The Bermuda Form arbitration process: a glimpse through the insurers' spectacles (updated for 2017)

Introduction

1. It is reported that, in recent years, there has been a threefold increase in U.S. citizens giving up their citizenship and becoming British, a process known in U.S. tax circles as renunciation. The reason is principally U.S. tax law and not any other. Otherwise, U.S. citizens are not enamoured of the U.K. Indeed, the climate in England is notoriously atrocious, the English accent is curious, and the humour is dubious. However, U.K. tax is preferable to U.S. tax. Yet, despite their renunciation, these erstwhile citizens harbour a passion for U.S. laws and are really U.S. citizens with UK tax clothing.
   
   
2. The same might be said about Bermuda Form arbitrations, where U.S. policyholders have embraced the idea of (mainly) English arbitrations for U.S. disputes. English arbitration laws and practices can be preferable to U.S. arbitration laws and practices in certain respects even though the policyholders are truly U.S. entities. For this reason, they have retained New York law to protect them whilst opting for English arbitration clothing with which to cover them. In the same vein, it might be said that Bermudian insurers have retained the cloak of protection of English arbitration laws and practices whilst agreeing to New York law (subject to certain modifications) in an effort to maintain an “even-handed” and “fair” level playing field even though in all other aspects their cultural affinity is towards English law.
   
   
3. In this context, this Article explores some of the practical issues that might arise in Bermuda Form arbitration proceedings. In particular, it takes a look at these issues from the perspective of both insureds and insurers who have each come to the Bermuda Form playing field with inevitably different and competing objectives but yet must abide by the same set of rules.

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