In Josef Syska (Administrator of Elektrim SA (in bankruptcy) and Elektrim SA (in bankruptcy) v Vivendi Universal SA & Others [2009] EWCA Civ 677 the main question to be decided by the Court of Appeal was whether, when an arbitration is proceeding in one Member State of the European Union, in this case the UK, and one of the parties to the arbitration becomes insolvent in another Member State, in this case Poland, the consequences of that insolvency, in so far as they affect the arbitration, are to be determined by the law of the Member State where the insolvency proceedings have been instituted or the law of the Member State in which arbitration is taking place. 

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Read More UK: Arbitration and Insolvency

In Tim Knight v AXA Assurance [2009] EWHC 1900 (QB) the court was asked to determine two preliminary issues of law: whether the assessment of damages, where liability is admitted, should be governed by English law; and to what extent the award of pre-judgment interest should be governed by English law and/or French law. …
Read More UK: Damages and Pre-Judgment Interest Where the Damage Occurs in a Foreign Jurisdiction

There have been a number of recent cases considering the jurisdiction of the English courts and the enforcement of foreign arbitration awards. In Dallah Estate & Tourism Holding Co v Ministry of Religious Affairs, Government of Pakistan [2009] EWCA Civ 755 the Court of Appeal considered the application of section 103(2)(b) of the Arbitration Act 1996 (“Act”), under which an English court may refuse to recognise or enforce a New York Convention (“Convention”) arbitration award where the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made. 

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Read More UK: Recognition and Enforcement of International Arbitration Awards

As the House of Representatives prepared to leave for its month-long August recess last week, Rep. Richard Neal (D-MA) introduced legislation to repeal a controversial tax deduction used by foreign reinsurers.  The bill, H.R. 3424, would disallow the deduction for excess non-taxed reinsurance premiums with respect to United States risks paid to affiliates. 

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Read More Insurance and Financial Regulatory Reform Update

Region – A spokesman for Spanish banking group Santander reportedly stated recently that the company is considering selling its insurance units in Argentina, Chile and Mexico, though he reportedly also referred to the situation as “vague and imprecise.” …
Read More Latin American Insurance and Reinsurance Update: Market Growth in Mexico, Ecuador and Argentina; Puerto Rican Regulator Shutters Insolvent Insurer; Santander Considers Sale of Argentinean, Chilean and Mexican Insurance Units

The First Circuit recently upheld a trial court’s ruling that an insurer need not defend or indemnify the defendants in a wrongful conviction claim where the wrongful acts occurred prior to the policy period. …
Read More First Circuit: No Coverage for False Arrest Suit Where Arrest and Conviction Occurred Prior to the Policy Period

The West Virginia Supreme Court recently answered  the following question certified from the U.S. District Court in that state: Does the insured bear the burden of showing that a jury awarded damages for covered, as opposed to non-covered, claims when the answer is not clear from the award itself? 

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Read More West Virginia: Insured Bears Burden of Proving Allocation of Jury Award between Covered and Non-covered Claims Unless Insurer Controls Defense

The Massachusetts Supreme Judicial Court recently held that where an insured “incurs covered costs as a result of ongoing environmental contamination occurring over more than one year and the insurer provided coverage for less than the full period of years in which contamination occurred,” the loss should be pro rated among all the insurers on the risk during the relevant period. …
Read More Massachusetts Highest State Court: Pro-Rata “Time-On-The-Risk” Allocation Method Applies to Ongoing Environmental Pollution Occurring Over Multiple Policy Periods

On 27 July 2009,  the Financial Services Authority (the FSA) issued PS09/14: “The approved persons regime – significant influence function review” (the Policy Statement) confirming that it will extend the approved persons regime for those that perform a ‘significant influence’ function at firms. The changes are aimed at better reflecting the corporate governance structures that exist within firms. 

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Read More Financial Services Authority Confirms Changes to the Rules for Approved Persons