Reinsurance Contract Wordings and Disputes

Course overview

Key practical issues of reinsurance wordings presented by a panel of experts, including:

• Incorporation of clauses
• Contract certainty and the Market Code of Practice and other market reforms
• Follow the settlement clauses
• Aggregation clauses
• The practical impact of contract wordings on reinsurance claims
• Clauses dealing with loss of rights
• Choice of law and dispute clauses
• NEW FOR 2009 – Mock dispute session

What is this seminar about?

In reinsurance contracts, it is quite common practice for the wordings, which define the obligations of the parties, to be neglected. This results in the contract being unclear about the relationship between the reinsured and the reinsurer. Unfortunately, issues such as these often cause problems between the parties in later years and can lead to costly disputes.

In this seminar, leading experts give a step-by-step guide to the world of reinsurance wordings, making this an ideal programme for new lawyers in the reinsurance industry and also in private practice. During the intensive two days training all the important issues which need to be taken into consideration at the contract negotiation and drafting phase will be highlighted. The programme is designed to be highly practical and plenty of time will be set aside for questions and discussion between the audience and the expert panel of speakers.

New for 2009
The programme has been expanded to take some important additional topics into consideration. In addition, a mock dispute session has been added which will further illustrate some of the problematic wordings that have been discussed during the seminar and how they are best dealt with in the event of a dispute.

Who should attend?

• Wordings technicians
• Reinsurance technicians
• Claims managers
• Wordings specialists
• In-house lawyers
• Lawyers in private practice
• Anyone who is involved in the drafting or implementation of reinsurance wordings

By attending this seminar, you will:

1 MASTER the basic legal principles of reinsurance terms and contracts wordings
2 GET-TO-GRIPS with the common clauses and legal considerations
3 GAIN an understanding of the incorporation of clauses
4 LEARN about the complexities of follow and settlement clauses
5 HEAR about the impact of contract wordings on reinsurance claims
6 GET UP-TO-DATE with the latest developments and current practise in choice of law and dispute clause

Programme - Day 1

The impact of contract wordings on reinsurance claims

• The need for clear contract wordings
• Managing reinsurance disputes
• Arbitration clauses
• Problems which can arise with respect to claim audits
• Contract certainty
• Contract wordings and latent claims
• Brokers and contract wordings
• Support required by the claims department to validate claims

Contract certainty and the other Market reforms

• Status of contract certainty efforts
• The role of the Market Reform Group
• The Market Reform Contract
• Market Process Reforms – ECF/A&S/E-Policies
• Developments at Lloyd’s

Incorporation of clauses

• The rationale for incorporation of clauses
• Does incorporation work?
• What are the difficulties with words of incorporation
• Impact of recent cases

Practical workshop session
A practical interactive workshop focusing on reinsurance contract
wordings and their interpretation. Delegates will be divided into small
groups to consider various issues in sample reinsurance contract
clauses including when its best to stay with the strict wordings and
interpretation and when it may be better to deviate.

• Follow the fortunes or follow the settlements – principles, presumptions and practicalities(
• General principles – history and purpose of ‘follow’ clauses
• Construction and effect
  • Pro-cedent clauses
  • Pro-reinsurer clauses
• Limitations on duty
  • Bad faith
  • Ex gratia payments
  • Burden of proof
  • Claims governed by foreign law
• Conflicts with claims cooperation or control clauses
• English v US position

Defining the loss/aggregation clauses

• Meaning of event, occurrence and related terms
• Functions of aggregation clauses
• Key applications of aggregation principles
• Application of the relevant text for aggregation of loss
• Recent cases on aggregation – lessons learnt

Programme - Day 2

Loss of rights

• Conditions, conditions precedent and warranties
• Waiver by affirmation and waiver by estoppel
• The elements and availability of waiver
• Refusal to provide an indemnity – effect on the reinsured’s obligation to co-operate

Claims co-operation clauses

• What are claims co-operation clauses in the reinsurance context?
• Imposing control via a claims co-operation clause (CCC)
• ‘Scor’ clauses
• Recent cases and their implications for reinsurers
• Importance of clear words
• Notification of loss under a CCC
• The importance of ensuring a CCC is a condition precedent
• Lessons to be learnt

Choice of law clauses

• Rules applicable to choice of law clauses – the new Rome I Convention
• Incorporation of choice of law from insurance to reinsurance
• ‘Floating’ choice of law clauses
• Choice of law in arbitration

Contract wordings and Part VII of the FSMA 2000

• Change of legislation resulting from HM Treasury Consultation November 2006
• Framework for objections by reinsureds and outwards reinsurers
• Loss of rights
• Implied statutory restrictions on outwards reinsurance contract wording ‘anti-avoidance’
• Ways to adapt contract wording

Access to records clauses and confidentiality

• Construction of the Access to Records clauses
• Purpose of the Access to Records clause
• The right to inspect during disputes
• Failure to inspect
• Enforceability of the Right to Inspect
• Scope of the Right to Inspect
• Confidentiality clauses

Dispute clauses

• Court v arbitration
• Speed v cost
• Expert knowledge
• Joining third parties
• Enforcement
• ADR clauses
• What is an Honorable Engagement clause?
• Arbitration Act 1996

Mock mediation
A moderated mock mediation of a reinsurance dispute based on a scenario
to be provided to delegates.

The expert faculty

Helen Franzese is Counsel of Riker Danzig London LLP and practices exclusively in insurance law, advising and representing insurance companies in complex coverage litigation and alternative dispute resolution proceedings. She has represented London Market companies, syndicates and US based insurers in asbestos, pollution and health hazard related coverage matters.

Alison Green is joint leader of the Insurance and Reinsurance Group of 2 Temple Gardens, London. She specialises in insurance and reinsurance law, professional negligence and private international law. She has extensive experience of insurance and reinsurance litigation on coverage and avoidance disputes. Alison is Vice President of the British Insurance Law Association, she is recommended as a leading junior specialising in Insurance in Chambers and Partners Directory and she is described in the 2010 Directory as “an eminent authority in the insurance community”.

Joanne Jolly is a Partner in the Commercial Risk and Reinsurance Team in the London office of Barlow Lyde & Gilbert. Joanne is a Solicitor Advocate specialising in insurance and reinsurance dispute resolution and policy wording advice. Joanne has undertaken a broad range of complex arbitration, litigation and advisory work for insureds, insurers and reinsurers based in London and internationally.

Simon Kilgour is a Partner at Reynolds Porter Chamberlain where he leads their reinsurance practice and acts for domestic and overseas insurers and reinsurers on complex, high value or nonstandardcoverage disputes or market issues. His work is mainly international and includes advising on wordings, inspections, inwards and outwards coverage disputes and collections. He is the architect of RPC’s ReWorld reinsurance database, which won the technology award at the British Insurance Awards in July 2008.

Kevin Lazarus is a solicitor in the Legal and Compliance Team at Lloyd’s advising the corporation. Before joining Lloyd’s Legal in 2006 he was a solicitor in private practice including at Barlow Lyde & Gilbert where he specialised in reinsurance litigation. While at BLG, Kevin contributed to Reinsurance Practice and the Law, and he assisted with the current chapter on Lloyd’s.

Adrian Mecz is a Partner in the London office of Chadbourne and Parke LLP. He represents the London Market and international insurers and reinsurers in connection with high-value disputes, often involving banking and other financial lines risks, including professional indemnity. He is also active in contingency risk and has advised on a variety of policy wordings.

Michael Mendelowitz is a dispute resolution lawyer based in London. He is a partner at Norton Rose and head of the contentious insurance and reinsurance practice. Michael specialises in a wide variety of insurance and reinsurance matters his experience includes international casualty and property catastrophe, maritime, aerospace, professional indemnity and product liability classes of business.

Anthony Menzies is a Partner in the London office of Taylor Wessing and a member of the firm’s Insurance Group. He advises on direct and reinsurance claims and coverage disputes, often with an international element. He has previously practised in the Cayman Islands. He has advised numerous participants in the international insurance and reinsurance markets on disputes concerning D&O and E&O, marine and energy, property insurance and business interruption.

Phillippa Rowe is Senior Partner of independent reinsurance consultants Phillippa Ross & Co. Phillippa has over thirty years experience of insurance and reinsurance claims in Lloyd’s and the London Market and internationally. She began her reinsurance career with fifteen years with the Kiln Group at Lloyd’s. She currently acts as arbitrator, mediator, expert witness and technical consultant in a wide range of claims, wordings and market practice matters and writes, lectures and provides training courses on similar subjects.

Stephen Surgeoner is a Partner at Clifford Chance in London. He specialises in contentious and non-contentious insurance and reinsurance, Lloyds and professional indemnity. He joined Clifford Chance in 1992 and became Partner in 2002.

Vivien Tyrell is Partner at Reynolds Porter Chamberlain in London and until recently was a partner at Edwards Angel Palmer & Dodge. Vivien is an authorised insolvency practitioner and has advised on insurance insolvency since 1987. Vivien has prepared several schemes of arrangement of international insurance and reinsurance companies and advises on the insolvency aspects of contentious and potentially contentious matters arising in the insurance industry.

Peter Wedge is currently working as a consultant to the reinsurance industry. He has 24 years experience in the reinsurance world and is recognized as an expert in claims and run-off matters. At Swiss Re he was Legal Counsel, at Alea he was Head of Claims, and at SCOR he was Head of Discontinued Business and Global Head of Claim Inspections and Solutions. He is the author, co-author and editor of several books.

Past delegates’ comments

Past delegate’s comments

‘Speakers were really knowledgeable about all topics’

Fé Lopez-Collymore, Corporate Secretary and General Counsel, Guardian Holdings Ltd

‘Useful topics’ ‘Applicable to my work’

Sherry Goodman, Solicitor, Robin Simon LLP

‘Thank you very much for organising such a great event. When I saw the agenda I though it was too good to miss, I’m glad I didn’t miss it!’

Ozlem Gurses, Southampton University

‘Ben Ogden – top speaker. Brilliant delivery’
‘This was an opportunity to listen to and question quality speakers.
‘Enforces the importance of using appropriate wordings, testing existing wordings and getting wordings right’

Dean Dasley, Contract Specialist, Swiss re

‘Mr Merkin was excellent. Ben Ogden is an excellent and enthusiastic speaker’

Steven Abbott, Claims manager, Advent Underwriting Ltd

‘Excellent speakers, really clear on what they are talking about. Very good presentations which allow us to better understand some wordings issues’

Audrey Lecarpentier, Legal Advisor, AXA CESSIONS, France

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Client portfolio

Our client portfolio for this course includes the following companies:

A&L Goodbody Solicitors	Holman Fenwick & Willan	Office National Du Ducire (ONND)
ACE Tempest Re	Holman Fenwick Willan	Partner Re
AXA LM Switzerland	ING	PartnerRe Holdings Europe Ltd
AXA UK Plc	If P&C Insurance	Reed Smith Richards Butler
AXA Versicherung AG	Ince & Co International Law Firm	Robin Simon LLP
Advent Underwriting Ltd	International Insurance Management Services Ltd	Sagicor at Lloyds
Aksigorta AS	Kommuneforsikring	Scottish Re
Beachcroft Wansbroughs	LIGS Ltd	Southampton University
Beazley Group plc	Liberty Mutual Insurance Europe Ltd	Steamship Insurance Management Services Ltd
Blue Water Insurance ASA	Limit Underwriting Ltd	Steptoe & Johnson
Catlin	MUNCHENER RUCK	The Lawrence Re Ireland Ltd
Croatia Lloyd Ltd	Mannheimer Swartling	Transatlantic Reinsurance Co
Equitas Management Services Ltd	Markel International	Waltons & Morse
Euler Hermes	Marlborough Underwriting Agency Ltd	Whittington Insurance Services Ltd
GLOBAL Re	Mizuho International plc	William Fry Solicitors
Hannover Re	Munich Re AG	Willis Re Nordic AS
Hannover Rückversicherung AG	Norton Rose	Zurich Insurance Plc

Continuing professional development

Solicitors Regulation Authority

This course is accredited for 11.50 CPD hours (CPD reference CSC/FALI).

General Council of the Bar

This course is accredited for 11.50 CPD hours.

Chartered Insurance Institute

This event has been accredited by the CII and can be included as part of your CII CPD requirement should you consider it relevant to your professional development needs.