International arbitration and the Bermuda Form: a junior barrister’s perspective

Josephine Higgs, a junior English barrister at 7 King’s Bench Walk (a leading set of barristers’ Chambers in London), has just written an insightful article for this month’s Counsel Magazine on the practice of international arbitration of commercial disputes.

This is what she has to say about her experience of the Bermuda Form insurance policy:

The ‘Bermuda Form’ continues to provide a steady source of arbitration work. The Bermuda Form Policy is an insurance policy providing catastrophe liability cover. The insurance is governed by New York substantive law, but (typically) the seat of the arbitration is in London, and the arbitration is subject to the Arbitration Act 1996. As a result, English solicitors are often jointly instructed with US lawyers, and English counsel are instructed to act as advocates. The sums involved are usually substantial (almost invariably in excess of US$25m and sometimes upwards of US$100m), and so the main advocate at the substantive hearing is usually a Silk, but junior counsel might undertake some cross-examination of more minor witnesses or appear as an advocate in interlocutory hearings. Bermuda Form arbitrations are a notoriously fertile ground for disputes about disclosure (eg should standard disclosure be ordered, or should the IBA Rules for the Taking of Evidence be applied, does English or New York law govern issues of privilege?), and other interim procedural issues. The arbitrations generally take place in London, but occasionally the substantive hearing is held in Bermuda so junior counsel could theoretically get some summer sunshine, although it has never proved the case for me“.

Summer sunshine is not the only good reason to hold an arbitration in Bermuda (a topic on which I shall write separately), but it can certainly help lift the spirits of our visiting lawyers!



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