Liability Insurance in International Arbitration

The Bermuda Form
3. Auflage 2021
ISBN: 978-1-5099-1725-9
Verlag: Bloomsbury Publishing PLC

Buch, Englisch, 488 Seiten, Hardback, Format (B × H): 250 mm x 175 mm, Gewicht: 1000 g

This is the third revised edition of what was described by the English Court of Appeal in C v D as the "standard work" on Bermuda Form excess insurance policies. The Form, first used in the 1980s, covers liabilities for catastrophes such as serious explosions or mass tort litigation and is now widely used by insurance companies. It is unusual in that it includes a clause requiring disputes to be arbitrated under English procedural rules in London but subject to New York substantive law. This calls for a rare mix of knowledge and experience on the part of the lawyers involved, each of whom is required to confront the many differences between English and US law and legal culture. In addition, since the awards of arbitrators are confidential and are not subject to the scrutiny of the courts, the book helps professionals understand the Form's lengthy and complex provisions.

The book, first published in 2004, was the first comprehensive analysis of the Bermuda Form. It is frequently cited in Bermuda Form arbitrations and was the joint winner in 2012 of British Insurance Law Association Book Prize for the most notable contribution to literature in the field of law as it affects insurance. It offers a detailed commentary on how the Form is to be construed, its coverage, the substantive law to be applied, the limits of liability, exceptions, and, of course, the procedures to be followed during arbitration proceedings in London. The book will prove invaluable to lawyers, risk managers, and executives of companies which purchase insurance on the Bermuda Form, and to clients, lawyers or arbitrators involved in disputes arising therefrom.

This title is included in Bloomsbury Professional's International Arbitration online service.

Autoren/Hrsg.

Masters, Lorelie S

Jacobs, Richard

Kc, Paul Stanley

Fachgebiete

• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht Internationales Strafrecht, Internationales Verfahrensrecht

Inhaltsverzeichnis

1. THE LEGAL AND ECONOMIC ORIGINS OF THE BERMUDA FORM

Policy Forms and Liability Problems

US Legal Decisions on Insurance Coverage Issues

The Creation of ACE and XL

Key Features of the Bermuda Form

2. THE BERMUDA FORM: ITS BASIC STRUCTURE

An Occurrence Reported Form

The Period of Cover: Coverage A and B

Limits

The Excess Point

The Inception and Retroactive Coverage Dates

The Exclusions

The Conditions

Schedules and Endorsements

3. CHOICE OF LAW ISSUES UNDER THE BERMUDA FORM

Identifying the Relevant Governing Law

The Division between Substance and Procedure

4. INTERPRETATION OF THE BERMUDA FORM AND THE MODIFICATION OF NEW YORK LAW

The Structure of the Modification of the New York Law Proviso

Interpretation of Insurance Contracts: The Basic Approach

Interpretation of the Modification of the New York Law Proviso

The 'Forbidden Grounds'
Fruit of the Poisonous Tree?

5. THE COVERAGE CLAUSE

Insurance against Liability

The Insured

Ultimate Net Loss/All Sums Insurance. For Damages

Judgments

Settlements by the Policyholder

Mitigation of Damages

Allocation of Payments
Personal Injury, Property Damage and Advertising Liability

Personal Injury

Property Damage

Advertising Liability

Other Aspects of the Coverage Clause
6. THE DEFINITION OF 'OCCURRENCE'

Introduction

'Occurrence': The Basic Definition

Aggregation

Expected or Intended Injury 6
7. FORTUITY, EXPECTED OR INTENDED, AND THE 'MAINTENANCE DEDUCTIBLE'

Introduction

Fortuity and Related Doctrines

Expectation and Intention

The 'Maintenance Deductible'

8. NOTICE OF OCCURRENCE

Introduction

Method of Giving Notice

Notice as a Condition of Coverage

Notice as a Trigger of Coverage: Legal and Practical Considerations

9. ARTICLE II: THE EXCESS POINT AND LIMITS OF LIABILITY

The Excess Point

The Other Insurance Condition

The Policy Limits

Joint Ventures, Partnerships and Minority Interests

10. THE EXCLUSIONS

Introduction 6
Interpretation of Exclusion Clauses: General Principles and the Effect of the Bermuda Form's Modification of New York Law

Causation

The Specific Exclusions in the Bermuda Form: Introduction

The 'Prior to Inception or Retroactive Coverage Date' and 'Other Insurance' Exclusion

The 'Workers' Compensation, etc' Exclusion

The 'Professional Services' Exclusion

The 'Owned Property; Care, Custody or Control, etc' Exclusion

The 'Products Liability' Exclusions ('Efficacy, Loss of Use, etc')

The 'Advertising' Exclusion

The 'War' Exclusion

The 'Toxic Substances' Exclusion

The 'Aircraft' Exclusion

The 'Watercraft' Exclusion

The 'Pollution' Exclusion

The 'Nuclear' and the 'Radioactive Contamination (Outside the United States)' Exclusions

The 'Erisa' Exclusion

The 'Repetitive Stress' Exclusion

The 'Securities, Antitrust, etc' Exclusion

11. THE CONDITIONS

The Premium Condition

The Inspection Condition

The Cross-liability Condition

The Notice of Occurrence Condition

The Assistance and Co-operation Condition

The Appeals Condition

The Loss Payable Condition

The Representation Condition

The Other Insurance Condition

The Subrogation Condition

The Changes Condition

The Assignment Condition

The Cancellation Condition

The Currency Condition

The Arbitration Condition

The Conflicting Statutes Condition

The Law of Construction and Interpretation Condition

The Proration of Losses Condition

The Liability of the Company Condition

The Policy Extension Condition
The Reinstatement Condition

The Discovery Period Condition

The Expiration Date Condition

The Former Subsidiaries, Affiliates and Associated Companies Condition

The Notice Condition

The Headings Condition

12. MISREPRESENTATION AND NON-DISCLOSURE

Introduction

Non-Disclosure under New York Law

Misrepresentation under New York Law

Remedy for Misrepresentation

13. WAIVER AND ESTOPPEL AND RESERVATIONS OF RIGHTS

Introduction

Waiver

Estoppel

The 'Changes' Condition in the Bermuda Form

14. COMMENCING A BERMUDA FORM ARBITRATION AND APPOINTING ATTORNEYS AND ARBITRATORS

Introduction

Legal Representation

The Commencement of Arbitration

The Selection of an Arbitrator

Appendix: Notice to Commence Arbitration

15. THE COURSE AND CONDUCT OF A BERMUDA FORM ARBITRATION IN LONDON

Introduction

The Overall Shape of the Arbitration

The 'Pleadings' Stage

The First Order for Directions

Confidentiality

Discovery of Documents

Preliminary Issues or 'Bifurcation'

Witness Statements

Expert Evidence

Preparation for the Substantive Hearing

The Substantive Hearing

The Award and Post-Award Events

Appendix 1: First Order for Directions

Appendix 2: Protective Order

16. DISCOVERY, PRIVILEGE AND WAIVER OF PRIVILEGE

General Principles

Discovery in Arbitration in Practice

Legal Professional Privilege

Waiver of Privilege

Confidential Documents

Other Forms of Discovery

17. INTEREST AND COSTS

Interest

Costs

Über Autor(innen)

Jacobs, Richard
Sir Richard Jacobs practised as a barrister at Essex Court Chambers, UK, for nearly 40 years, specialising in commercial law. In 2018, he was appointed a judge in the Queen's Bench Division of the English High Court, where he spends most of his time on commercial cases in the Commercial Court.

Kc, Paul Stanley
Paul Stanley KC was educated at Cambridge University and Harvard Law School and is a barrister at Essex Court Chambers, UK, specialising in commercial law, including insurance and arbitration law. He appears as leading counsel in court and arbitration proceedings and is the author of The Law of Confidentiality: A Restatement (Hart Publishing, 2008).

Masters, Lorelie S
Lorelie S Masters was educated at Georgetown University and Notre Dame Law School. She is a Partner at Hunton & Williams LLP, in Washington, DC, USA, where she advises and represents policyholders in insurance coverage and litigation. She is co-author of a treatise entitled Insurance Coverage Litigation (Aspen Publishers, 2nd Edition, 1999 and Supps).

Sir Richard Jacobs is a judge in the Queen's Bench Division of the English High Court, where he spends most of his time on commercial cases in the Commercial Court.
Lorelie S Masters is a Partner at Hunton & Williams LLP in Washington, DC, USA, where she advises and represents policyholders in insurance coverage and litigation.

Paul Stanley KC is a barrister at Essex Court Chambers, UK, specialising in commercial law, including insurance and arbitration law.