Born 1968, lic.iur., Attorney-at-law, Partner
Education and Experience
The Federal Court recently considered whether non-incorporated law firms are permitted to adopt the legal form of a company limited by shares. The court held that it is the organisational structure of a law firm which is decisive, not its legal form. A law firm constituted as a company limited by shares is admissible, provided that it is fully controlled by its attorneys, thereby granting it institutional independence.
The Supreme Court recently commented for the first time on the prerequisites under which a board of directors is obliged to place an item requested by a shareholder on the agenda for a general meeting. The court further dealt with the question of whether a company's articles of association may impose certain restrictions on a board's competence to delegate the management of the company's affairs to third parties.
A creditor which requires access to the annual accounts and auditor's report of a stock corporation must prove both its position as a creditor and a legitimate interest. Recently, the Supreme Court reconfirmed the existing practice in both doctrine and jurisdiction, and took the opportunity to specify in more detail the criteria to find an interest warranting protection pursuant to the Code of Obligations.
The Federal Convention is in the process of revising the regulatory regime in relation to statutory limitations. The revision of the respective legislation will extend the existing one-year period to two or even five years and coordinate the various statutes of limitations. This update examines the key aims of the planned revision.
In a recent decision the Supreme Court commented on the prerequisites for the delegation of management by boards of directors. A distinction must be made between internal and external corporate acts. While the delegation of powers for internal affairs requires both a provision in the articles of incorporation and a written organisational resolution, powers regarding external acts may be delegated by power of attorney.
In a recent decision, the Supreme Court had the opportunity to comment on the requirements regarding founders' liability and the calculation method for the respective damages under company law, in particular for a limited liability company. The court held that the common definition of the term 'damages' applied, as opposed to a specific meaning of the term as has been argued for in legal literature.
After spreading from Wuhan to Switzerland in less than three months, the COVID-19 crisis is creating major challenges for Swiss insurers, particularly with regard to whether insurance coverage for the effects of an epidemic also apply to a pandemic. The Swiss Ombudsman of Private Insurance recently commissioned Law Professor Dr Walter Fellmann to issue a legal opinion regarding selected epidemic insurance wordings. This article discusses the conclusions of Fellmann's legal opinion.
The Federal Supreme Court recently addressed the relationship between a contractual forfeiture clause under Article 46(2) of the Federal Insurance Contract Act and the statutory limitation period for insurance claims. Among other things, this decision reconfirms previous case law, according to which forfeiture clauses such as the one at issue are customary in the insurance industry. It also confirms that a contraction forfeiture clause may exist alongside the statutory limitation period.
The Insurance Supervision Act regulates the federal supervision of insurers and insurance intermediaries in Switzerland. Since its enactment in 2006, it has been subject to only selective amendments. However, developments in recent years have made partial revisions to the act necessary. Therefore, the Federal Council recently issued a consultation draft and invited interested parties to submit their comments.
Under the Insurance Contract Act, insurers are not bound by a contract if, for deception purposes, the insured party incorrectly notifies or conceals facts from the insurer which would exclude or reduce the insurer's obligation to provide indemnification. Insurers can therefore refuse payment and withdraw from such contracts. The Federal Supreme Court recently confirmed this to be true even if an insured party does not make false statements directly to the insurer, but rather to a medical doctor who confirms their inability to work.
The Supreme Court recently abandoned its long-standing practice of restricting recourse under the Gini/Durlemann doctrine, which was first adopted in 1954. The court held that any non-contractual liability falls within the meaning of 'prohibited act', including all facts standardised as hazardous or simple causal liability. Private insurers must therefore be treated the same as social insurance carriers with respect to the causally liable party that causes an accident.
The Supreme Court recently dealt with the scope of a full and final settlement clause in an insurance matter. The decision confirms the rules for interpreting settlement agreements in insurance matters and emphasises the importance of carefully drafting the wording of such agreements if they are intended to be full and final settlement agreements of certain insurance claims.
The European Court of Human Rights recently concluded that Switzerland violated Article 8 of the European Human Rights Convention due to surveillance of an insured party. The case brings uncertainty regarding the extent of observation under Swiss law. Article 8 guarantees the fundamental right to respect private and family life. In its statement, the court held that Swiss federal law offers no precise legal basis for photo and video surveillance of insured parties.
In the context of loss of earnings insurance, the Federal Supreme Court recently had to decide whether sickness or the inability to work due to the respective sickness constitutes an insured event and therefore triggers the insurer's duty to provide insurance benefits. The court abandoned its existing case law in which it had appraised the sickness as a primary event for the determination of when the insured event had occurred.
The Federal Supreme Court recently ruled that the regulation in the Freedom of Movement Agreement concerning the liability of new daily benefits insurance for ongoing claims that started before the conclusion of an insurance contract under a previous insurance contract does not breach the prohibition of retroactive coverage according to Article 9 of the Insurance Contract Act.
In 2013 the Federal Parliament rejected a bill for a total revision of the Federal Act on Insurance Contracts, with an order to the Federal Council to elaborate a partial revision on selected subjects. In its second attempt to adapt the law to existing standards and policyholders' need for reasonable and feasible insurance protection, the Federal Council drafted an amended bill and recently initiated consultation proceedings on the proposals.
The Federal Court has ruled that no or insufficient disclosure of indicating circumstances by an insured party falls under Article 6 of the Insurance Contract Act if this information was relevant in determining the probability of the risk which later was realised and caused damage. Further, the court held that the insurer is freed from its contractual payment obligation if it terminated the insurance contract within the required time.
The Federal Supreme Court recently rendered a rare judgment on the temporal scope of liability policies and the claims-made principle. Although it may lead to a broader scope of covered claims, the decision should be seen in a positive light, as it brings additional clarity with regard to the interpretation of claims-made clauses in insurance policies.
The need for further revision to the Insurance Supervisory Law has been revealed through the introduction of risk-based solvency measuring methods, including the Swiss Solvency Test. The establishment of the test as the sole instrument for testing solvency and a focus on Solvency II will result in harmonisation, while revisions to the Insurance Supervisory Ordinance should see increased reporting efforts.
As highly qualified specialists in risk assessment, reinsurers deal with nanotechnology as an emerging risk. The small amount of available data regarding nanoparticles complicates insurers' risk assessments and has led to calls for future-oriented coping strategies that identify, record and analyse risks and implement appropriate measures. Not all risks are insurable: a risk must be measurable and financially definable to qualify for insurance.
The Federal Supreme Court recently issued a decision on the rule of ambiguity in the context of the interpretation of general insurance terms. The court found that a provision which excludes accidents as a result of the deliberate causation of a crime or offence is neither considered unusual nor ambiguous, and can therefore validly be relied upon by the insurer.
The Federal Supreme Court recently held that general terms and conditions can be validly included in an insurance contract even if no reference is made to a particular version or edition, provided that the reference to the general terms and conditions is made expressly in the application form. In such a case, the general terms and conditions in force at the time of signing of the application will apply.
The Federal Supreme Court recently quashed a criminal verdict and held that insurance fraud by omission requires a qualified duty of the perpetrator to act. The ruling makes it clear that insurers should enquire regularly into changes in insureds' circumstances. By continuing payment of insurance benefits without enquiry, an insurer cannot hold an insured criminally liable for fraud.
A recent Federal Supreme Court case clarified that the general limitation regime applies with regard to the underlying right for loss-of-income insurance, unless a special rule is stipulated. According to the court, the scope of the Insurance Contract Act is limited to individual instalments paid under the insurance contract. The court also defined the point in time at which the limitation period starts running.
A revised Financial Market Supervisory Authority circular containing rules on market conduct now applies to insurance companies. Insurers must take the organisational measures necessary to fulfil the duties laid down by the circular. While the insurance industry is sceptical, it remains to be seen what the practical impact on insurers will be.
The Federal Supreme Court recently dismissed the appeal of an insured individual who challenged the rescission of a private insurance contract for misrepresentation. The court confirmed the strict rules for the disclosure of conclusive risk factors when concluding private insurance agreements and outlined the reasons which entitle an insurer to terminate a policy for misrepresentation.
The Federal Supreme Court recently ruled on the applicable prescription period for loss-of-income insurance. The decision clarifies the prescription period regarding the underlying right for this type of insurance with periodic payments. The draft of the revised Insurance Contracts Act suggests that the prescription period should be amended from two years to five years.
The Federal Court recently rendered two decisions in favour of state insurers which hold a monopoly. In its leading case, the court ruled that when insuring buildings under state monopoly, state insurer Glarnersach of Glarus Canton may also compete with private insurance companies. In its second decision, the court dismissed a licence challenge by the Swiss Insurance Association and two private insurers.
The Swiss Financial Market Supervisory Authority (FINMA) recently published for consultation a draft of its new circular that aims to illustrate in detail the provisions of supervisory law regarding risk management by defining principles for reporting on liquidity. FINMA requires that insurers file a liquidity report covering the points raised and the criteria outlined in the circular at least once a year.