is not a case where overlapping issues should give rise to any significant concerns; (4) the fair-minded and informed observer would not consider that mere oversight in such circumstances would give rise to justifiable doubts as to impartiality; and (5) there is no substance in Halliburton’s criticisms of [the third arbitrator’s] conduct after the non-disclosure was challenged or in the other heads of complaint raised by them.” The court then affirmed the judgment, denied Halliburton’s challenge, and declined to find a real possibility that the third arbitrator was biased. Halliburton Co. v. Chubb Bermuda Ins. Co., Case No. [2018] EWCA Civ 817 (Royal Courts of Justice, Apr. 19, 2018).

This post written by Gail Jankowski.

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New Federal Law Aims To Increase Transparency Of International Insurance Standard-Setting Bodies

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President Trump signed the Economic Growth, Regulatory Relief, and Consumer Protection Act into law on May 24, 2018. Section 211 of the law requires the Secretary of the Treasury, Board of Governors of the Federal Reserve System, and Director of the Federal Insurance Office (“federal regulators”) to support “increasing transparency at any global insurance or international standard-setting regulatory or supervisory forum in which they participate.” The law requires the federal regulators to achieve consensus positions with State insurance regulators through the NAIC when the federal regulators “take a position or reasonably intend to take a position with respect to an insurance proposal by a global insurance regulatory or supervisory forum.”

The law creates the Insurance Policy Advisory Committee on International Capital Standards and Other Insurance Issues at the Board of Governors of the Federal Reserve System. The Committee must comprise of not more than 21 members representing a “diverse set of expert perspectives from the various sectors of the United States insurance industry.”

The law requires the Secretary of the Treasury and the Chairman of the Board of Governors of the Federal Reserve System to submit an annual report and provide annual testimony on their efforts with the NAIC with respect to global insurance regulatory or supervisory forums. The reports must address (i) issues under discussion at international standard-setting bodies, including the Financial Stability Board (FSB) and the International Association of Insurance Supervisors (IAIS); (ii) the effects that proposals discussed at the international bodies could have on consumer and insurance markets in the United States; (iii) any position taken by the federal regulators in international insurance discussions; and (iv) efforts by the federal regulators to increase transparency at the FSB and the IAIS. The law also permits the NAIC to provide congressional testimony.

The law requires the federal regulators, in consultation with the NAIC, to complete a study and report to Congress on the impact of any final international insurance capital standard on consumers and markets in the United States before supporting or consenting to the adoption of the standard. The law provides for public notice and an opportunity for public comment with respect to the report. The federal regulators are required to submit to the Comptroller General of the United States the report for his or her review.

Finally, not later than 180 days after the date of enactment of this law (November 20, 2018), the Chairman of the Board of Governors of the Federal Reserve System and the Secretary of the Treasury, or their designees, shall submit to Congress a report and provide testimony to Congress on the efforts of the Chairman and the Secretary to increase transparency at meetings of the IAIS. S. 2155, 115th Cong. § 211 (2018).

This post written by Benjamin E. Stearns.

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Idaho, South Carolina, and Tennessee Update Credit for Reinsurance Laws

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South Carolina and Tennessee updated their respective credit for reinsurance statutes consistent with NAIC Credit for Reinsurance Model Law 785. Idaho and Tennessee adopted the NAIC Credit for Reinsurance Model Regulation 786. Among other changes, the updated model law and regulation set incremental collateral requirements for reinsurance ceded to alien reinsurers in order for a cedent to recognize a reduction in its liabilities for the amount ceded. Previously, the reinsurance ceded to alien reinsurers was required to be secured by 100% collateral. Idaho Credit for Reinsurance Rules no. 18-01-75 issued Mar. 28, 2018 (rules) (redline of proposed rules); South Carolina H.B. 4656 eff. May 3, 2018 (bill) (redline); Tennessee H.B. 1808 eff. Jan. 1, 2019 (bill) (summary); Tennessee Regs. Chapter 0780-01-63 eff. May 31, 2018 (regulation and redline).

This post written by Michael Wolgin.
See our disclaimer.