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Disputes under “Bermuda Form” insurance policies are almost invariably determined by confidential arbitration, but in Astrazeneca v Ace and XL the parties agreed to waive the arbitration provision and their dispute was dealt with by the English Commercial Court and ultimately by the Court of Appeal. The case accordingly represents the first occasion on which the English courts have had to consider the proper construction of the Bermuda Form. This lecture considers the Astrazeneca decision, in particular the impact of the parties’ decision to have their policy governed by English law, rather than New York law as is usual, and the extent to which cover is provided under the Bermuda Form for defence costs in the absence of liability.
David Edwards, QC of 7 King’s Bench Walk appeared as leading counsel for Ace and XL, who were successful both in the Commercial Court and in the Court of Appeal. He is an insurance specialist, with extensive experience of the Bermuda Form.