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Part II The Bermuda Form in Detail, 14 Waiver/Estoppel

David Scorey, Richard Geddes, Chris Harris

From: The Bermuda Form: Interpretation and Dispute Resolution of Excess Liability Insurance (2nd Edition)

David Scorey QC, Richard Geddes, Chris Harris

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 17 June 2024

Agency by estoppel — Waiver and damages — Contracts and insurance

This chapter discusses the law on waivers and estoppel. Waiver, like affirmation, election, and repudiation is an issue intimately connected to the operation and effect of the parties' contractual rights and obligations, and determined by the proper law of that contract, i.e. New York law as amended by Article VI.O of Form XL004. The identification of the proper law of an estoppel is more problematic. In general, estoppels relating to the insurance relationship rooted in a Bermuda Form policy are invariably addressed by the parties, and treated by tribunals, as governed by the proper law of the contract, which, in the usual case, is New York law pursuant to the Law of Construction and Interpretation Clause. Other estoppels, such as issue estoppel or estoppel per rem judicatam, may apply English law as the lex fori.

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