Applicable law and jurisdiction

The issue in Glacier Reinsurance AG v Gard Marine and Energy Ltd [2010] EWCA Civ 1052 was whether a reinsured domiciled in Bermuda could bring an action in England against reinsurers domiciled in Switzerland. The Court of Appeal, upholding the first instance judgment of Hamblen J, held that the English court possessed jurisdiction and that the jurisdiction should be exercised. A number of the issues raised before Hamblen J did not feature in the appeal, but they are referred to in the following commentary for the sake of completeness. The only reasoned judgment in the Court of Appeal was given by Thomas LJ.

Gard: the facts

Gard, a company domiciled in Bermuda, agreed to accept 12.5% of the risk under a property and business interruption insurance issued to Devon Energy Corporation, a US company, and led by a Lloyd’s Syndicate. The policy ran from 1 July 2003 to 1 September 2005, subsequently extended by endorsement to 1st September 2007. The maximum sum insured was US$400m ‘any one accident or occurrence in respect of losses arising out of a Named Windstorm in the Gulf of Mexico’. Before confirming its participation in the 2005 renewal, Gard asked its London brokers, AHP, to secure 100% reinsurance. By a slip scratched on 17 and 18 August 2007. AHP secured the participation of four London Market reinsurers, Advent, Ascot, Map and Axis, for 7.5% of the whole. The slip was expressly governed by English law.