ARIAS Fourth Quarter 2014 Quarterly

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The Quarterly journal of ARIAS-U.S....improving reinsurance arbitration for 20 years.

Transcript of ARIAS Fourth Quarter 2014 Quarterly




  • I was bowled over when the Hilton rose to our 20th anniversary blockbuster celebration todeliver a dinner appropriate to the occasion. While we hit some of the highlights on theARIAS website and in this edition of the Quarterly, well be reporting in depth on the sub-stantive aspects of the meeting in our next edition. Suffice it to say, we can take pride inbeing members of an organization that has accomplished much in its first 20 years and willsurely accomplish more in the 20 years to come. The celebration featured a shout out tothe members who made ARIAS what it is today with special thanks to Bill Yankus for his 12years of leadership as our Executive Director. In response to requests for the text of JeffRubins presentation of the ARIAS AWARD to Bill, weve included it in this edition. The ARIASwebsite features a slideshow from the event that is well worth a click.What do e-discovery, waivers of arbitration, and disputes arising out of MGA relationshipshave in common? Hard to say? Not really. They each give rise to disputes, disputes withinthe insurance/reinsurance community and disputes that may arise in arbitrations. Know what else these diverse subjects have in common? The membership of ARIAS hasdealt with all or most of them during the course of their careers. So if youre searching for acommunity of knowledgeable and experienced individuals capable of adjudicating disputesinvolving these matters and many more, youve come to the right place, ARIAS. Can similarknowledge and experience be found among the American judiciary? No, not hardly. The articles we feature in this edition of the Quarterly illustrate the diversity of our practice. Many years ago it was thought a matter involving 25,000 documents was a substantialcase. In the age of electronically stored information, we now deal in the realm of terabytes,For those unfamiliar with the term, terabyte, I wont define it but the entire Library of Con-gress is said to contain ten of them. While its not routine (yet) there certainly are reinsur-ance disputes that involve discovery requests for two or three terabytes of information.Michele Jacobsen and Royce Cohen lead off with a discussion of whether arbitrators shouldtake a page from the litigation world in dealing with burgeoning e-discovery disputes. We all know that arbitration is a matter of contract, not an inherent right. Contractual pro-visions can be waived and arbitration is no different. What is unique to waiver of arbitrationis the unique manner in which waiver will be found to have occurred. Equally important iswho decides waiver. In an article on the subject, Tom Newman explains it all.MGA arrangements seem to be praised one minute and reviled the next. Is this aninevitable cycle? Dale Crawford explains why MGA disputes occur and suggests how theymay be avoided.Last but not least, in a Law Committee report Elizabeth Kniffen summarizes the case ofTransatlantic Reinsurance Co. v. Natl Indem. Co., which addresses the circumstances underwhich non-signatories to a reinsurance agreement containing an arbitration provision maybe compelled to arbitrate. I hope youll find the articles in this issue interesting. As always, I end with a statement thatthe Quarterly welcomes, needs and depends on articles authored by our membership. Thereare many out there who want to share their knowledge, dreams of being the next Heming-way, or at least Fitzgerald, or just want to sound off. Heres your chance to do so. Just sendyour piece to me at

    EDITORIAL BOARDEditor Thomas P.

    Associate Editors Peter R. Chaffetzpeter.chaffetz@chaffetzlindsey.comSusan E. Grondine-Dauwersegboston@comcast.netMark S. Gurevitzgurevitz@aol.comDaniel E. Schmidt, IVdan@des4adr.comTeresa

    Managing Editor William H.

    International EditorsChristian H. Bouckaertchristian.bouckaert@bopslaw.comJonathan

    Ex-Ofcio Ann L. FieldEric S. KobrickElizabeth A. MullinsJames I. Rubin____________________Production/Art Director Gina Marie Balog

    VOL. 21 NO. 4FOURTH QTR. 2014


    The ARIASU.S. Quarterly (ISSN 7132-698X) is published Quarterly, 4 times a year byARIASU.S., 131 Alta Avenue, Yonkers, NY 10705.Periodicals postage pending at Yonkers, NY andadditional mailing offices.

    POSTMASTER: Send address changes toARIASU.S., P.O. Box 9001, Mt. Vernon, NY 10552

    ARIASU.S.7918 Jones Branch Dr., Suite 300,McLean, VA 22102Phone: 703-506-3260Fax:

    Thomas P. Stillman

  • Editors Comments Inside Front Cover

    Table of Contents Page 3

    FEATURE: Taking a Page from Litigation: Curbing Discovery Costsin ArbitrationBY MICHELE L. JACOBSON AND ROYCE F. COHEN Page 4

    News and Notices Page 7

    FEATURE: Waiver of Arbitration BY THOMAS R. NEWMAN Page 8

    Members on the Move Page 13

    FEATURE: Managing General Agency Disputes: Why They Recurand Some Thoughts for PreventionBY DALE CRAWFORD Page 14

    REPORT: ARIASU.S 2014 Fall Conference Page 18

    REPORT: Board of Directors Election Results Page 30

    Law Committee Reports Page 31

    IN FOCUS: Recently Certified Arbitrators Page 32

    Invitation to Join ARIASU.S. Page 34

    Membership Application Inside Back Cover

    ARIASU.S. Board of Directors Back Cover

    contentsVOLUME 21 N UMBER 4

    3 P A G E

    Editorial PolicyARIASU.S. welcomes manuscripts of original articles, book reviews, comments, and case notes from our membersdealing with current and emerging issues in the eld of insurance and reinsurance arbitration and dispute resolution.All contributions must be double-spaced electronic les in Microsoft Word or rich text format, with all references andfootnotes numbered consecutively. The text supplied must contain all editorial revisions. Please include also a briefbiographical statement and a portrait-style photograph in electronic form. Manuscripts should be submitted as email attachments to .Manuscripts are submitted at the sender's risk, and no responsibility is assumed for the return of the material. Materialaccepted for publication becomes the property of ARIASU.S. No compensation is paid for published articles.Opinions and views expressed by the authors are not those of ARIASU.S., its Board of Directors, or its Editorial Board,nor should publication be deemed an endorsement of any views or positions contained therein.

    Copyright NoticeCopyright 2014 ARIASU.S. The contents of this publication may not be reproduced, in whole or in part, without writtenpermission of ARIASU.S. Requests for permission to reproduce or republish material from the ARIASU.S. Quarterlyshould be addressed to Sara Meier, Executive Director, ARIASU.S., 7918 Jones Branch Drive, Suite 300, McLean, VA 22102or .

  • P A G E 4

    Michele L. JacobsonRoyce F. Cohen

    A common complaint these days is thatarbitration is becoming more like litigation.Protracted motion practice surroundingdiscovery disputes has become the norm inthe arbitration arena. Privilegedeterminations and privilege logs, which caninvolve thousands of individual entries, havebeen at the forefront of discovery disputesin both litigation and arbitration. New York courts are taking a giant leapforward in curbing the costs of discovery byadopting a Rule in New York SupremeCourts Commercial Division designed tolessen the burden of producing privilegelogs. Rule 11-b of Section 202.70(g) of theUniform Rules for the Supreme and CountyCourts (Rules of Practice for the CommercialDivision) (Rule 11-b), which goes into effecton September 2, 2014, establishes apreference for categorical privilege logs.Rule 11-b is intended to promote moreefficient, cost-effective pretrial disclosure byestablishing a preference in theCommercial Division for use of categoricaldesignations rather than document-by-document logging.1

    A categorical privilege log has a single entrythat corresponds to several documents thatrelate to some subject matter category orhave the same type of information.2Accordingly, rather than requiring litigantsto prepare a log containing a separate entryfor each document withheld from disclosureon a claim of privilege, Rule 11-b suggeststhat documents may logged by categorythus considerably reducing the number oflog entries. Significantly, categorical loggingdoes not obviate privilege review, but ratherallows documents that would otherwisehave to be logged individually to be groupedinto categories. The Rule cements New Yorks efforts tobecome a leading venue for the cost-effective, efficient resolution of commercial

    disputes. Like j