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Liability Insurance in International Arbitration: The Bermuda Form 3rd ed (eBook)

Richard Jacobs, Lorelie S. Masters, Paul Stanley QC

ISBN13: 9781509917273

Published: November 2021

Publisher: Hart Publishing

Country of Publication: UK

Format: eBook (ePub)

Price: £153.00
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9781509917259

£170.00

This is the third revised edition of what has become and 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, surprisingly, 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 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. The Bermuda Form is thus 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.

Subjects:: Insurance Law, eBooks, Arbitration and Alternative Dispute Resolution

Contents:: 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