REPORTED CASES

Bermuda law reports are now available online at www.bdalawreports.net.

We set out below a list of some of the most important cases involving members of the firm together with a key word summary of the legal issues involved in each case. To obtain a copy of any of these cases, or more information on Bermuda law, please contact us.

ARBITRATION

• Enforcement of agreement to arbitrate - anti-suit injunction - stay of proceedings - whether Bermuda court had jurisdiction to restrain foreign legal proceedings brought in breach of arbitration agreement – whether seat of arbitation Bermuda
  
  Skandia International Insurance Co. & Ors. v. Al Amana Insurance & Reinsurance Co. Ltd . [1994] Bda LR 30; [1995] 4 Re L.R. 63.

• UNCITRAL Model Law, Article 16 - separability of arbitration clauses - scope of doctrine of separability under Bermuda law - power of court to review decision of tribunal that it had jurisdiction
  
  Christian Mutual Life Insurance Company & Ors. v. ACE Bermuda Insurance Limited [2002] Bda LR 1

• UNCITRAL Model Law, Article 34 - challenge to jurisdiction of arbitrators in Supreme Court under Article 16 - proceedings in Court of Appeal under Article 34 - which court should determine jurisdiction - application pending before both courts - whether Court of Appeal had jurisdiction to staty Supreme Court proceedings.

  Christian Mutual Life Insurance Company & Ors. v. ACE Bermuda Insurance Limited [2002] Bda LR 56

• Seat of arbitration - whether Bermuda - whether Arbitration Act 1986 or Bermuda International Conciliation and Arbitration Act 1993 applied - jurisdiction of Bermuda court to restrain reinsurance arbitration commenced under AAA rules – whether arbitrators should first rule on challenge to jurisdiction

  Professional Services Insurance Company Limited v. Gerling Konzern Versicherings Aktiengesellschaft and others [2003] Bda LR 55

• UNCITRAL Model Law, Article 1 - meaning of “commercial” - appeal from arbitration award - jurisdiction of Court of Appeal - lease of property - option to purchase assigned to respondent - whether domestic or international commercial arbitration

  Kessler v. Hill [2005] Bda LR 57

• Confidentiality - injunction to restrain disclosure of material relating to previous arbitration - whether duty of confidentiality exists in relation to Bermuda arbitration proceedings - reinsurance contracts - collateral estoppel - whether various reinsureds have joint or composite interest - privity of interest

  ABC Insurance Company v. XYZ Insurance Company [2006] Bda LR 8

• Appeal from award - Arbitration Act 1986 - validity of option to purchase - assignment of option to purchase - lease of house with option to purchase given to non-Bermudian - whether lease and option illegal

  Hill v. Kessler [2006] Bda LR 46

• Enforcement of agreement to arbitrate - anti-suit injunction - jurisdiction of Bermuda Court to restrain Russian proceedings brought by Bermuda company in breach of agreements to arbitrate in Sweden and Switzerland - evidence of foreign law – judicial discretion - whether plaintiffs had “clean hands”

  OAO “CT-Mobile” v. IPOC International Growth Fund Limited; LV Finance Group Limited v. IPOC International Growth Fund Limited [2006] Bda LR 69

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COMPANY LAW

• Annual General Meeting - Members - whether persons who were not Members of the Company entitled to attend Meeting - whether directors entitled to exclude from the Meeting persons who were not Members of the Company without putting question to the vote of the Meeting -Powers of Chairman of Meeting - whether Chairman entitled to adjourn Meeting without putting question to the vote of the Meeting
  
  Jeffrey Conyers v. Allan McDonald and Bermuda Cablevision Limited Civ. Jur. 1992 No. 496, 12 November 1992. [unreported]

• Directors' Duties - Bermuda - Companies Act 1981, s. 98 - Pleading - Particulars - Whether case of wilful default sufficiently pleaded - Whether statement of claim should be struck out
  
  The Bermuda Fire & Marine Insurance Co. Ltd. (in liquidation) and others v. BF&M Limited and others Civ. Jur. 1995 No's 7 & 8, 24 July 1996 [unreported].
  

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EQUITY

• Mortgage - Lease with option to purchase - whether separate transactions - whether option clog on mortgagor's equity of redemption - Bermuda - Companies Act 1981 - whether option ultra vires
  
  Bermuda Commercial Bank Ltd. v. Bickley & others . [1993] Bda LR 62

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FRAUDULENT CONVEYANCE

• Bermuda - Conveyancing Act 1983, s. 37 - Company law - shares - declaration of dividend in specie - Whether dividend in specie capable of being a fraudulent conveyance - Pleading - Whether statement of claim should be struck out.
  
  BF&M Limited and others v. The Bermuda Fire & Marine Insurance Co. Ltd. (in liquidation) & others [1996] Bda LR 63.

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INSURANCE REGULATION

• Bermuda - Insurance Act 1978, s. 31C - whether requirements of statute mandatory - whether dividend payment illegal
  
  Belvedere Insurance Company (In Liquidation) v. Caliban Holdings Limited [2001] Bda LR 2

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INJUNCTION

• Anti-Suit Injunction - Whether Bermuda court had jurisdiction to restrain foreign legal proceedings - Rules of the Supreme Court of Bermuda 1985, Order 11 Rule 1(1)(h),(j) - Whether foreign proceedings vexatious or unconscionable - Bermuda - The External Companies (Jurisdiction in Actions) Act 1885 - Captive insurance company incorporated in Bermuda - Whether parent "doing business in Bermuda by agents or branches"
  
  International Risk Management Group Ltd & ors. v. Elwood Insurance Limited & ors. [1993] Bda LR 48.
• Proprietary Injunction - Whether material non-disclosure - Whether discretion to continue injunction should be exercised - Jurisdiction - Rules of the Supreme Court of Bermuda 1985, Order 11 Rule 1(1)(j) - Whether good arguable case - Seaconsar v. Bank Markazi applied - Pleading - Generally Endorsed Writ of Summons - Whether Writ disclosed cause of action - Fraud - Equitable Tracing
  
  Utilicorp United Inc. v. Renfro & others [1994] Bda LR 79.

• Interlocutory injunction - Breach of Confidence - powers of Bermuda Monetary Authority – disclosure to foreign regulatory authority - right to confidentiality

• Golden Accumulator Ltd and others v. Bermuda Monetary Authority [2004] Bda LR 67

• Mandatory Interlocutory Injunction – enforcement of arbitration agreement – mandatory injunction compelling defendant to withdraw injunction granted in Russian proceedings - cross-undertaking in damages
• OAO “CT-Mobile” v. IPOC International Growth Fund Limited [2006] Bda LR 53

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JURISDICTION

• Forum non conveniens - leave to serve out of jurisdiction - R.S.C. Order 11 - application to set aside service -"rent-a-captive” arrangement – whether cause of action - material non-disclosure
  
  Mutual Holdings (Bermuda) Limited v. American Insurance Agency and Hendricks [2004] Bda LR 11

• Enforcement of foreign judgment and arbitral award - competing claims - priority - sovereign immunity - service out of jurisdiction
• New Skies Satellite BV v. FG Hemisphere Associates LLC [2005] Bda LR 59
• Forum non conveniens – leave to service out of jurisdiction - insurance dispute – meaning of “competent jurisdcition” - location where tort committed - breach of contract rather than tort

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MAREVA INJUNCTION

• Material non-disclosure - Whether good arguable case - Arbitration - Stay of proceedings - Whether injunction should be discharged or continued pending hearing of arbitration
  
  GTE Reinsurance Co. Ltd. v. Belvedere Underwriting Agents Ltd . Civ. Jur. 1997 No. 403, 6 March 1998.

• Jurisdiction - Bermuda - injunction issued in connection with the registration of a foreign judgment under the Judgments (Reciprocal Enforcement) Act 1958 – whether a substantive cause of action in existence - 'The Siskina' applied
  
  Berliner Bank A.G. v. John Karageorgis and Silver Carriers S.A . [1997] Bda LR 37; (1997/98) 1 O.F.L.R. 145.

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REINSURANCE

• Excess of Loss - Construction of slip - Meaning of "and/or" - Whether joint or composite contract - Whether summary judgment appropriate
  
  Kansa General International Insurance Co. Ltd. and Kansa International (Bermuda) Ltd. v. Herald Insurance Co. Ltd. and Northwestern National Insurance [1994] Bda LR 38.

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REINSURANCE/RETROCESSION

• Excess of Loss - Construction of Facultative Reinsurance Certificate - Relationship between retrocession contract and original insurance contract - Captive Reinsured - Whether retrocession contract covered subsidiary and affiliated companies of Parent Company
  
  Agrinational Insurance Ltd. v. Eireview Insurance Co. Ltd. [1995] Bda LR 17.

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REINSURANCE RUN-OFF

• Scheme of Arrangement - Solvent Scheme - Construction of Scheme Document - Whether "cut-off" Scheme - Whether company entitled to make final distribution to Scheme Creditors
  
  Hopewell International Insurance Limited v. Gold Medal Insurance Company [2001] Bda LR 32.

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SET-OFF

• Equitable Set-Off - Whether liquidated cross-claim - Arbitration - Stay of proceedings - Whether summary judgment appropriate
  
  GTE Reinsurance Co. Ltd. v. Belvedere Underwriting Agents Ltd. Civ. Jur. 1997 No. 403, 6 March 1998.

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TRUSTS

• Trustees - Supervision by Court - Jurisdiction - Whether litigation commenced by trustees against settlor should be sanctioned - whether trustess should be personally liable for costs already incurred
  
  In the matter of Cardenas Trusts, Boden & others v. Cardenas & others [1993] Bda LR 67 .
• Protector - Powers - Whether protector had power to remove trustees without cause - Whether necessary to show power of removal exercised in good faith - Trust Deed - Construction
• In the matter of The Star I (Revised) and Star II (Revised Trusts), Von Knieriem v. Bermuda Trust Co. Ltd. & others [1994] Bda LR 50.
• Trustees - Supervision by Court - Whether settlement of litigation should be sanctioned
  
  In the matter of Polar Trust, Bermuda Trust Co. Ltd. v. Ellefsen & others [1995] Bda LR 61.

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WINDING-UP

• Companies Act 1981, s.163 - Insurance Act 1978, s.34 - contingent creditor - locus standi to present winding-up petition - whether debt disputed - whether single policyholder entitled to present winding-up petition - whether evidence of insolvency
  
  In the matter of Chesapeake Insurance Co. Ltd., Mutual Fire Inland & Marine Insurance Co. v. Chesapeake Insurance Co. Ltd . [1991] Bda LR 42.
• Companies Act 1981, s.260 - whether dissolution of company should be declared void - contingent creditor - locus standi to set aside dissolution of company - Voluntary liquidation - Duties of liquidator
  
  Manhattan Re-Insurance Company v. Eastport Insurance Co. Ltd. Bda. Civ. [1994] Bda LR 18.
• Companies Act 1981, s.164 - Insurance Act 1978, s. 31C - whether dividend payment illegal - whether debt disputed - whether court should exercise discretion not to dismiss petition - "unusual circumstances" - whether appointment of provisional liquidators should be continued
  
  Belvedere Insurance Company Limited (In Liquidation) v. Caliban Holdings Limited , In the Supreme Court of Bermuda Companies (Winding-Up) 1999: No. 80, 26 March 1999 [unreported].
• Companies Act 1981, s. 170 - Appointment of provisional liquidators - Whether appointment should be discharged - U.S. Chapter 11 reorganization - whether Bermuda court should co-operate with U.S. Bankruptcy Court
  
  In the matter of ICO Global Communications (Holdings) Limited [1999] Bda LR 69

• Companies Act 1981, s. 170 - Companies (Winding Up) Rules 1982, r 140 - whether joint provisional liquidators entitled to costs incurred prior to appointment in cross-border restructuring - statutory priority
• Re Global Crossing Ltd [2002] Bda LR 44
• Companies Act 1981, s. 161 - winding up - application for stay - arbitration - option agreement
• UBS AG Labuan Branch, East Asia Fund Limited v. Cathay Overseas Co Limited [2003] Bda LR 6
• Companies Act 1981, s. 162(a) - statutory demand - application for injunction restraining presentation of petition - whether petition an abuse of process - letters of credit – meaning of “debt”
• Annuity & Life Reassurance Ltd v. Manufacturers Life Insurance Company ( Barbados Branch) [2003] Bda LR 16
• Liquidators – application for injunction restraining defendant from pursuing any other claims against plaintiff - construction of settlement agreement – definition of “claim” - costs
• James Henry Ting v. Nicolas Timothy Cornforth Hill as liquidator of Akai Holdings Limited and Kang Wah Holdings Limited [2004] Bda LR 7

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