ARIAS US Form Plays Major Role in Court’s Decision to Seal Documents

Arbitration, Blog, Compel arbitration 2 Minutes
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Whether courts will seal reinsurance arbitration documents when the parties come to court for judicial relief has been a significant topic for several years. Most courts refuse to seal arbitration information when motions to vacate or confirm an arbitration award are made. But when the controversy is over whether arbitration should be compelled, sometimes the result is different. In a recent case, the court agreed to seal arbitration-related documents in large part because of the ARIAS U.S. confidentiality agreement.

In Washington Schools Risk Management Pool v. American Re-Insurance Co., No. C-21-0874-LK (W.D. Wash., Apr. 20, 2022), a Magistrate Judge was asked to seal materials filed with reply papers on applications to declare that the arbitration clause was inapplicable to the dispute and to compel arbitration. The court granted the motion largely relying on the reinsurer’s representation-which was not controverted by the cedent-that the parties would enter into a confidentiality order/agreement in the form of the ARIAS-U.S. model and, therefore, sealing the materials in the reply papers was appropriate.

The case dealt with a municipal pool seeking reinsurance payments from several reinsurers. The magistrate judge had already recommended that the motion to compel arbitration be granted and that the pool’s action be dismissed. On the application by the reinsurer to seal materials in its reply brief, the court noted that the reinsurer argued that the reinsurance industry’s standard arbitration confidentiality form, the ARIAS-U.S. Form Confidentiality Agreement and Protective Order, requires parties to seek to file information that pertains to arbitration (like the Arbitration Information) either in redacted form or under seal in court.

Even though neither party had yet signed a confidentiality agreement, the reinsurer told the court-again unopposed-that “there appears to be a substantial likelihood that they (and the Arbitration Panel) ultimately will execute the ARIAS-US Form, `as is’ or as modified in response to revisions to be proposed by [the pool].” Accordingly, the reinsurer argued that the arbitration panel may require the parties to go back to court to ask that these arbitration materials be sealed.

The court took it on faith that some form of the ARIAS-U.S. confidentiality agreement will apply to the arbitration requiring the parties to ask the court to seal any arbitration material submitted to the court. Given the lack of opposition to the motion by the cedent, the strong likelihood that the ARIAS-U.S. form would be used and that the form requires arbitration information to be sealed, the court found that sealing the reply materials was warranted.

Published by Larry P. Schiffer, Schiffer Law & Consulting PLLC

After 38-years with boutique and global law firms, Larry P. Schiffer launched an independent legal and consulting practice, Schiffer Law & Consulting PLLC, where he provides services as a lawyer, counselor, consultant, mediator, arbitrator and expert witness. He practices commercial, insurance, and reinsurance litigation, arbitration, and mediation. He provides advice on a wide variety of insurance and reinsurance issues, including claims and disputes, policy wording analysis and drafting, insurance insolvency issues, due diligence for transactions and have insurance or reinsurance components, insurance and reinsurance education and other advice. He is available to appear for clients outside of NY at mediations and conferences as needed on a per diem basis. He is active in legal and trade associations where he has held various leadership positions. He has lectured and has been widely published on reinsurance and other insurance topics. He serves as an Expert Commentator on reinsurance for IRMI.com and co-authored the chapter on reinsurance in the New York State Bar Association’s Insurance Law Practice treatise. He is the editor of the ARIAS•U.S. Quarterly. Mr. Schiffer received his J.D. from Albany Law School, where he graduated cum laude, was a member of the Albany Law Review and a member of the Justinian Society, and received his B.A. magna cum laude from Brooklyn College of the City University of New York. He was admitted to practice in New York in 1980.

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