District of Puerto Rico Holds Article II of the Convention on Foreign Arbitral Awards Preempts the McCarran-Ferguson Act

In a dispute over whether an international insurance policy provided coverage for losses resulting from a fire that destroyed the insured property, the U.S. District Court for the District of Puerto Rico determined that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and chapter 2 of the Federal Arbitration Act (FAA) preempt the McCarran-Ferguson Act. The plaintiff had purchased from several Lloyd’s syndicates an insurance policy containing an arbitration provision and providing coverage for property located in Puerto Rico. The plaintiff argued that the McCarran-Ferguson Act “reverse-preempted” the Convention and the FAA such that Puerto Rican insurance law controlled whether the parties’ dispute was arbitrable. The plaintiff further argued, and the insurers did not dispute, that the Puerto Rico Insurance Code prohibits insurance policies from requiring arbitration of disputes. The insurers, however, argued that the Convention and FAA preempted Puerto Rico’s Insurance Code, and therefore the arbitration provision must be enforced.

The district court agreed with the insurers. The court noted that this “inquiry is the subject of a complex circuit split,” with the Second and Eighth Circuits holding that state anti-arbitration laws reverse-preempt the Convention through the McCarran-Ferguson Act because the Convention is not a “self-executing treaty,” while the Fourth and Fifth Circuits have held that the Convention is not reverse-preempted because, among other reasons, the McCarran-Ferguson Act is “limited to the domestic realm and is thus not meant to grant state anti-arbitration laws reverse preemption against treaties or federal laws dealing with international relations.”

The Puerto Rico district court began its analysis by noting that the supremacy clause of the U.S. Constitution provides that treaties “shall be the supreme Law of the Land,” and the U.S. Supreme Court has held that courts must regard a treaty as “equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.” Such a treaty is described as “self-executing.”

Because Article II of the Convention “unequivocally regulates the enforcement of international arbitration agreements and directly instructs courts to enforce its provisions without the need for legislative intervention,” the court found it to be self-executing. The court noted that Article III, on the other hand, may not be self-executing, but the Supreme Court has previously stated that portions of a treaty may be self-executing while others are not, so that finding is not an impediment to holding that Article II of the Convention is self-executing.

The Convention was signed by the United States in 1959 and ratified in 1970, whereas the McCarran-Ferguson Act was enacted in 1945. When a treaty and a federal statute conflict, the one last in date controls. Therefore, because the court found the Convention to be self-executing and therefore on par with an act of the legislature (i.e., a federal statute), and because the Convention was adopted and ratified after the McCarran-Ferguson Act was enacted, the Convention “is fully invocable and is not subject to the [McCarran-Ferguson Act’s] reverse preemption.”

Green Enterprises, LLC v. Dual Corp. Risks Ltd., No. 3:20-cv-01243 (D.P.R. June 15, 2021).