Affirmative Defense or Exclusion

On occasion, we see filings where the responding party argues that the damages sought by the recovering party are not legally recoverable, whether by statute or some other reason. The argument is not based on liability (i.e., insured not liable or negligence law bars recovery) or the amount of damages sought.
 
Per Article Second Exclusions (b), compulsory intercompany arbitration lacks jurisdiction if such claim “creates any cause of action or liabilities that do not currently exist in law or equity.” Therefore, an argument regarding the legal right to recover the damages sought is an affirmative defense/exclusion to compulsory arbitration.