3.1 Are there any subject matters that may not be referred to arbitration under the governing law of your jurisdiction? What is the general approach used in determining whether or not a dispute is “arbitrable”?
There are generally no restrictions on the subject matter that may be referred to arbitration in Bermuda, save that there is some scope for argument as to the arbitrability of insolvency, minority shareholder, and partnership disputes. Whether a dispute is “arbitrable” is a question of the scope and terms of the arbitration agreement (Lenihan v LSF Consolidated Golf Holdings Ltd  Bda LR 49). Both the 1986 Act and the 1993 Act apply to arbitrations to which the Crown is a party.
3.2 Is an arbitral tribunal permitted to rule on the question of its own jurisdiction?
Yes. The tribunal may rule on its own jurisdiction, and on objections with respect to the existence or validity of an arbitration agreement. For these purposes an arbitration clause contained in a contract is treated as an agreement independent of the other terms contained in the contract.
3.3 What is the approach of the national courts in your jurisdiction towards a party who commences court proceedings in apparent breach of an arbitration agreement?
The Bermuda court will act robustly to enforce an arbitration agreement, including by granting an anti-suit injunction against a party who commences proceedings in breach of an arbitration agreement. The Bermuda court has the power to grant injunctive relief regardless of whether the litigation has been commenced in Bermuda or outside Bermuda, and any party who takes steps in connection with the court proceedings in violation of the anti-suit order may be held in contempt of court. The most recent reported example of an anti-suit injunction being granted by the Bermuda Court in support of an arbitration agreement is the case of Ironshore Insurance Ltd et al v MF Global Assigned Assets LLC  Bda LR 127.
An action commenced before a court in Bermuda in breach of an arbitration agreement will be stayed by the court at the request of a party to the action who has not submitted to the court’s jurisdiction (for example, by entering a defence). Proceedings were stayed pursuant to Article 8 of the Model Law in Raydon Underwriting Management Co Ltd v North American Fidelity & Guarantee  Bda LR 65. Under Article 8 the Bermuda court will not refer the matter to arbitration if the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed.
3.4 Under what circumstances can a national court address the issue of the jurisdiction and competence of an arbitral tribunal? What is the standard of review in respect of a tribunal’s decision as to its own jurisdiction?
Article 16 of the Model Law provides that the arbitral tribunal may rule on issues going to its jurisdiction. This includes its competence to hear objections with respect to the existence or validity of the arbitration agreement that purportedly gives it power to act. It may also determine questions about the principal agreement in which the arbitration clause is embedded. To this extent, Bermuda law recognises the doctrine of Kompetenz-Kompetenz. The tribunal can address the issue as a preliminary question or in its final award on the merits. If the tribunal rules as a preliminary matter that is has jurisdiction, any party may request, within 30 days of receiving notice of the award, that the Bermuda Supreme Court decide the matter. The court’s decision is binding and cannot be appealed. Where the tribunal rules on questions of jurisdiction and competence in any award, it is open to a party to seek to have the award set aside on the grounds that it deals with a dispute not contemplated by the arbitration agreement, or contains decisions on matters beyond the scope of the submission to arbitration, or that either the composition of the tribunal or its procedure was not in accordance with the parties’ agreement.
3.5 Under what, if any, circumstances does the national law of your jurisdiction allow an arbitral tribunal to assume jurisdiction over individuals or entities which are not themselves party to an agreement to arbitrate?
Parties can only be compelled into arbitration by consent, and subject to the terms of the applicable arbitration agreement. Nonparties to that agreement cannot be compelled to arbitrate, no matter how relevant they may be to the dispute.
This question often arises in the context of insurance coverage disputes, where the policyholder enters into separate insurance 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 policyholder is unable to compel the insurers into a single consolidated proceeding even if the disputes involve common questions of fact and law. Likewise, a policyholder wishing to pursue an alternative claim against its insurance broker (e.g. for negligence in negotiating the policy) will not be able to join the broker to the arbitration proceedings with the insurer, unless the broker is also a party to the arbitration proceedings.
It is not uncommon for a third party to assert rights under an insurance policy that contains an arbitration clause even though such party is not a party to the policy or to the arbitration clause. Examples include a claimant asserting a “cut through” right directly against the insurer (e.g. pursuant to a “direct action” statute), assignees of the policyholder (including liquidating trusts in bankruptcy proceedings), an insurer exercising rights of subrogation or a co-insurer seeking a contribution from another insurer. In all of these cases, the target insurer will, generally, be able to insist that its rights under the policy be determined through arbitration notwithstanding that the third party was not an original party to the arbitration clause (see, for example, ACE Bermuda Insurance Ltd. v Continental Casualty Co  Bda LR 8,  Bda LR 38).
Bermuda has also recently enacted legislation entitled the Contracts (Rights of Third Parties) Act 2016, pursuant to which parties to a contract may decide to confer contractual rights on third parties, subject to the terms and conditions of the contract (including, for example, any arbitration clause).
3.6 What laws or rules prescribe limitation periods for the commencement of arbitrations in your jurisdiction and what is the typical length of such periods? Do the national courts of your jurisdiction consider such rules procedural or substantive, i.e., what choice of law rules govern the application of limitation periods?
Section 35 of the Limitation Act 1984 (“the 1984 Act”) prescribes that the limitation provisions which apply for commencing court proceedings in Bermuda also apply to arbitrations. In Bermuda the limitation period for cases founded on a contract or in tort is six years from the date upon which the relevant cause of action accrued.
Time stops running for limitation purposes once arbitration proceedings are commenced. Under Article 21 of the Model Law, arbitral proceedings are deemed to commence on the date when one party to the arbitration serves on the other party a notice requiring it to appoint or agree to the appointment of an arbitrator. Where the arbitration agreement provides that reference is to be made to a person named or designated in the agreement, the proceedings are deemed to commence when one party to the arbitration serves on the other party a notice requiring it to submit the dispute to the person so named or designated. In the case of domestic arbitrations, section 41 of the Arbitration Act 1986 similarly provides that an arbitration shall be deemed to commence when one party to the arbitration agreement serves on the other party a notice requiring it to appoint or concur in appointing an arbitrator.
The courts of Bermuda have not addressed whether questions as to limitation are questions of substance or procedure. However, this issue often arises in arbitration proceedings involving “Bermuda Form” insurance policies, where the substantive law is that of New York and the procedural law is that of Bermuda. Section 51 of the 1993 Act expressly refers to and sets out the part of the 1984 Act dealing with foreign limitation periods, the effect of which is that (subject to certain exceptions) the law relating to the limitation of actions is treated as a matter of substance rather than a matter of procedure, and is thus ordinarily governed by the lex causae.
3.7 What is the effect in your jurisdiction of pending insolvency proceedings affecting one or more of the parties to ongoing arbitration proceedings?
Where a winding-up order is made against a company under the Bermuda Companies Act 1981, no arbitration can be commenced or proceeded with against it without the court’s express permission.
In the insurance context, it is possible that the insolvency of the policyholder will give rise to a statutory assignment to a third-party claimant of the policyholder’s rights under the Third Parties (Rights Against Insurers) Act 1963 with the result that the third party becomes subject to any arbitration clause.
A moratorium imposed by foreign insolvency proceedings involving a party to a Bermuda arbitration has no automatic effect on the Bermuda arbitration (although it may be contended in the foreign jurisdiction that pursuing the Bermuda arbitration or seeking anti-suit relief from the Bermuda court is a breach of the moratorium, as a matter of foreign law). In certain circumstances, the Bermuda court may have jurisdiction to recognise and assist the foreign proceedings, exercisable at the request of foreign courts or foreign insolvency officeholders, by imposing a moratorium in Bermuda on actions brought by or against the party subject to the foreign proceedings, including the arbitration. Where foreign court proceedings engage the insolvency jurisdiction of the foreign court, the Bermuda court will limit its interference to matters arising under the contract and it is unlikely to seek to restrain resolution of insolvency questions (e.g. priority, proof of claim, subordination, etc.) by the foreign court. The Supreme Court of Bermuda has recently considered some of these issues in the case of Ironshore Insurance Ltd et al v MF Global Assigned Assets LLC  Bda LR 127.