In a non-reinsurance arbitration under the auspices of the American Arbitration Association, a three member panel signed an award, which the AAA found was not final due to continuing discussions among the members of the panel. Three days later, the panel issued a final award, which the AAA sent to the parties. A dispute arose as to which award should be confirmed. The District Court respected the authority of the AAA to determine the finality of awards, and confirmed the latter award. The US Court of Appeals for the Second Circuit affirmed. The Courts also rejected a contention that the latter award was in manifest disregard of law. Appel Corp. v. Katz, Case No. 02-8879 (2nd Cir. Feb. 2, 2007).
Confirmation / Vacation of Arbitration Awards
Court defers to AAA’s decision as to finality of arbitration award
In a non-reinsurance arbitration under the auspices of the American Arbitration Association, a three member panel signed an award, which the AAA found was not final due to continuing discussions among the members of the panel. Three days later, the panel issued a final award, which the AAA sent to the parties. A dispute arose as to which award should be confirmed. The District Court respected the authority of the AAA to determine the finality of awards, and confirmed the latter award. The US Court of Appeals for the Second Circuit affirmed. The Courts also rejected a contention that the latter award was in manifest disregard of law. Appel Corp. v. Katz, Case No. 02-8879 (2nd Cir. Feb. 2, 2007).
Fifth Circuit articulates evident partiality standard
In a software licensing dispute, a sole arbitrator entered an award, only to have the award vacated by a District Court on the basis that the arbitrator had failed to disclose an instance in which he had served as one of many co-counsel in a lawsuit with one of the counsel in the arbitration. The District Court vacated the arbitration award, on the basis that the prior relationship “might have conveyed an impression of possible partiality to a reasonable person.” A panel of the Fifth Circuit affirmed, but in an en banc decision, the full Fifth Circuit reversed, finding that the nondisclosure of “a trivial or insubstantial prior relationship” did not merit vacating the award under the evident partiality standard. The relevant legal standard arises out of a plurality Supreme Court opinion, and the en banc opinion noted a split of the Circuits as to what legal standard for evident partiality comes from the Supreme Court's opinion, with the en banc opinion alinging with the way in which the majority of Circuit Courts had interpreted the opinion. Positive Software Solutions, Inc. v. New Century Mortgage Corp., Case No. 04-11432 (5th Cir. Jan. 18, 2007). There is a prior Reinsurance Focus posting about this case dated June 6, 2006, which includes the Fifth Circuit panel opinion.
Court remands case to new arbitration panel for further proceedings
After partially vacating an arbitration award as being in manifest disregard of law, a District Court has remanded the case to a new arbitration panel for further proceedings. The Court found it inappropriate to remand the case to the same arbitration panel for further proceedings relating to the issue as to which it had found that the panel had manifestly disregarded Pennsylvania law. Koken v. Cologne Reinsurance (Barbados) Ltd., Case No. 98-0678 (USDC MD Pa Dec. 5, 2006).
Court stays enforcement of arbitral award pending ruling by liquidation court on set off claim
LDG Re reinsured workers' compensation and employers' liability risks retained by Legion Insurance and a related company under two quota share reinsurance agreements. LDG Re booked the reinsurance into a pool facility in which a number of companies participated, including Chartwell Reinsurance (which was later purchased by Trenwick America Reinsurance). When LDG failed to make timely payments under the quota share agreements, Legion demanded arbitration. A settlement was reached. When LDG allegedly failed to make payments required by the settlement agreement, Legion sought to reactivate the arbitration. LDG objected, contending that the dispute was not arbitrable and that the pool members were entitled to set off other debts owed to them by Legion. The panel entered an award purporting to enforce the settlement agreement, requiring a payment by LDG of over $5 million, not mentioning the set off request. Legion moved to confirm the award, and Trenwick moved to intervene in both the District Court action and in Legion's liquidation proceeding in Pennsylvania state court, seeking to assert a set off. In a Memorandum Opinion, followed by an Order and Judgment, the District Court confirmed the arbitration award, but stayed execution pending the submission by Legion or Trenwick of a motion in the liquidation proceeding seeking a ruling as to whether the claimed set off should be allowed. Koken v. LDG Re Corp., Case No. 06-81 (USDC ED Pa. Dec. 29, 2006).