Liability Insurance in International Arbitration: The Bermuda Form by Richard Jacobs QC, Lorelie S. Masters, and Paul Stanley, and Arbitration Law of Japan by Masaaki Kondo, Takeshi Goto, Kotatsu Uchibori, Hiroshi Maeda, and Tomomi Kataoka

Abstract

Liability Insurance in International Arbitration: The Bermuda Form, Richard Jacobs QC, Lorelie S. Masters and Paul Stanley. Published by Hart Publishing, Oxford (359 pp.). Price £75. ISBN 4-7857-1195-7 Arbitration Law of Japan, by Masaaki Kondo, Takeshi Goto, Kotatsu Uchibori, Hiroshi Maeda and Tomomi Kataoka. Published by Shojihomu Co., Ltd., Tokyo (2004, vii + 311 pp. + references). Hardcover. Price ¥6,720. ISBN 4-7857-1195-7 The authors have tackled the complex subject of how the ‘Bermuda Form’ of excess liability insurance coverage operates. As the authors recognise, since its origins nearly 20 years ago, the Form has taken a number of different versions, some of which were quite different in language and intent from the recent XL 004 Form on which the authors focus. In whatever form, the Bermuda Form remains complex, the claims made on it are of high value, the policy-holders are generally sophisticated (but have incurred significant liabilities), and the facts giving rise to disputes are often difficult and sometimes quite controversial. Insured and insurer have agreed that the mechanism for resolving issues is arbitration, usually in London, away from publicity at the time and subsequently, and away from the pressures of public litigation. The decision to arbitrate removes from public scrutiny any examination of awards and prevents the build up of case law; but it also enables arbitrators (usually highly respected senior lawyers) to reach decisions in their own way. It allows parties to run arguments they choose with only the arbitrators and the opponent to hear. This approach is a reflection of the views of the originators of the Form, who knew that the Form had to be broad and commercial, but that not every point was expressly addressed to the satisfaction of all. The Form’s commercial success in evolving into a different world for insureds and insurers alike is a tribute to those involved over the years. Much of this book would be accepted as uncontroversial by the insurance community and their legal advisers. There is much useful material, including a useful chapter on the choice of law issues under the Bermuda Form. However, the book on occasions strays into advocacy for the policy-holder and reflects the arguments of …