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International Arbitration and State Regulation: The Interaction Between the McCarran-Ferguson Act and the New York Convention
Direct insurance contracts, like other commercial agreements, can be structured to provide for arbitration as the chosen means of dispute resolution. See, e.g., Michael Ha, Arbitration Boosts Efficiency: Alliance, National Underwriter, March 17, 2003. Despite the perceived efficiencies of arbitration, some groups have pushed for widespread regulation of the use of arbitration clauses in commercial insurance contracts. See Mandatory Arbitration on NAIC Agenda, Insurance Chronicle, Feb. 3, 2003. Thus far, those opposed to arbitration clauses in insurance contracts have focused their efforts on persuading individual state regulators to restrict or ban the inclusion of mandatory arbitration clauses. See id.
The presumed primacy of state authorities in insurance regulation is grounded in the McCarran-Ferguson Act, 15 U.S.C. ”1011-1015. Consequently, there may be situations where a federal policy in favor of arbitration yields to state regulations that forbid the practice in the specific context of insurance contracts. See, e.g., National Home Ins. Co. v. King, 291 F. Supp. 2d 518, 529-30 (E.D. Ky. 2003) (gathering leading cases). That view often relies on the McCarran-Ferguson Act statement that “[n]o Act of Congress shall be construed to invalidated, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance … unless such Act specifically relates to the business of insurance.” 15 U.S.C. '1012(b). Because the Federal Arbitration Act (“FAA”) ' which contains the federal government's most-cited expression of support for arbitration clauses ' does not relate specifically to insurance, see National Home Ins., 291 F. Supp. 2d at 528, some courts have concluded that its general support for the enforcement of arbitration clauses is “reverse pre-empted” by the McCarran-Ferguson Act.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.