Reinsurance Focus

New reinsurance-related and arbitration developments from Carlton Fields

Court Follows Fifth Circuit Precedent in Enforcing Unsigned Insurance Arbitration Agreement Under New York Convention

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The insured argued that the arbitration agreement at issue was not enforceable under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards because the agreement was not signed by both parties and therefore was not “an agreement in writing” as required by Article II of the Convention. The district court disagreed, relying on Sphere Drake Insurance PLC v. Marine Towing Inc., a Fifth Circuit case decided in 1994, which held that an arbitration agreement need not be signed to qualify as an “agreement in writing.”

The insured argued that the court should “depart from this binding precedent because there have been several developments in both the Fifth Circuit and in other circuit courts of appeal that have undermined Sphere Drake’s reasoning.” The district court, however, declined the insured’s invitation, noting that the court was “duty bound” to apply binding Fifth Circuit precedent “absent an intervening change in the law… by a statutory amendment, or the Supreme Court, or [the Fifth Circuit’s] en banc court.” As there had been no qualifying “intervening change in the law,” the court was required to apply the holding of Sphere Drake and thus found that the insurance contract and arbitration agreement therein constituted a sufficient “agreement in writing” to be enforced under the Convention.

The insured also argued that, if the court compelled the parties to arbitrate, it should issue a ruling that Louisiana law governed the dispute. The court noted that the insured sought to preempt an anticipated argument that the language of the arbitration clause precludes the award of penalties and attorneys’ fees for bad faith claims handling, which awards would be available under Louisiana law. The court again declined, noting that the insured cited no authority for the proposition that it could dictate the law to be applied to a future arbitration proceeding, nor did the insured address the fact that the court’s “limited jurisdiction” at this stage of proceedings was confined to determining the applicability of the Convention to the arbitration clause at issue.

Maxwell Heirsch, Inc. v. Velocity Risk Underwriters, LLC, No. 2:23-cv-00495 (E.D. La. July 26, 2023).

District of Maryland Holds Insurance Policy’s Appraisal Provision Constitutes Enforceable Arbitration Clause Under FAA

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In Travelers Casualty Insurance Company of America v. Papagiannopoulous, the U.S. District Court for the District of Maryland addressed the issue of whether a real estate “appraisal provision” included in an insurance policy can be considered an enforceable arbitration clause under the Federal Arbitration Act.

The case, a declaratory judgment and insurance coverage dispute, was brought by Travelers, which disputed the qualifications of appraisers selected by the defendants to conduct an appraisal of a commercial building. The building had been damaged by a fire and the defendants submitted a claim for losses incurred as a result of the incident. The insurance policy included an appraisal provision, which set forth the procedures for the selection of appraisers in the event of a loss. The policy provided that each party would select “a competent and impartial appraiser” and the two appraisers would then select an umpire. The defendants selected an appraiser to conduct a site inspection of the property. Travelers retained an estimator to inspect the property. The defendants then made a written demand under the policy for an appraisal, selecting the same appraiser who conducted the prior inspection, as well as another appraiser. Travelers objected to the defendants’ designated appraisers, contending they were not impartial. Travelers refused to designate an appraiser and filed a declaratory judgment action seeking a declaration that defendants’ appraisers were not qualified, and directing the defendants to designate competent appraisers. The defendants filed a motion to compel appraisal and to stay the case pending the appraisal award, and to dismiss for improper venue.

The district court first recognized that, when considering whether an appraisal provision constitutes an arbitration clause under the FAA, it is “irrelevant that the contract language in question does not employ the word ‘arbitration’ as such. Rather, what is important is whether the parties clearly intended to submit some disputes to binding review by a third party.” The court concluded that the insurance policy section that included the appraisal provision was sufficient to qualify as an agreement to submit disagreements to a third-party appraiser and, as such, the FAA governed the dispute. The court then concluded that it lacked subject matter jurisdiction over the dispute, granted the defendants’ motion, and dismissed the action. The court also concluded that Travelers’ request for a declaration that the defendants’ appraisers were not qualified was premature, since objections to an arbitrator’s qualification may not be entertained by the court until after the arbitration has been concluded and an award has been entered.

Travelers Casualty Insurance Company of America v. Papagiannopoulous, No. 8:22-cv-02314 (D. Md. July 27, 2023).

Sixth Circuit Holds Validity of Employee’s Electronic Signature Creates Issue of Fact, Reverses Order Compelling Arbitration

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In Bazemore v. Papa John’s U.S.A. Inc., the Sixth Circuit Court of Appeals considered the plaintiff’s appeal of an order granting the defendant’s motion to compel arbitration and to dismiss the plaintiff’s complaint brought under the Fair Labor Standards Act.

The case, a putative class action brought by Papa Johns delivery driver Andrew Bazemore, alleged that Papa Johns had under-reimbursed Bazemore’s vehicle expenses, which resulted in him being paid less than the minimum state and federal wage requirements. Papa Johns moved to compel arbitration based on an arbitration agreement allegedly signed by Bazemore through an electronic signature program called e-Forms. Papa Johns submitted an affidavit in support of the motion explaining the process employees must follow to electronically sign the arbitration agreement as a condition of employment, and indicating the company’s records showed that Bazemore had “followed this process to sign its arbitration agreement.” Bazemore opposed the motion, contending that he had never seen or heard about the arbitration agreement and that his alleged login credentials “were clearly made up.” Bazemore requested limited discovery related to the validity of his alleged electronic signature. The district court denied Bazemore’s request for discovery, finding his position that he had never seen the agreement was a “convenient lapse in memory,” and granted Papa Johns’ motion to compel arbitration and to dismiss the complaint.

The Sixth Circuit first recognized the Federal Arbitration Act requires that a party seeking to compel arbitration must prove a valid arbitration agreement exists, and “[i]f a genuine issue of material fact arises as to whether such an agreement exists, the court shall proceed summarily to the trial thereof.” The court then found that while an electronic signature can be legally valid and show a party’s assent to an agreement, the parties presented conflicting evidence as to whether Bazemore’s electronic signature was valid, including Bazemore’s sworn statement that he had never seen the arbitration agreement before. The court found this disagreement presented a genuine issue of material fact for the fact finder to determine, and even though Bazemore did not expressly state he had not signed the agreement, “a reasonable factfinder could plainly infer that, if Bazemore had not seen the agreement, he had not signed it either.” The court reversed the district court’s order compelling arbitration and remanded the case for further proceedings.

Bazemore v. Papa John’s U.S.A., Inc., No. 22-6133 (6th Cir. July 20, 2023).

Second Circuit Affirms Confirmation of Arbitration Award Issued Under Cyprus-Libya Bilateral Investment Treaty

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The Second Circuit Court of Appeals recently affirmed the confirmation of an arbitration award issued under a bilateral investment treaty between Libya and Cyprus. We previously described the underlying Southern District of New York opinion confirming the award in a prior post.

On appeal to the Second Circuit, Libya primarily argued that the district court erred by declining to independently review the arbitrability of the claims involved before confirming the final award. The Second Circuit disagreed with Libya’s contention that a de novo standard should have been applied to review the arbitral tribunal’s decision because Libya “clearly and unmistakably” agreed to submit questions of arbitrability to the arbitrator. Libya indisputably agreed to arbitrate such issues when it signed the bilateral investment treaty providing Cypriot investors with the option of resolving disputes under the arbitral rules of the International Chamber of Commerce (ICC).

In so holding, the court noted the consistent line of cases holding that “when one party is a signatory to a bilateral investment treaty containing a provision for arbitration, the treaty constitutes a standing offer to arbitrate disputes covered by the treaty, and a foreign investor’s written demand for arbitration completes the agreement in writing to submit the dispute to arbitration.” The bilateral investment treaty simply creates “a framework through which foreign investors can initiate arbitration against parties to the Treaty. Accordingly, all that is necessary to form an agreement to arbitrate is for one party to be a [bilateral investment treaty] signatory and the other to consent to arbitration of an investment dispute in accordance with the Treaty’s terms.”

Having determined that a valid arbitration agreement was formed upon submission of the claim to the arbitral tribunal of the ICC by the Cypriot investor, the court turned next to the question of arbitrability of the dispute. While courts presume that questions of arbitrability are for the court to decide, not the arbitrator, that presumption is overcome where the record “supplies clear and unmistakable evidence that the parties agreed to submit the issue to arbitration.” Such “clear and unmistakable” evidence of intent can be provided by the incorporation of rules that empower an arbitrator to decide issues of arbitrability. To determine whether such rules have been incorporated into the parties’ agreement, the courts look to both the text of the relevant bilateral investment treaty and the procedural rules adopted by the parties at the outset of the arbitration.

Here, the terms of the bilateral investment treaty authorized investors to submit a dispute to the ICC. ICC rules presumptively apply to disputes submitted to the ICC. Accordingly, by signing the bilateral investment treaty, “Libya clearly and unmistakably agreed to send questions of arbitrability” to the arbitrator. As a result, the district court was required to defer to the arbitrator’s determination of the arbitrability of the parties’ dispute. The Second Circuit therefore affirmed the district court’s decision declining de novo review and confirmation of the ICC tribunal’s arbitration award.

Olin Holdings Ltd. v. State of Libya, No. 22-825 (2d Cir. July 12, 2023).

Southern District of New York Dismisses Petition to Confirm $145M Foreign Arbitration Award for Lack of Personal Jurisdiction

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The Southern District of New York recently dismissed a petition to confirm a $145 million arbitration award rendered in Hong Kong based on lack of personal jurisdiction.

Zhongzhi Hi-Tech Overseas Investment Ltd. obtained a $145 million arbitration award in Hong Kong against Dr. Vincent Wenyong Shi related to Dr. Shi’s and another company’s alleged failure to make contractually required payments.

Hi-Tech moved to confirm that award in the Southern District of New York. Dr. Shi moved to dismiss, claiming a lack of personal jurisdiction. The court granted the motion, holding that New York’s long-arm statute was not met and that jurisdiction did not comport with due process.

Hi-Tech argued that New York’s long-arm statute was met based on Dr. Shi’s (1) execution of a contract providing that New York law would govern that contract, (2) Dr. Shi’s defense of a lawsuit pending in the Southern District, and (3) Dr. Shi’s role as an executive of a company listed on the New York Stock Exchange. The district court rejected these arguments.

First, it noted that the contract had been amended and that its choice-of-law provision had been replaced by a new clause providing that Hong Kong law would govern. The original choice-of-law provision therefore provided no basis for jurisdiction, and Hi-Tech conceded that a choice-of-law provision “does not equate to consent to jurisdiction” in any event.

Second, Dr. Shi was involved in defending a suit in the Southern District against a company he was involved in, but “a party’s consent to jurisdiction in one case extends to that case alone” and therefore did not provide a basis for jurisdiction against Dr. Shi in this case.

Third, although a company Dr. Shi was a leader in had been listed on the New York Stock Exchange, having a company listed on the NYSE is not sufficient to confer jurisdiction. Even if it was, the company had been delisted and there was thus no basis for jurisdiction.

With respect to due process, the court noted that New York and the United States had little interest in the dispute and that Dr. Shi had little or no reason to expect to be hailed into court there.

Zhongzhi Hi-Tech Overseas Investment Ltd. v. Wenyong Shi, No. 1:22-cv-06977 (S.D.N.Y. July 17, 2023).