Liability Insurance in International Arbitration: The Bermuda Form

Foreword to the First Edition
Preface
Contents
About the Authors
Table of Cases
Table of Legislation
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
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
	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
Appendix
	English and New York Law: Sources and Legal Approach
	English Law for New York (And Other United States) Lawyers
	New York Law for English Lawyers
	Cultural Differences
Bibliography
Index