The Ninth Circuit recently discussed arbitrators' subpoena powers and discovery in the case of CVS Health Corporation v. Vividus, LLC, No. 16-16187 (9th Cir. Dec. 21, 2017).
The court held that while Federal Arbitration Act Section 7 gives arbitrators the authority to subpoena witnesses for a hearing, including bringing documents to the hearing, it does not give arbitrators power to subpoena documents prior to a hearing.
Loyola New Orleans Law Professor Imre Szalai writes:
"The Ninth Circuit noted that its decision conflicted with the Eighth Circuit, which has held that section 7’s broad subpoena power for a hearing encompasses the lesser subpoena power regarding pre-hearing discovery...In my view, the Ninth Circuit is interpreting the FAA correctly, as originally intended. (Remember, back in the 1920s, broad pre-hearing discovery as we know it today under the Federal Rules of Civil Procedure did not exist.)"
Video of oral argument https://www.youtube.com/watch?v=C0FgDZ7csT4
Saturday, December 23, 2017
Tuesday, December 19, 2017
Reinsurance Arbitration
Reinsurance arbitration is the focus of a recent article by Jeff Stempel, a professor at the University of Nevada's Boyd School of Law.
The article, in Penn State University's Arbitration Law Review is Notes from a Quiet Corner: User Concerns About Reinsurance Arbitration – And Attendant Lessons for Selection of Dispute Resolution Forums and Methods.
The abstract:
Arbitration between insurers and reinsurers – those who insure insurance companies – should logically run as smoothly as any arbitration process. Like the traditional commercial arbitration that drove enactment of the Federal Arbitration Act, reinsurance arbitration involves experienced actors in a confined industry in which the parties should be constructively aware of the rules, norms, customs and practices of the industry. But in spite of this, reinsurance arbitration experiences consistent problems of which the participants complain. This article reviews the complaints and exams possible solutions – including the possibility of arbitrating less and litigating more. Although these possible solutions would seem to have enough merit for at least some experimentation, reinsurers and insurers are unlikely to stray far from the existing arbitration system in spite of its shortcomings.
The article, in Penn State University's Arbitration Law Review is Notes from a Quiet Corner: User Concerns About Reinsurance Arbitration – And Attendant Lessons for Selection of Dispute Resolution Forums and Methods.
The abstract:
Arbitration between insurers and reinsurers – those who insure insurance companies – should logically run as smoothly as any arbitration process. Like the traditional commercial arbitration that drove enactment of the Federal Arbitration Act, reinsurance arbitration involves experienced actors in a confined industry in which the parties should be constructively aware of the rules, norms, customs and practices of the industry. But in spite of this, reinsurance arbitration experiences consistent problems of which the participants complain. This article reviews the complaints and exams possible solutions – including the possibility of arbitrating less and litigating more. Although these possible solutions would seem to have enough merit for at least some experimentation, reinsurers and insurers are unlikely to stray far from the existing arbitration system in spite of its shortcomings.
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