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25 July 2018
A potentially groundbreaking Federal Supreme Court ruling(1) suggests that the notorious Gini/Durlemann practice may soon be abolished. If so, it would finally facilitate recourses for transport insurers in Switzerland; however, it remains too early to be certain if and when this will happen.
Switzerland is an exotic country when it comes to an insurer's recourse possibilities. Due to the ominous Gini/Durlemann practice applied by the Federal Supreme Court for more than 60 years, insurers may take recourse to the party that is liable under a contract only if the latter acted intentionally or with gross negligence. However, where a simple fault occurs (ie, a merely negligent breach of contract), the insurer is barred from recourse.
While the suggestion that recourse is prohibited in Switzerland is untrue, such a complicated recourse practice makes it unique.
Today, transport insurers are involved in almost every transport damage case. If a transport insurer pays damages by compensating an insured party, it can take recourse against the carrier only if it can establish gross negligence on the part of the carrier. Since the threshold for this is rather high and numerous questions of evidence can arise, many insurers waive recourse in Switzerland from the outset.
The Gini/Durlemann practice has been heavily criticised by scholars for decades and, for obvious reasons, has found no favour in the insurance industry. Nevertheless, the Federal Supreme Court has stuck to it firmly.
In 2006 the Federal Supreme Court slightly restricted Gini/Durlemann for the first time (BGE 132 III 626). The court held that if an insurance contract is subject to foreign law and the transport contract is not subject to national law, but rather international treaties (eg, the Convention on the Contract for the International Carriage of Goods by Road), then Gini/Durlemann would not apply.
In a 2011 decision(2) the Federal Supreme Court recognised that Gini/Durlemann was being heavily criticised and intended to take this into account; however, it did not abolish the practice. At that time, a pending revision to the Insurance Contract Act would have put an end to the Gini/Durlemann practice, but the court held that it was unable to anticipate legislative revisions and decided against changing its practice. Unfortunately, the revision unexpectedly failed in Parliament and Gini/Durlemann thus remained in place.
A new revision is imminent(3). Like the first revision, it aims at abolishing the Gini/Durlemann practice.
The combination of persistent criticism from scholars and clear political intent to abolish this practice created the breeding ground for the Federal Supreme Court's recent ruling.
The Gini/Durlemann practice has not yet been abolished. In its current decision, the Federal Supreme Court allowed an insurer to take recourse against a party liable under a strict liability (ie, under tort rules but without fault). However, the court did not rule on whether this softening of the Gini/Durlemann practice also applies to parties liable under a contractual liability.
Article 72 of the Insurance Contract Act regulates only the insurer's recourse to non-contractual liability (ie, tort and strict liability). The recourse to contractually liable parties is not covered by Article 72, but is exclusively subject to Article 51 of the Code of Obligations.(4) Since the Federal Supreme Court's current decision dealt exclusively with Article 72 of the Insurance Contract Act, it cannot be easily applied to recourses on contractually liable parties. While some scholars have already proclaimed the end of the Gini/Durlemann practice, it remains too early to be certain whether and when this will happen.
However, one point is encouraging: in justifying its change in practice, the Federal Supreme Court explicitly and decisively relied on the political intent to abolish the Gini/Durlemann practice and referred to the planned new Article 95(c) of the Insurance Contract Act.
According to this new provision, insurers' recourse should be permitted against all liable parties (ie, explicitly against contractually liable parties as well).(5) Since it was the explicit idea of the Federal Supreme Court to be guided by this planned revision, it may rightly be assumed that the court would come to the same conclusion if a recourse against a contractually liable party must be decided on. However, such a decision has not yet been published; therefore, for the time being, it seems likely that Gini/Durlemann will be abolished completely, but this has not yet taken place.
The significance of the Federal Supreme Court's ruling for transport insurers may be summarised as follows:
For further information on this topic please contact Stephan Erbe at ThomannFischer by telephone (+41 61 226 24 24) or email (email@example.com). The ThomannFischer website can be accessed at www.thomannfischer.ch.
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