The Legal, Practical and Tactical Guide to Winning

Reinsurance Arbitrations

Monday, September 27 to Tuesday, September 28, 2004
Helmsley Park Lane 36 Central Park South, New York, NY
Monday September 27, 2004

8:00 Registration and Continental Breakfast

9:00 Co-Chairs' Opening Remarks


Nicholas S. Canelos
Senior Vice President & Global Claims Manager
General Reinsurance Corporation (Stamford, CT)

Larry P. Schiffer
Partner, LeBoeuf, Lamb, Greene & MacRae, LLP (New York, NY)

9:15 What Can Be Done to Improve the U.S. Arbitration System? An Interactive Roundtable

Henry T. French, Jr.
Senior Vice President
Associate General Counsel, XL Capital Ltd (Bermuda)

Andrew L. Noga
Vice President and Associate General Counsel
Endurance Reinsurance Corporation of America (White Plains, NY)

Kent A. Savage
Assistant Vice President Law
Sun Life Financial (Toronto, Canada)

Moderator
Mark S. Gurevitz
Senior Vice President and Director of
Property-Casualty Law, The Hartford (Hartford, CT)

The increasing time and expense associated with reinsurance arbitrations has led many reinsurance executives to question the viability of the current system. This panel of in-house counsel will address the current arbitration regime and discuss whether the system works and what can be done to improve it, including proposals to adopt characteristics of the UK and Bermuda arbitration systems.
  • How useful are the various arbitration guidelines (AAA, ARIAS-U.S., RAA)?
  • Reinsurers' and reinsureds' perspectives on arbitration versus litigation
  • Does arbitration favor ceding companies?
  • Do choice of law provisions help or harm the U.S. arbitration process?
  • Should the umpire be a former lawyer or former judge?
  • Will companies stop using arbitration clauses?
  • Can the trend towards exhaustive discovery be reversed?
  • Should the arbitrator certification process be expanded?
  • Are there advantages in other arbitration processes (UK, Bermuda) that would improve the U.S. system, if adopted?
    • neutral arbitrators
    • reasoned awards
    • finality
10:30 Morning Refreshment Break

10:45 The In-House Counsel's Guide to Managing the Arbitration Process

Sarah W. Campbell
Vice President and Deputy General Counsel
Transamerica Reinsurance (Charlotte, NC)

Arthur Gang
Vice President and Associate General Counsel
Partner Reinsurance Company of the U.S. (Greenwich, CT)

Eric S. Kobrick
Associate General Counsel
American International Group, Inc. (New York, NY)

Moderator
Nicholas S. Canelos
Senior Vice President & Global Claims Manager
General Reinsurance Corporation (Stamford, CT)
  • Examining treaty provisions for dispute resolution in advance of a dispute
  • Techniques and tips for managing the arbitration process
  • Should you consider mediation as a preliminary step?
  • When to consolidate multiple cases
  • Controlling costs when arbitrating
  • Business considerations that may impact the company's approach to the arbitration
  • Tactics and strategies for settlement
  • What factors in-house counsel consider when retaining outside counsel
12:00 Networking Luncheon

Luncheon Panel Session
Stephen Hartigan
Director
JTW Reinsurance Services Ltd. (London, UK)

Isobel McCalman
Editor, Reinsurance Magazine (London, UK)

Julian Thomas Ward
CEO, JTW Reinsurance Consultants (London, UK)

"The Evolution of Arbitration in the London Market"

1:30 Selecting the Arbitration Panel

Adam A. Roberts
Second Vice President and Assistant General Counsel
General Reinsurance Corporation (Stamford, CT)

Larry P. Schiffer
Partner, LeBoeuf, Lamb, Greene & MacRae, LLP (New York, NY)

James A. Shanman
Partner, Edwards & Angell, LLP (New York, NY)
  • What are the important criteria?
    • for party-appointed arbitrators
    • for umpires
    • from the perspective of a cedent
    • from the perspective of a reinsurer
  • Should arbitrators be neutral?
    • disinterested
    • impartial
  • Identifying arbitrator conflicts
    • with parties
    • with attorneys
    • with each other
  • Traditional and alternative methods for selecting the umpire
  • Raising a challenge to an arbitrator
2:30 Setting the Rules: The Organizational Meeting and Preliminary Motions

Martin D. Haber
ARIAS-U.S. Certified Arbitrator (New York, NY)

Kenneth R. Pierce
Partner, Cadwalader, Wickersham & Taft, LLP (New York, NY)
  • Can arbitrators decide the scope of their own powers?
  • What to do when there is a dispute over the scope of the arbitrators' powers
  • Determining whether an issue is within the scope of the arbitration
  • Can the arbitration panel address a party's objections to an arbitrator made at the organizational meeting?
  • Tips on creating an agenda/timetable
  • Should the parties sign a "hold harmless"?
  • What disclosures should arbitrators make at the organizational meeting?
  • When to request pre-hearing security
    • standards for alien companies
    • financial requirements for U.S. companies
  • Communications between arbitrators and parties: when should they be cut off?
  • What issues will need to be addressed when there are multiple parties?

3:30 Afternoon Refreshment Break

3:45 Obtaining or Preventing Discovery in Arbitration


Mark G. Chudleigh
Partner, Sedgwick, Detert, Moran & Arnold, LLP (London, UK)

Bina Dagar
President, Ameya Consulting, LLC (Livingston, NJ)

Jeff Kayl
Vice President, Everest Reinsurance Company (Liberty Corner, NJ)

John B. Rosenquest, III
Counsel, Edwards & Angell, LLP (Hartford, CT)

  • How are the arbitrators controlling discovery?
  • Does litigation offer greater protection of potential evidence?
  • Strategies for getting arbitrators to include/exclude evidence
  • Overcoming difficulties in cross-border discovery
  • Non-party discovery against London and Bermuda-based third parties
  • Obtaining discovery in respect of other arbitrations
  • How to access a London market broker's file
  • Pursuing non-party discovery
  • How arbitrators are resolving privilege issues
  • Discovery of file documentation
    • from the formation stage of the contract
    • relating to the contract wording
    • relating to the performance by parties to the contract
    • modifications of the contract
4:45 Conference Adjourns for the Day



Tuesday September 28, 2004

8:30 Coffee Served

9:00 Co-Chairs' Opening Remarks


Nicholas S. Canelos
Senior Vice President & Global Claims Manager
General Reinsurance Corporation (Stamford, CT)

Larry P. Schiffer
Partner, LeBoeuf, Lamb, Greene & MacRae, LLP (New York, NY)

9:15 Hearing Strategies and Tactics: The Arbitrators Speak

Mary Ellen Burns
ARIAS-U.S. Certified Arbitrator (Stamford, CT)

Paul E. Dassenko
ARIAS-U.S. Certified Arbitrator (New York, NY)

James J. Phair
ARIAS-U.S. Certified Arbitrator
Executive Vice President, SCPIE Companies (Summit, NJ)

Paul C. Thomson, III
ARIAS-U.S. Certified Arbitrator (New York, NY)

Moderator
Robert E. Sweeney, Jr.
Partner, Lord, Bissell & Brook, LLP (Chicago, IL)

Reinsurance arbitrators have a great deal of discretion over the arbitration hearing. How are they supervising these proceedings? What tactics do they find effective or ineffective in an arbitration hearing? Benefit from the practical information these four experienced arbitrators will provide in an interactive discussion moderated by an arbitration attorney.
  • Arbitrators' considerations when establishing how the arbitration will be conducted and the presentation of evidence at the hearing
  • How arbitrators are maintaining control of the proceedings
  • When is something less than a full-blown hearing appropriate?
  • Arbitrators' approaches to hearings that may extend over multiple sessions
  • Making use of technology at a hearing
  • Avoiding the problem of repetition
  • Objections that can be raised during a hearing
  • How party-appointed arbitrators approach the questioning of witnesses
  • What hearing tactics are counter-productive?
  • What constitutes unacceptable misbehavior?
  • Are you better off using live witnesses?
  • Arbitrators' views on expert testimony
  • Whether to argue the contract requirements or "custom and practice"
  • Understanding how "custom and practice" has changed
10:30 Morning Refreshment Break

10:45 Using and Excluding Evidence in an Arbitration Hearing


Eric Haab
Partner
Lovells (Chicago, IL)

T. Richard Kennedy
ARIAS-U.S. Certified Arbitrator (New York, NY)

James I. Rubin
Partner, Butler Rubin Saltarelli & Boyd LLP (Chicago, IL)
  • How much testimony will arbitrators allow in a hearing?
  • What can you do to exclude testimony?
  • Are arbitrators becoming more or less inclined to cut off testimony?
  • Using expert testimony
  • Getting in or preventing
    • third-party witness testimony
    • hearsay evidence
    • documentary evidence
  • How arbitrators view deposition transcripts versus live testimony
12:00 Networking Luncheon

1:15 Winning Your Case Before an Arbitration Panel


Michael A. Knoerzer
Partner, LeBoeuf, Lamb, Greene & MacRae, LLP (New York, NY)

Peter T. Maloney
Corporate Counsel, Senior Vice President & Corporate Secretary
QBE the Americas (New York, NY)
  • Proving your case to an arbitration panel: science or art?
  • Do Rules of Evidence apply?
    • authenticity issues
    • hearsay
    • objections
  • Does it matter who has the burden of proof?
  • Do arbitration panels really listen to "experts"?
  • Proof of specific issues
    • allocation
    • number of occurrences
    • late notice
    • follow the settlements
    • follow the fortunes
  • Strategies and techniques for proving damages
2:15 Remedies in Arbitration: Final Awards

James Veach
Partner, Mound Cotton Wollan & Greengrass (New York, NY)

Richard L. White
ARIAS-U.S. Certified Arbitrator
Deputy Liquidator, Integrity Insurance Company in Liquidation (Paramus, NJ)
  • How much discretion do arbitrators have in formulating remedies?
  • How to obtain rescission or partial rescission
  • What factors are considered when tabulating damages?
  • Pursuing injunctions and other equitable remedies
  • When will declaratory awards be granted?
  • Convincing the arbitrators to award interest, costs and attorney's fees
  • Keeping the arbitrators available to resolve post-verdict issues
  • Should you provide for a reasoned award in your arbitration clause?
3:15 Afternoon Refreshment Break

3:30 Modify, Confirm or Challenge: Post-Award Procedures


Diane M. Nergaard
ARIAS-U.S. Certified Arbitrator
Senior Legal Consultant, CDC IXIS Financial Guaranty North America, Inc.
(New York, NY)

Evan L. Smoak
Partner, Barger & Wolen LLP (New York, NY)
  • Are there any grounds for successfully challenging an arbitration award?
  • Should you seek clarification from the panel first, or go straight to court?
  • How to select the court venue for challenging an award
  • Addressing confidentiality issues that can arise in court
  • When to request modification of the award
  • Enforcing the award after confirmation
  • How do you enforce an award when the other party is overseas?
  • Statute of limitations issues when trying to collect
  • What impact does the York Convention have on the enforcement of international decisions?
4:30 Conference Adjourns