The California Court of Appeals rejected defendants' appeal seeking to enforce an arbitration provision in a reinsurance participation agreement ("RPA"). Several months prior, the California Insurance Commissioner issued an administrative decision which challenged the same insurance program offered by the same defendants, finding the RPA to be unlawful and void for various reasons, including for the carrier's failure to file with and obtain approval from the Commissioner.

In its motion to compel arbitration, defendant argued that the language in the arbitration provision of the RPA which stated that "all disputes between the parties relating in any way to (1) the execution and deliver, construction or enforceability of this Agreement... shall be finally determined exclusively by binding arbitration in accordance with the procedures provided herein" required arbitration of disputes concerning the enforceability of the RPA, and "was a delegation clause that gave the arbitrator the sole and exclusive authority to rule on challenges to the enforceability of the arbitration agreement." However, the trial court determined that the plaintiff was asserting both the arbitration clauses and the delegation clauses themselves are illegal and unenforceable because they were not filed and approved by the Commissioner.

On appeal, the Court determined the trial court properly found plaintiff's challenge to the delegation clause was sufficient to require the court to rule on the question of enforceability, as courts are to resolve this question when the challenge is directed specifically to the delegation clause. In a similar matter, the Fourth Circuit recently held the court was the proper entity to resolve challenges to a delegation clause in a similar RPA.

Finding "that the arbitration and delegation provisions were prohibited because they were not properly filed with the Insurance Commissioner," the Court affirmed the trial court's decision that the arbitration and delegation clauses were unenforceable, as "a contract made in violation of a regulatory statute is void."

Nielsen Contracting, Inc. v. Applied Underwriters, Inc., D072393 (Cal. Ct. App. May 3, 2018).

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