The Bermuda Form — actual or alleged liability?
Addleshaw Goddard’s e-alert in March last year, ‘Actual or Alleged Liability?’ reported on the Commercial Court judgment of Flaux J in relation to two preliminary issues arising in the context of AstraZeneca Insurance Co Ltd’s claim against its excess reinsurers, XL and ACE, to recover sums paid in its capacity as captive insurer in relation to the Seroquel litigation.
The judgment was the first English Commercial Court decision addressing Bermuda Form construction issues. Key to the first-instance decision was the fact that the standard Bermuda Form policy wording (XL004) had been amended to include English law as the governing law (instead of, as is usual in such policies, New York law). The parties agreed to waive the arbitration clause so that the issues could be determined in court.
In his first-instance decision, Flaux J found in favour of the defendant reinsurers, as follows…
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