Bermuda is a leading insurance centre, and international arbitration is the common method of resolving insurance and reinsurance disputes in Bermuda. Policies issued abroad by Bermuda-based insurers and reinsurers typically include an arbitration clause requiring Bermuda-seated arbitration. This includes “Bermuda Form” policies, which may be governed substantively by New York law but procedurally by Bermudian or English law.

The insurance and reinsurance sectors continue to experience significant international arbitration activity. Bermudian insurers and reinsurers routinely include arbitration agreements in the many thousands of (re)insurance policies issued in the Bermuda market annually. Typically, these provide for arbitration in Bermuda under the Bermuda International Conciliation and Arbitration Act 1993 (the “1993 Act”) or for arbitration in London under the UK’s Arbitration Act 1996. It is common for insurance policies issued in Bermuda to adopt (modified) New York law as the substantive law of the contract, but to adopt Bermuda or English law to govern procedural matters; the resulting arbitrations are often referred to as “Bermuda Form” arbitrations. COVID-19 had a minimal impact on the conduct of international arbitral proceedings in Bermuda, with tribunals frequently hearing matters remotely on virtual platforms, particularly procedural matters and those not involving live witness testimony.

International arbitration for insurance and reinsurance disputes in Bermuda is typically conducted on either an ad hoc basis or under the auspices of the UK or US branches of ARIAS, the Insurance and Reinsurance Arbitration Society.

The establishment of an international arbitration centre in Bermuda has been under discussion for some time, with the hope that Bermuda will develop as an international arbitration hub for the Western Hemisphere similar to the way Singapore is such a hub to Asia.

The Supreme Court of Bermuda is the civil and commercial court of first instance. The Supreme Court has limited supervisory jurisdiction in respect of arbitration proceedings, including regarding:

• the appointment of arbitrators;
• the tribunal’s preliminary determination of a challenge to the appointment of an arbitrator or to its own jurisdiction;
• the tribunal’s ruling of its jurisdiction and competence in any award;
• any excess of jurisdiction beyond the agreed process for the appointment of the tribunal or the arbitration procedure;
• any award in dealing with matters beyond the scope of the arbitration clause; and
• restraining persons (including non-parties) from proceeding abroad in breach of the arbitration clause.

The Bermuda International Conciliation and Arbitration Act 1993 (the “1993 Act”) adopts the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (the “Model Law”), except for certain provisions in respect of the enforcement of arbitration awards. Domestic disputes in Bermuda which are subject to arbitration are governed by the Arbitration Act 1986 (the “1986 Act”).

There have been no amendments to the 1993 Act or the 1986 Act in the past year, and there is, as of August 2023, no pending legislation that may change the arbitration landscape in Bermuda.

The only legal requirements for an arbitration agreement to be enforceable under the laws of Bermuda are that it be written. The written form of the arbitration agreement can be a clause in a contract, or a standalone agreement to arbitrate, or may be contained in an exchange of correspondence. Further, the parties may expressly reference an arbitration clause contained in a separate document.

There are no subject matters that may not be referred to arbitration under the laws of Bermuda, although the arbitrability of insolvency, minority shareholder, trusts, and partnership disputes is questionable. The general approach used in Bermuda to determine whether or not a dispute is arbitrable involves an assessment of the terms and scope of the arbitration agreement (Lenihan v LSF Consolidated Golf Holdings Ltd [2007] Bda LR 49).

Governing Law

The Bermudian courts have usually determined the law governing the arbitration agreement, where not expressly provided for by the parties, by presuming that the law governing the agreement is also the proper law of the agreement.

Enforcement of Arbitration Agreements

The approach of the Bermudian courts with respect to the enforcement of arbitration agreements has been to affirm, as a matter of policy, the upholding of such agreements. The Supreme Court will act, robustly if necessary, including through the issuance of an anti-suit injunction, to restrain a person from violating an arbitration agreement, including foreigners and even persons who are not directly party to the agreement. In this way, it can be said that arbitration agreements are usually enforced by the Bermudian courts.

The 1993 Act adopts the Model Law, in which Article 16(1) provides that an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract, and that a decision by the arbitral tribunal that the contract is null and void shall not by itself entail that the arbitration clause is invalid. In this regard, it is long established by the Court of Appeal for Bermuda that the rule of separability of arbitration clauses contained in invalid agreements applies in Bermuda (Sojuznefteexport v Joc Oil Ltd [1989] Bda LR 11).

There are no limits on the parties’ autonomy to select arbitrators in Bermuda, except as already limited in the arbitration agreement. The parties may agree on the number of members of the tribunal, the process for their appointment, and what qualifications they may require in order to be appointed.

If the parties’ chosen method for selecting arbitrators fails, the 1993 Act adopts the Model Law in which Article 11(4) provides the default procedure for appointing the tribunal. The default procedure is that any party may request the court specified by the jurisdiction adopting the Model Law to take the necessary measures. Pursuant to Section 25 of the 1993 Act, the Bermudian legislature has designated Bermuda’s Supreme Court for certain functions of arbitration assistance and supervision, including in respect of taking the necessary measures for the appointment of arbitrators. The Supreme Court’s decision on an application for appointment cannot be appealed.

There is no default procedure that applies in the case of multiparty arbitrations.

Bermuda’s Supreme Court can intervene, at the request of one of the parties, in the selection of arbitrators pursuant to Article 11(4) of the Model Law as adopted by the 1993 Act. Where, under an appointment procedure agreed on by the parties, a party fails to fulfil its obligations as required pursuant to such chosen procedure, or the parties (or two arbitrators) are unable to reach an agreement expected of them under such procedure, or a third party (including an arbitration institute) fails to perform any function entrusted to it under such procedure, any party may apply to the Supreme Court to take the necessary measures (unless the agreement on the appointment procedure provides other means for securing the appointment).

Similarly, the Supreme Court can appoint an arbitrator, in default of agreement, pursuant to Section 15 of the 1986 Act in respect of Bermuda Form arbitrations (S v T [2017] Bda LR 138).

Pursuant to Article 13 of the Model Law as adopted by the 1993 Act, a party may seek the Supreme Court’s intervention where there are justifiable doubts as to an arbitrator’s impartiality or independence, or if they do not possess qualifications agreed on by the parties. Where a party challenges an arbitrator alleging that circumstances exist that give rise to such justifiable doubts, or that the arbitrator does not possess the necessary qualifications, unless the challenged arbitrator withdraws from their appointment or the responding party consents to the relief sought on the challenge, the tribunal shall decide the matter. An unsuccessful challenger may raise its challenge before the Supreme Court, which will hear the challenge afresh. The court’s decision is not subject to appeal.

The requirements as to arbitrator independence, impartiality and disclosure of potential conflicts of interest under Bermudian law are set out in Article 18 of the UNCITRAL Model Law, which is adopted in Bermuda pursuant to the 1993 Act. Pursuant to Article 18 of the Model Law, each party is to be treated with equality and given a full opportunity to present its case. Accordingly, the arbitrators must remain independent and impartial throughout the duration of the arbitration.

In Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48, the UK Supreme Court confirmed that arbitral tribunal members must be impartial and have a duty to disclose matters which could give rise to justifiable doubts as to that impartiality including, depending on the circumstances, multiple previous appointments by the same party in similar proceedings, subject to agreement between the parties. While this decision of the UK Supreme Court is not binding on the Bermudian courts, Bermudian law generally follows English law closely, and it is quite likely that this decision will be followed in Bermuda.

There are no subject matters that may not be referred to arbitration under the laws of Bermuda, although the arbitrability of insolvency, minority shareholder, trusts, and partnership disputes is questionable.

An arbitral tribunal may rule on a party’s challenge to the tribunal’s own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. To this extent, Bermudian law recognises the doctrine of Kompetenz-Kompetenz (competence-competence). The jurisdiction challenge is to be made to the arbitral tribunal no later than submission of the statement of defence, unless the matter alleged to be beyond the scope of the tribunal’s authority is raised during the arbitral proceedings. In any event, the arbitral tribunal can admit a later challenge if it considers the delay justified. The tribunal may consider its jurisdiction as a preliminary matter or in its final award on the merits.

If an arbitral tribunal denies a party’s challenge to the tribunal’s jurisdiction, in whole or in part, any party may escalate the matter to the Supreme Court for a reconsideration of the tribunal’s jurisdiction. The right to escalate a jurisdiction question to the Court is statutory, based on the adoption of the Model Law by the 1993 Act, and broadly speaking the Court shows no reluctance to intervene. The Supreme Court’s decision on jurisdiction may not be appealed.

The Supreme Court has no statutory authority to review a decision by an arbitral tribunal that it has no jurisdiction.

The parties have the right to go to the Supreme Court to challenge the jurisdiction of the arbitral tribunal whenever the tribunal has decided that it does have jurisdiction following the party’s challenge, ie, as a preliminary matter or in the final award. The right to go to court must be exercised within 30 days of the tribunal’s decision.

The Supreme Court’s review of questions of admissibility and jurisdiction is conducted on a de novo basis, ie, afresh, but with due consideration to the tribunal’s assessment of its jurisdiction.

Approach of Courts in Bermuda

The approach of the Bermudian courts towards a party which commences court proceedings in breach of an arbitration agreement is to enforce the agreement robustly.

Anti-Suit Injunctions and Foreign Proceedings

This approach may include granting anti-suit relief against a person that commences proceedings in breach of an arbitration agreement, including, in certain circumstances, non-parties to the agreement. Injunctive relief may be granted by the Supreme Court irrespective of whether the litigation has been commenced in Bermuda or abroad. Any party that takes steps in connection with the court proceedings in violation of the anti-suit injunction may be found to have done so in contempt of the Supreme Court, and any foreign judgment may be unenforceable in Bermuda.

Staying Proceedings in Bermuda

Proceedings issued in Bermuda in breach of an arbitration agreement will be stayed by the Supreme Court on the application of a party to the proceedings which has not submitted to the court’s jurisdiction (for example, by entering a defence). Proceedings were stayed by virtue of Article 8 of the Model Law, which is adopted in Bermuda by the 1993 Act, in Raydon Underwriting Management Co Ltd v North American Fidelity & Guarantee [1994] Bda LR 65.

No Referral to Arbitration if the Agreement is Void, etc

Pursuant to Article 8 of the Model Law, the Supreme Court will not refer the dispute to arbitration if the court finds that the arbitration agreement is null and void, inoperative, or incapable of being performed.

General Willingness to Enforce Arbitration Agreements

Given that the approach of the Bermudian courts towards a party which commences court proceedings in breach of an arbitration agreement is to enforce the agreement robustly, there is general willingness to stay Bermuda proceedings and restrain persons from pursuing foreign proceedings which have been commenced in breach of an arbitration agreement.

There are no circumstances under Bermudian law by which an arbitral tribunal may assume jurisdiction over individuals or entities that are neither party to the arbitration agreement nor signatories to the contract containing the arbitration clause. Generally speaking, only the parties to an arbitration agreement can be compelled to participate in arbitral proceedings. Non-parties cannot be compelled to arbitrate, no matter how relevant they may be to the dispute.

This issue often arises in the context of insurance coverage disputes, where the insured enters into separate policies (each containing a separate arbitration agreement) with multiple insurers within a “tower” of insurance. Where multiple coverage disputes arise between the policyholder and its insurers, the insured is unable to compel the insurers into a single consolidated proceeding even if the disputes involve common questions of fact and law.

That said, it is not uncommon for a third party to assert rights under an insurance policy that contains an arbitration clause even though they are not party to the policy. Examples of this include a party asserting a “cut through” right directly against the insurer (eg, under “direct action” legislation), assignees of the policyholder (including liquidating trusts in bankruptcy proceedings), an insurer exercising rights of subrogation, and a co-insurer seeking a contribution from another insurer. In all of these scenarios, the target insurer will, generally, be able to insist that its rights under the policy be determined through Bermudian arbitration despite the third party not being party to the arbitration agreement (see, eg, ACE Bermuda Insurance Ltd v Continental Casualty Co [2007] Bda LR 8, [2007] Bda LR 38).

Further, the Contracts (Rights of Third Parties) Act 2016 enables parties to confer contractual rights on third parties, subject to the terms and conditions of the contract (including, for example, any arbitration clause).

Article 17 of the UNCITRAL Model Law, which is adopted in Bermuda pursuant to the 1993 Act, provides that (unless otherwise agreed by the parties) the arbitral tribunal may, at the request of the party, order any party to take such interim measure of protection as the tribunal considers necessary in respect of the subject matter of the dispute. The arbitral tribunal may also require any party to provide appropriate security in connection with such measure. Such relief is legally binding on the party so ordered, but the party requesting the relief may require the assistance of the courts, whether in Bermuda and/or abroad, in the event of non-compliance and generally speaking the Bermudian courts can be expected to enforce such interim relief provided it can be granted pursuant to Bermudian law.

Preliminary and Interim Relief

Article 9 of the UNCITRAL Model Law, which is adopted in Bermuda by the 1993 Act, permits a party to request that the Supreme Court make an order for an interim measure of protection. Section 35(5) of the 1993 Act provides that the court may make orders in respect of:

• examination on oath of any witness before an officer of the Court or any other person, and the issue of a commission or request for the examination of a witness out of the jurisdiction;
• the preservation, interim custody or sale of any goods which are the subject matter of the arbitration;
• securing the amount in dispute in the arbitration;
• the detention, preservation or inspection of any property or thing which is the subject of the arbitration or as to which any question may arise therein, and authorising for any of the purposes aforesaid any person to enter on or into any land or building in the possession of any party to the arbitration, or authorising any samples to be taken or any observation to be made or experiment to be tried which may be necessary or expedient for the purpose of obtaining full information or evidence;
• interim injunctions; and
• the appointment of a receiver.

Nothing in Section 35(5) prejudices any power of the tribunal to make orders with respect to any of the above-listed matters.

Interim Relief in Aid of Foreign-Seated Arbitrations

The Supreme Court can grant interim relief in aid of foreign-seated arbitrations.

Emergency Arbitrators

The 1993 Act does not provide for the appointment of emergency arbitrators. However, Article 9 of the Model Law, which is adopted in Bermuda by the 1993 Act, permits a party to request, before arbitral proceedings are commenced, an interim measure of protection from the Supreme Court and allows the Court to grant such relief.

Neither the 1993 Act nor the UNCITRAL Model Law expressly provide for the Supreme Court or an arbitral tribunal to order security for costs in support of arbitration proceedings, and there are no reported decisions addressing the issue.

Except for the requirements that the parties be treated equally and that each party be afforded the opportunity to present its case, there are no laws or rules governing the conduct of arbitration proceedings under the 1993 Act or the Model Law.

In arbitral proceedings conducted in Bermuda, the parties are at liberty to agree on the procedure to be followed by the parties and the tribunal. In the absence of such agreement, the tribunal may conduct the arbitration as it sees fit. Article 23 of the Model Law provides for the submission of claim and defence pleadings. Usually, arbitration proceedings in Bermuda follow English and Bermudian civil procedure, with the parties exchanging statements of case followed by documentary disclosure, and then the exchange of fact and expert witness statements.

The Model Law, which is adopted by the 1993 Act, imposes on each arbitrator the duties of:

• treating the parties with equality (Article 18);
• giving each party a full opportunity of presenting its case (Article 18);
• giving sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of goods, other property or documents (Article 24(2)); and
• disclosing, from the time of their appointment and throughout the arbitral proceedings, any circumstances likely to give rise to justifiable doubts as to the arbitrator’s impartiality or independence (Article 12(1)).

Bermudian Lawyers

The conduct of counsel called to the Bermuda Bar is governed by the Barristers’ Code of Professional Conduct 1981. These rules also govern the conduct of Bermudian lawyers in arbitral proceedings sited elsewhere. The Code of Conduct does not govern the conduct of legal representatives from other jurisdictions in arbitral proceedings sited in Bermuda.

Foreign Lawyers

The appearance in Bermuda by legal representatives from other jurisdictions is restricted by professional and immigration requirements. However, these are relaxed in respect of international commercial arbitrations. Section 37(3) of the 1993 Act permits a duly qualified legal practitioner from any legal jurisdiction chosen by a party to an arbitral proceeding to act on behalf of the party, including appearing as counsel before the arbitral tribunal. In addition, the Bermudian government’s 2017 Work Permit Policy exempts foreign lawyers visiting Bermuda in connection with international arbitrations from the normal work-permit requirements (provided they remain in Bermuda for no longer than 21 days).

The general approach to the collection and submission of evidence at the pleading stage and at the hearing in Bermuda is that the parties are free to agree on the rules of evidence that apply to the arbitration, and in the absence of such agreement the tribunal may decide. That said, Bermudian arbitrations tend to follow English and Bermudian civil procedure and practice without being bound by such.

Pursuant to Section 35(2) of the 1993 Act, an arbitral tribunal may receive any evidence that the tribunal considers relevant and, unless the parties have otherwise agreed, shall not be bound by rules of evidence applicable in Bermuda. Pursuant to Article 19(2) of the Model Law, which is adopted in Bermuda by the 1993 Act, the arbitral tribunal may determine the admissibility, relevance, materiality and weight of any evidence of the parties failing to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.

Production

Apart from Article 18 of the Model Law – which requires equality of treatment between the parties – there are no limitations on the tribunal’s authority to order production of documents by the parties. An arbitrator cannot compel disclosure from a third party without the assistance of the court. Pursuant to Article 27 of the Model Law, a party with the approval of the arbitral tribunal may apply to the Supreme Court for assistance in taking evidence, and the court may execute such request within its competence and according to its rules on taking evidence; in practice, this applies only to taking evidence from non-parties.

Witnesses

Pursuant to Section 35 of the 1993 Act, any party to an arbitration under an arbitration agreement may issue court subpoenas to compel production of documents and attendance of witnesses at the hearing, and the Supreme Court may make orders in respect of the examination on oath of any witness before an officer of the court or any other person, and the issue of a commission or request for international judicial assistance for the examination of a witness outside the jurisdiction.

Arbitral proceedings under the 1993 Act – including pleadings, documents and awards – are generally private and confidential as a matter of Bermudian law if such law applies to the interpretation of the arbitration clause. However, confidentiality is not absolute and there are some narrow exceptions, eg, disclosure of the award to prove an issue estoppel in a subsequent proceeding. Further, information in arbitral proceedings may be disclosed in subsequent proceedings only with the agreement of the parties, to establish res judicata, or with leave of the court.

Article 31 of the Model Law, which is adopted in Bermuda by the 1993 Act, sets out the legal requirements for an arbitral award in Bermuda:

• the award is to be made in writing and signed by the arbitrator(s) (and, where there is more than one arbitrator, the signatures of the majority of the members of the arbitral tribunal shall suffice provided that the reason for any omitted signature is stated);
• the award is to state the reasons on which it is based (unless the parties have agreed that no reasons are to be given or the award records a settlement between the parties);
• the award shall state its date and the place of arbitration; and
• a copy of the award as signed by the arbitrators shall be delivered to each party.

There are no time limits in the 1993 Act or the 1986 Act for the delivery of the award.

There are no limits on the types of remedies that an arbitral tribunal may award provided that the remedies granted must accord with the law that the parties have chosen to apply to the dispute. Where the parties have chosen Bermudian law to apply, it is unlikely that the tribunal has the power to award punitive damages unless the parties have agreed that such damages may be awarded.

Interest

Pursuant to Section 31 of the 1993 Act, unless the parties agree otherwise, where an arbitral tribunal awards the payment of money the tribunal may include awards of pre and post-award interest at such reasonable rate(s) as the tribunal determines. Where the award is made in Bermudian currency, the Interest and Credit (Charges) Regulations 1975 will apply.

Costs

Pursuant to Section 32 of the 1993 Act, unless the parties agree otherwise, the costs of the arbitration are within the tribunal’s discretion, including:

• fees and expenses of the tribunal members;
• legal fees and expenses of the parties, their representatives, witnesses and expert witnesses;
• administration fees and expenses of any arbitral institution administering the arbitration; and
• any other expenses incurred in connection with the arbitral proceedings.

Broadly speaking, costs follow the event and are substantially, but not necessarily fully, awarded to the successful party.

The 1993 Act does not provide for any right to appeal arbitral awards. The only recourse the parties have to challenge an award is an application to set the award aside pursuant to Article 34 of the Model Law. An application to set aside an arbitral award may be made to Bermuda’s Court of Appeal on the grounds that:

• a party to the arbitration agreement was under some incapacity;
• the arbitration agreement is not valid under its governing law or, if the parties have not provided for the governing law, the law of Bermuda;
• the applicant was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present its case;
• the award deals with a dispute beyond the purview of the arbitration agreement;
• the arbitral procedure or the composition of the tribunal was not in accordance with the agreement of the parties;
• the subject matter of the dispute is not capable of being arbitrated under Bermudian law; or
• the award is in conflict with Bermudian public policy.

Section 27 of the 1993 Act provides that an award is in conflict with the public policy of Bermuda if the making of the award was induced or affected by fraud or corruption.

It is not likely that any agreement by the parties to exclude or expand the statutory scope of challenging an arbitral award under the 1993 Act would be enforceable by the Bermudian courts. That said, Bermuda Form insurance policies usually provide that the parties waive any right of appeal to the fullest extent possible. If the parties wished to have broader rights to challenge awards than afforded by the 1993 Act, they could expressly adopt the 1986 Act in their arbitration agreement, which provides for wider bases for challenge.

The standard of court review of an arbitral award on any application to set aside the award is deferential rather than de novo.

Bermuda is a British Overseas Territory, and the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards was extended to Bermuda by the United Kingdom in 1979. A reservation in respect of Bermuda limits the application of the New York Convention to recognition and enforcement of awards made in another contracting state.

A party seeking to enforce an arbitral award in Bermuda pursuant to the New York Convention may do so either by application for leave of the court or by action pursuant to Section 40(1) of the 1993 Act. Similarly, Section 48 of the 1993 Act provides that arbitral awards which cannot be enforced in Bermuda pursuant to the New York Convention may yet be enforced in the same manner as a judgment or order to the same effect and, where leave is so given, judgment may be entered in terms of the award. Application for leave will generally be the preferred procedure for enforcing awards, but action may be commenced where the award cannot readily be converted into a judgment, eg, where the award is incomplete or uncertain and further proof is required in order to enforce it.

The party seeking to enforce will need to evidence:

• the award (authenticated original or certified copy);
• the arbitration agreement (original or certified copy); and
• translation(s) into English of the award and arbitration agreement if not in English (certified by an official or sworn translator or by a diplomatic or consular agent).

The bases by which the Bermudian courts may refuse to enforce an arbitral award pursuant to the New York Convention are statutorily limited to the scenarios listed in Section 42(2) of the 1993 Act. These include where the party against which the award is invoked proves that the award has not yet become binding on the parties (eg, if the award has been stayed at the seat while subject to ongoing set-aside proceedings), or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made.

Where an application for the setting aside or suspension of an award has been made to such a competent authority, the Supreme Court has the discretion to adjourn the enforcement proceedings and may then, on the application of the party seeking to enforce the award, order the other party to give security. In Leap Investments Ltd v Emerging Markets Special Solutions 3 Ltd [2015] Bda LR 38, the Court of Appeal for Bermuda stayed enforcement proceedings because the award was subject to annulment proceedings in the jurisdiction in which the award was made.

Enforcement of an arbitral award in Bermuda pursuant to the New York Convention may also be refused, pursuant to Section 42(3) of the 1993 Act, if the award is in respect of a matter which is not capable of settlement by arbitration, or if it would be contrary to Bermudian public policy to enforce the award. While Bermuda has not enacted state immunity legislation, a state or state entity could attempt to raise a defence of sovereign immunity at the enforcement stage on public policy grounds. In any event, the common law rules governing the defence apply: see Miller v Department of the Navy of the United States of America [1986] Bda LR 78. It is likely that the Bermudian court will give effect to state immunity where circumstances require.

The general approach of the Bermudian courts is one which favours recognition and enforcement of arbitration awards. In respect of refusing to enforce an arbitral award on public policy grounds, the Court of Appeal for Bermuda held in Sampoerna Strategic Holdings Ltd v Huwaei Tech Investments Co Ltd [2014] Bda LR 108 that there may be rare cases where enforcement of an award pursuant to the New York Convention will be refused on public policy grounds if enforcement would “shock the conscience” or be “clearly injurious to the public good” or otherwise violate Bermuda’s “most basic notion of morality and justice”.

In CAT SA v Priosma [2019] Bda LR 69, the Supreme Court refused a challenge to enforcement of an arbitral award on the ground that the tribunal lacked jurisdiction, finding that an issue estoppel had been created by a jurisdiction challenge brought before and rejected by the supervising French court.

In S v L [2019] Bda LR 83, the Bermuda court granted an ex parte order for a Mareva injunction and ancillary disclosure orders relating to an award-debtor’s assets in Bermuda after the award-debtor failed to make payments under the arbitration award.

Bermuda does not provide for class action arbitration or group arbitration.

See 7.3 Powers and Duties of Arbitrators and 7.4 Legal Representatives.

The only rules or restrictions on third-party funders concern Bermudian lawyers. The Code of Professional Conduct governing Bermudian lawyers sets out that, except in respect of undefended debt collections or to an extent expressly permitted by Bermuda’s Bar Council, Bermudian lawyers shall not enter into contingent fee arrangements under which their fees depend on the results of a case or consist of a pre-arranged share of money recovered on behalf of a client. The Bermuda Bar Association has previously recommended that conditional and/or contingency fee arrangements be allowed in Bermuda but, as of the date of publication (August 2023), this recommendation has not been followed by the Bermudian legislature.

An arbitral tribunal with its seat or a court in Bermuda could only consolidate separate arbitral proceedings with the consent of all parties to the proceedings.

If a third party asserts rights under an insurance policy that contains an arbitration clause, even though they are not party to the policy, the insurer will, generally, be able to insist that its rights under the policy be determined through Bermudian arbitration despite the third party not being party to the arbitration agreement. See 5.7 Jurisdiction Over Third Parties. In this way, a third party may effectively be bound by the arbitration agreement and any ensuing award.

Beyond this, no third party, whether domestic or foreign, can be bound by any arbitration agreement or award unless it willingly joins the arbitration proceedings as a party with the consent of the other parties.