Hunton Insurance Recovery Blog

In this final post in our Hunton & Williams Bermuda Form Arbitration Series, we discuss case law involving the Bermuda Form.  As explained in a prior post, the Bermuda Form includes an arbitration clause specifying that disputes be submitted to arbitration in London under the English Arbitration Act, but applying the substantive law of New York. The natural consequence of this arbitration provision is that reported decisions analyzing the substantive provisions of the Bermuda Form are few and far between.  Little binding precedent has developed—or will develop—regarding interpretation of the Bermuda Form given that awards are issued in confidential arbitration proceedings.  Nonetheless, several decisions in England and the United States offer insight into the handling and resolution of disputes involving Bermuda Form policies.

As explained in a prior post in the Blog’s Bermuda Form Arbitration Series, some time after the final hearing, the arbitration tribunal will issue an Award. This post focuses on challenges to and enforcement of that Award.

A prior post in the Blog’s Bermuda Form Arbitration Series discussed several strategic considerations for the discovery and briefing stages of Bermuda Form arbitrations. This post focuses on the final stages of arbitration: The final hearing, and awards of interest and costs.

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The Final Hearing

The presentation of evidence in the “final hearing” of a London arbitration differs substantially from traditional trial practice in the United States. A party’s direct or affirmative evidence is presented in writing in witness statements. Witnesses are presented live only for cross-examination. A party should offer all its witnesses for cross-examination; if a party does not do so, it risks that the arbitrators will not give a witness’s direct evidence much weight. This rule does not apply if the parties agree that a witness need not be presented for cross-examination.

A prior post in the Blog’s Bermuda Form Arbitration Series discussed several strategic considerations for London arbitrations involving the Bermuda Form, including considerations for initiating the arbitration, selection of arbitrators, and selection of counsel. This post focuses on strategic considerations for the discovery and briefing stages of London arbitrations.

In this post in the Blog’s Bermuda Form Insurance Arbitration Series, we discuss the use of London-based arbitration to resolve disputes involving the Bermuda Form.

In this post in the Blog’s Bermuda Form Insurance Arbitration Series, we discuss additional features of the Bermuda Form that policyholders should take into consideration.

In this post in the Blog’s Bermuda Form Insurance Arbitration Series, we discuss some key features of the Bermuda Form that policyholders should take into consideration.

The commercial insurance programs of many multi-national and United States businesses include “Bermuda Form” policies, a special policy form developed in Bermuda in the mid-1980s that includes unique provisions and provides for arbitration of disputes, usually in London under the substantive law of New York. These provisions provide challenges for United States policyholders and “stack the deck” in favor of the insurance companies that are repeat players in “Bermuda Form arbitrations.”   Policyholders should carefully consider purchase of Bermuda Form policies and ensure that they are structured as favorably as possible for the policyholder.  Presentation of claims under Bermuda Form policies can present special challenges.  Therefore, if claims arise, policyholders should consult counsel with expertise with Bermuda Form policies to ensure that the claim is presented with an eye toward the unique definition of “occurrence” and other provisions included in Bermuda Form policies.

In MF Global Holdings Ltd. et al. v. Allied World Assurance Co. Ltd. et al., No. 1:16-ap-01251 (Bankr. S.D.N.Y. Aug. 24, 2017), the United States Bankruptcy Court for the Southern District of New York ordered MF Global Holdings Ltd. and Allied World Assurance Co. Ltd. to arbitrate their $15 million errors-and-omissions coverage dispute in Hamilton, Bermuda. MF Global initiated an adversary proceeding against Allied World in the bankruptcy court after Allied World had refused to pay MF Global for amounts that MF Global returned to its customers' accounts as part of a settlement of claims against MF Global's former managers and directors. Allied World denied coverage under its "Bermuda Form" errors-and-omissions policy, claiming that this procedure was tantamount to deposit insurance, and not professional liability insurance, which is what errors-and-omissions coverage typically provides.