A Texas federal court addressed a dispute as to whether the insurance policy at issue contained an arbitration agreement and whether it required arbitration of the particular claim. Looking at the “Law and Practice” provision of the policy, the Court found it contained an implicit delegation clause because it required arbitration under English law. “Incorporation of English law includes English arbitration law, which unambiguously provides that arbitrators have the power to decide threshold questions as a default unless the parties agree to the contrary. The parties did not do so here. By agreeing to arbitrate under English law, the parties clearly and unmistakably consented to delegate to the arbitrator the power to make threshold determinations about what claims are arbitrable.”

Furthermore, the policy’s choice of law and jurisdiction are governed by the “Law and Practice” clause, which stated arbitration in England is required “notwithstanding anything else to the contrary.” As a final point, the policy stated “in the event of a conflict between this clause and any other provision of this insurance, this clause shall prevail and the right of either party to commence proceedings before any other Court or Tribunal in any other jurisdiction shall be limited to the process of enforcement of any award hereunder.”

The temporary restraining order was dissolved, and the parties were ordered to arbitrate in England.

Gemini Ins. Co. v. Certain Underwriters at Lloyd’s London Subscribing to Policy No. B0973MA1305152 Issued Through the Office of Osprey Underwriting Agency Limited, No. 4:17-cv-01044 (USDC S.D. Tex., April 13, 2017)