Sir Richard Aikens
Brick Court Chambers
The English conflict of laws rules on “applicable law” to insurance contracts and the arbitration agreements that are often found in them have been affected by Brexit, the Supreme Court’s decision in Enka v Chubb and now the Arbitration Bill 2023. This talk attempts to summarise where we are now and look at what the future may hold.
Professor Jay Feinman of Rutgers Law School (USA) will be in conversation with Professor James Davey of Southampton University (UK).
In the past few years the insurance community has paid increasing attention to the “protection gap”—the extent to which significant losses are not covered by insurance. The Geneva Association, the insurers’ global think tank, has pioneered the concept, and it has become widely adopted. Insurance always presents gaps in coverage; not all risks are insured or indeed insurable. The protection gap concept necessarily embodies a normative component—that insureds with limited coverage, potential insureds who lack insurance, and society as a whole suffer when certain gaps in insurance exist. It is this normative component of the protection gap concept that has not been fully developed and that is the subject of this presentation.
Professor Feinman will consider examples from the US market and issues of global importance.
Jay M. Feinman is an expert in insurance law, torts, and contract law. The recipient of numerous teaching awards, he’s also written seven books and more than 60 scholarly articles. He is a member of the American Law Institute and other professional organizations and is an advisor to United Policyholders.
BILA will be continuing its Autumn virtual lecture series on 28 September at 1 pm on ‘Tracing the Test Case’. – A panel discussion on the recent FCA Judgment. Professor Rob Merkin QC will be in conversation with Leigh-Ann Mulcahy QC, Ben Lynch QC and Shirley Beglinger. This will undoubtedly be an insightful discussion with leading professionals from the insurance sector. Delegates are free to send in any questions they would like answered before 28th September.
Rob Merkin QC is Professor of Law at the Universities of Exeter and Reading, and Special Counsel at Duncan Cotterill. He is past president of BILA and honorary life president of AIDA. Rob has written widely on insurance and reinsurance matters, and co-edits the Lloyd’s Law Reports. Rob also sits as an arbitrator.
Leigh-Ann Mulcahy QC of Fountain Court Chambers is a leading commercial disputes silk specialising in the field of Insurance & Reinsurance. She is also a Deputy High Court Judge and commercial arbitrator. Nominated for Insurance Silk of the Year in 2016, she is currently acting for the FCA in the Test Case. Chambers & Partners recommend her as “a very clear, polished and persuasive advocate who definitely has the ear of the court. She is an incredibly hard-working and respected silk. Absolutely excellent.”
Ben Lynch QC is a highly regarded commercial silk, who has been described in the directories as “a barrister with a frighteningly astute mind, who doesn’t leave any stone unturned”. Ben has a specialist practice in insurance and reinsurance, acting in various landmark cases. He is also an editor of MacGillivray on Insurance Law.
Shirley Beglinger joined Swiss Re in 1988 after a decade in banking and asset management. Since leaving Swiss Re Shirley has worked in the Chairman’s office at Aon and as Operational Risk Lead at Marsh as well as in her current role as independent (re)insurance consultant. Shirley is an experienced board member, underwriter, underwriting peer reviewer and operational risk expert with extensive experience as an expert witness in insurance, reinsurance and broking disputes. Her main specialism is in financial lines underwriting (D&O, Crime, Professional Indemnity), property & casualty and business interruption at both the insurance and reinsurance level, and is currently advising on Covid19 claims in these areas.
BILA will be commencing its Autumn virtual lecture series on 15 September at 1 pm with a talk by Andrew Burns QC of Devereux Chambers. Andrew will be looking at current issues in employment liability insurance, a topic of particular relevance in the light of recent debates about the return to work following the COVID lockdown. What are the EL implications for UK businesses of widespread home-working? Will EL policies cover claims against employers by workers injured or killed by COVID and what are the causation hurdles? Also Andrew will give an update on recent EL case law in insurance and reinsurance arising from asbestos claims, look at issues involving employers under the Third Parties (Rights against Insurers) Acts and touch upon whether directors can be sued by workers for failing to insure them.
Andrew Burns QC is a leading silk in insurance and reinsurance disputes appearing in the Supreme Court in Durham v BAI (Run Off) Ltd (the Employers’ Liability Policy Trigger Litigation), in asbestos insurance cases such as Redman v Zurich and acted in litigation relating to 9/11 reinsurance disputes (Simmonds v Gammell and Allianz v Tonicstar).
Andrew acts for a range of insurers in coverage disputes and policy interpretation points. His insurance practice is strong and he acts for well-known city insurance firms. He is an editor of The Law of Reinsurance with Colin Edelman QC. Andrew represented successful insureds and their families in the Supreme Court in Employers’ Liability Policy Trigger Litigation  1 WLR 867,  ICR 574,  Lloyd’s Rep. IR 371 about the coverage of Employers’ Liability insurance policies in respect of damages for mesothelioma victims. He appeared in Redman v Zurich Insurance Plc  1 WLR 280 concerning long-tail claims under the Third Party (Rights against Insurers) Act 2010.
We are delighted to announce our next lecture hosted by James Davey alongside our two speakers, Professor Soyer and Dr Livashnee Naidoo.
Professor James Davey is Professor within Southampton Law School at the University of Southampton. He joined Southampton Law School in 2014. His research and teaching interests lie in contract and commercial law generally. He notably harbours a strong interest in the Law and Economics of insurance, a strong field of study in the US but not generally intensively considered in the UK where insurance law research tends to be centred on contract law.
Professor Soyer is Professor of Commercial and Maritime Law and is also the Director of the Institute of International Shipping and Trade Law. He is a member of the British Maritime Law Association and British Insurance Law Association. He is the author of Warranties in Marine Insurance published by Cavendish Publishing (2001) and Marine Insurance Fraud published by Informa Law (2014). He has also published extensively in elite law journals such as Lloyd’s Maritime and Commercial Law Quarterly, Journal of Business Law, Cambridge Law Journal, Law Quarterly Review, Torts Law Journal and Journal of Contract Law. His book on Marine Warranties was the joint winner of the Cavendish Book Prize 2001 and was awarded the British Insurance Law Association Charitable Trust Book Prize in 2002, for the best contribution to insurance literature. A third edition of this book was published in 2016. Similarly, his new book on Marine Insurance Fraud was awarded the same BILA Prize in 2015. He is the also the general editor of the Reforming Marine and Commercial Insurance Law published by Informa in 2008 and one of the editors of Pollution at Sea: Law and Liability published by Informa in 2012, Carriage of Goods by Sea, Land and Air published by Informa in 2013, Offshore Contracts and Liabilities published by Informa Law in 2014, Ship Building, Sale and Finance published by Informa Law in 2015, International Trade and Carriage of Goods by Sea published by Informa Law in 2016, Charterparties: Law, Practice and Emerging Issues published by Informa in 2017, Maritime Liabilities in a Global and Regional Context published by Informa in 2018 and New Technologies, Artificial Intelligence and Shipping Law in the 21st Century published by Informa in 2019. He is on the editorial board of the Journal of International Maritime Law, Shipping and Trade Law and editorial committee of the Lloyd’s Maritime and Commercial Law Quarterly (International Maritime and Commercial Law Yearbook). He currently teaches Charter Parties and Carriage of Goods by Sea and Marine Insurance on the LLM Programme and also is the director of Commercial, Maritime and International Trade LLM Programmes.
Dr Livashnee Naidoo is a Lecturer in Commercial Law at the University of Glasgow. She studied law (cum laude) at the University of KwaZulu-Natal, and holds a LLM in Shipping Law (with distinction) from the University of Cape Town. She completed her PhD in Marine Insurance Law at the University of Southampton which was fully-funded as a Commonwealth Scholar. Liv was in legal practice as a lawyer and notary specialising in International Trade and Shipping Law where she acted for ship owners, operators and their insurers. Her areas of expertise are in Shipping and Insurance Law with a particular focus on Contract Law and Theory, digitisation and sustainability. Liv is a Member of the Institute of Chartered Shipbrokers, the Society of Legal Scholars, and the Maritime Law Association.
Professor Schwarcz will discuss the ongoing controversy in the United States surrounding the availability of business interruption insurance in connection with the COVID-19 Pandemic. His talk will review the key coverage issues that are currently being litigated in the United States, the size and scale of this litigation, and its likely resolution in the months and years to come. Professor Schwarcz will also discuss various state and federal legislative proposals designed to address the availability of business interruption coverage for future pandemics and, in some cases, to retroactively mandate such coverage for the current pandemic.
Daniel Schwarcz is the Fredrikson & Byron Professor of Law at the University of Minnesota Law School. He is an award-winning teacher and scholar. His research focuses on a broad range of issues in insurance law and regulation, spanning systemic risk, regulatory federalism, consumer protection, employer-sponsored health insurance, and insurance coverage litigation. In 2017, the American Law Institute awarded Schwarcz its highly selective Young Scholars Medal, which recognizes the scholarship of one or two outstanding early-career law professors whose work has the potential to influence improvements in the law. He has also been awarded the Liberty Mutual Prize, which is given annually for the most outstanding article on property and casualty insurance law.
Schwarcz’s scholarship has been published in a wide range of leading law reviews and journals, such as the University of Chicago Law Review, Virginia Law Review, and the Journal of Empirical Legal Studies. He is also a co-author of the leading insurance law casebook in the country, Insurance Law and Regulation (7th edition), which has been used as the principal text in courses on insurance law in more than 100 American law schools. Media outlets such as the New York Times, Wall Street Journal, and National Public Radio have covered Schwarcz’s scholarship. He regularly testifies to U.S. Congressional committees on insurance matters, and he has served as an expert witness in a wide range of insurance disputes. From 2007 to 2014, he served as a consumer representative at the National Association of Insurance Commissioners.
Schwarcz teaches courses on contract law, insurance law, the regulation of financial institutions, commercial law, health care regulation and finance, and judicial opinion writing. He has twice received teaching awards at the Law School, in 2008 and 2012.
Schwarcz earned his A.B., magna cum laude, from Amherst College and his J.D., magna cum laude, from Harvard Law School. While in law school, he was an articles editor for the Harvard Law Review and a John M. Olin Fellow in Law and Economics. After law school, he clerked for Judge Sandra Lynch of the United States Court of Appeals for the First Circuit and practiced at the law firm Ropes & Gray, where he worked mainly on insurance law matters. He subsequently spent two years as a Climenko Fellow and Lecturer on Law at Harvard Law School.
This webinar will:
- Review the general principles of vicarious liability in employment and non-employment situations
- Analyse and explain the impact of the recent Supreme Court decision in Wm Morrison Supermarkets plc v Various Claimants  UKSC 12
- Take stock of the up-to-date application of vicarious liability in employment and non-employment situations
Jonathan Bellamy, Barrister at 39 Essex Chambers, has an established litigation, arbitration and advisory practice in insurance law. His insurance and reinsurance work covers all issues arising in policy interpretation and coverage, including fair presentation of risk, breach of warranty, misrepresentation and fraud. He has dealt with the full range of indemnity and contingency policies, including public liability, professional indemnity, property, business interruption, product liability, contractors’ risks, NHBC, environmental remediation, cyber, D&O, crime/fraud, credit, fidelity, political risk and nuclear risks. In reinsurance matters he has experience in proportional and non-proportional contracts. He also advises on information law, including GDPR and data breach.
We are delighted to announce our next virtual lecture of a brand-new series.
Our second lecture will be given by Professor Tom Baker on 22nd May 2020 on The Restatement of Liability Insurance.
In May 2019 the American Law Institute published the Restatement of the Law Liability Insurance, a project ten years in the making that represented the influential ALI’s first foray into the insurance field. Tom Baker, the Reporter for the Restatement, will explain the ALI and its Restatements, and he will offer his views on why this Restatement appears so vexing to some leaders in the insurance industry.
Tom Baker is the William Maul Measey Professor at the University of Pennsylvania, where he is on the faculty of the Law School and the Wharton School of Business. He is the Reporter for the American Law Institute’s recently published Restatement of the Law Liability Insurance. He has conducted research on many topics in the insurance field, including property and casualty insurance, health insurance, the behavioural economics of insurance, and the historical development of insurance ideas and institutions. His most recent completed research project examined the rise of the insurance runoff market. His current research focuses on cyber insurance, aggregate insurance litigation, and the regulation of automated financial decision support. From 1997 to 2008 he was the inaugural Connecticut Mutual Professor and Director of the Insurance Law Centre at the University of Connecticut. In August 2013 he received the Robert B. McKay award, a lifetime scholarly achievement award given by the Tort Trial and Insurance Practice Section of the American Bar Association. His B.A. and J.D. are from Harvard University.
Business interruption insurance seeks to return to the assured the amount of profit it would have earned had there been no interruption to the business’ operations. Needless to say, in recent weeks the cover for business interruption has been under specific scrutiny. In this seminar, we will discuss issues relating to the interpretation of typical business interruption policy wordings, with reference to a number of different common law cases. The first key issue is to identify the clear purpose of the business interruption clause in a policy. Such clauses will vary from policy to policy. However, a close analysis of the relevant case-law reveals some common problems that derive from such wordings. Some of those issues are
- What does trigger the operation of the business interruption policy (What is an insured peril under a business interruption cover?)
- How are the principles of ‘causation’ analysed in respect of the business interruption cover?
- What does amount to
- The significance of the word ‘physical’ (does the business interruption clause have to be consequent upon a physical damage or loss?)
This interactive seminar that includes a number of case studies will conclude by the determination of whether the COVID-19 related business interruption claims are unprecedented.
Ozlem Gurses is an academic at King’s College London where she teaches insurance and reinsurance law. She studied law at Istanbul University, and completed her masters’ degree in Maritime Law and PhD in Reinsurance Law at the University of Southampton. Ozlem is the author of Reinsuring Clauses (Informa, 2010), Marine Insurance Law (Routledge, 2016, 2nd ed), The Law of Compulsory Motor Vehicle Insurance (Informa, 2019) and she is the updating author of The Insurance of Commercial Risks (Sweet and Maxwell, 2016 5th ed). She is a Committee Member of BILA, she sits on the Presidential Council of AIDA and she is the Vice-Chair of the Reinsurance Working Party of AIDA.
We are pleased to announce ‘BILA Book Prize Winner’ Paul Reed QC, will be discussing “Boundaries between Construction All Risks, Public Liability and Professional Indemnity insurance” at our next speaker event on 16th March 2020 at Lloyd’s between 1.00 p.m. and 2.00 p.m.
Paul is a leading commercial silk specialising in insurance, construction, professional liability and property damage. His books on Construction All Risks Insurance (3rd edition 2020) and Construction and Professional Indemnity Insurance (2nd edition 2021) published by Sweet & Maxwell are unique reference guides offering a comprehensive analysis of Construction and Engineering insurance and they have respectively been nominated for and winner of the BILA Book prize.
Paul is highly regarded and has an extensive international and domestic practice, working regularly in the Middle East, the Caribbean and the Asia Pacific region as well as other areas. This year he was shortlisted as Construction Silk of the Year in the Legal 500 Awards. He is also an occasional post graduate tutor and lecturer at Kings College and an experienced mediator, adjudicator and arbitrator.