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Liability Insurance in International Arbitration

The Bermuda Form

By: Richard Jacobs QC, Lorelie S Masters, Paul Stanley QC
Media of Liability Insurance in International Arbitration
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Published: 15-07-2004
Format: Hardback
Edition: 1st
Extent: 400
ISBN: 9781841134673
Imprint: Hart Publishing
Dimensions: 234 x 156 mm
RRP : £89.00

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Loren Epson

About Liability Insurance in International Arbitration

The Bermuda Form excess insurance policy covers liabilities for catastrophes such as serious explosions or mass tort litigation. It is an 'occurrence reported' policy developed in the 1980's by two Bermudian insurance companies,Ace and XL, and it is now widely used by other insurance companies as well. It includes a clause requiring disputes to be arbitrated under English procedural rules in London but, very unusually, subject to New York substantive law. This calls for an unusual mix of knowledge and experience on the part of the lawyers involved, each of whom will also be required to confront the many differences between English and US legal culture.
A related feature of the Form is that the awards of arbitrators are confidential and not subject to the scrutiny of the courts. Therefore, while many lawyers have been involved in litigating on the Bermuda Form their knowledge remains locked away. Thus, despite its considerable importance, the Bermuda Form is not well understood, a situation not helped by the lack of publications dealing with it. Accordingly, those required to deal with the Form professionally are confronted with a lengthy and complex document, but with very little to aid their understanding of it.
This unique and comprehensive work 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. This is a book which will prove invaluable to lawyers, risk managers, and executives of companies which purchase insurance on the Bermuda Form, and clients, lawyers or arbitrators involved in disputes arising therefrom.

Table Of Contents

1 Legal and economic background to the Bermuda form
2 New York law applied in a London arbitration: the legal consequence
3 The Bermuda Form: its basic structure
4 The coverage clause (Clause 1)
5 The occurrence definition
6 Fortuities,expected and intended and the maintenance deductible
7 Notice of Occurrence
8 The Limits of Liability Clause (Clause 2)
9 The Exclusions (Clause 4).
10 The Conditions (Clause 5/ 6)
11 Misrepresentation and Non-Disclosure
12 Waiver, estoppel and reservation of rights
13 The course and conduct of a London arbitration: English and American cultural differences
14 Discovery, privilege and waiver of privilege
Appendix 1 Pro-forma documents: notice of occurrence, and notice of commencement of arbitration
Appendix 2 Copies of the policy forms used over the years by Bermuda insurers, ACE and XL


“It's exciting to find something entirely new and innovative. The authors have pioneered into an untrodden region. The book has a playful, spirited quality one does not often see in an insurance treatise...its distinguished authors have managed not only to keep the tone fresh and bright but also to pack in a lot of helpful information.” –  Helen Anne Boyer, The Insurance Coverage Law Bulletin

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