Badertscher Attorneys at Law updates
Forfeiture clauses versus statute of limitations
Badertscher Attorneys at Law- Insurance
- Switzerland
- 24 September 2019
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.
Insurance Supervision Act partially revised
Badertscher Attorneys at Law- Insurance
- Switzerland
- 28 May 2019
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.
Enforcing board members' information rights
Badertscher Attorneys at Law- Company & Commercial
- Switzerland
- 25 March 2019
The Federal Supreme Court recently considered – for the first time – whether board members' rights to information, inspection and insight can also be asserted on an appeal basis. The court also commented on the type of procedure applicable in such cases. This decision should be taken into account by board members who lack evidence or knowledge of important or necessary information, particularly if it relates to the organisation of or disputed relationships within the board of directors.
Insurers' contractual obligations in case of fraudulent claims
Badertscher Attorneys at Law- Insurance
- Switzerland
- 25 September 2018
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.
Right of recourse in insurance law: end of Gini/Durlemann practice
Badertscher Attorneys at Law- Insurance
- Switzerland
- 26 June 2018
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.
Supreme Court: scope of full and final settlement clause in insurance matters
Badertscher Attorneys at Law- Insurance
- Switzerland
- 27 February 2018
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.
Shareholders' agreements for closely held companies under Swiss law
Badertscher Attorneys at Law- Company & Commercial
- Switzerland
- 13 November 2017
Shareholders of closely held companies often mutually agree on additional contractual rights and duties. However, the company itself cannot be a contract party to a separate shareholders' agreement. Apart from that legal restriction, such shareholders' agreements usually benefit from the contractual freedom of the parties. A recent Federal Court decision confirmed that such agreements may be recharacterised as abusive or contrary to the principle of good faith.
Is surveillance of insured parties lawful?
Badertscher Attorneys at Law- Insurance
- Switzerland
- 24 October 2017
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.
Triggering event for insurance benefits in loss of earnings insurance
Badertscher Attorneys at Law- Insurance
- Switzerland
- 23 May 2017
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.
Interpretation of company articles in Sika takeover battle
Badertscher Attorneys at Law- Company & Commercial
- Switzerland
- 22 May 2017
A recent Zug Cantonal Court decision sheds light on the way that Swiss company articles of association must be interpreted under Swiss company law in cases in which they are not only applicable internally among a few shareholders, but also have an effect on third parties. The decision confirms that the observation of merely the letter and not the spirit of company articles by a company board or majority company shareholders in a general meeting can even amount to an abuse of law.
Liability for ongoing daily benefits insurance claims under Freedom of Movement Agreement
Badertscher Attorneys at Law- Insurance
- Switzerland
- 24 January 2017
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.
Partial revision of Federal Act on Insurance Contracts
Badertscher Attorneys at Law- Insurance
- Switzerland
- 27 September 2016
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.
New Federal Court decision on business judgement rule
Badertscher Attorneys at Law- Company & Commercial
- Switzerland
- 05 September 2016
A recent Swiss Federal Court decision clarified the circumstances under which the personal liability of board members or managers of a Swiss company for their business decisions and omissions can be reduced by applying the so-called 'business judgement' rule or, if the related prerequisites are not met in a particular case, based on other grounds.
Insufficient disclosure of indicating circumstances in insurance contracts
Badertscher Attorneys at Law- Insurance
- Switzerland
- 17 May 2016
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.
Defects in company organisation caused by deadlock
Badertscher Attorneys at Law- Company & Commercial
- Switzerland
- 07 March 2016
The Federal Supreme Court recently clarified how to deal with defects in company organisation caused by deadlock between two equal shareholders. For the first time the court has confirmed that courts are authorised to order a share auction in such cases. However, it is strongly recommended that such a harsh outcome be avoided by installing suitable measures to solve conflicts from the outset.
Supreme Court rules on liability policies and claims-made principle
Badertscher Attorneys at Law- Insurance
- Switzerland
- 19 January 2016
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.
Amended rules on insurance supervision
Badertscher Attorneys at Law- Insurance
- Switzerland
- 13 October 2015
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.
New anti-money laundering rules affect bearer shares in Swiss companies
Badertscher Attorneys at Law- Company & Commercial
- Switzerland
- 12 October 2015
On July 1 2015 a new regime for bearer shares in Swiss companies was enacted, introducing new legal obligations for company boards and shareholders and severe penalties for cases of non-compliance. To achieve transparency the Code of Obligations established a general duty for all owners of bearer shares in non-listed Swiss companies to disclose their ownership, identity and address to the company within one month of their acquisition.
Franchise agreements – pre-contractual information requirements
Badertscher Attorneys at Law- Franchising
- Switzerland
- 28 July 2015
Before the conclusion of a new franchise agreement, franchisors usually have more knowledge than franchisees about the particular franchise. A franchisee thus risks entering into a permanent binding contract without an accurate prior assessment of the consequences. To counterbalance this information asymmetry, certain duties of care are imposed, of which the franchisor's pre-contractual information obligations are paramount.
Nanotechnology – can insurance play a role in regulation?
Badertscher Attorneys at Law- Insurance
- Switzerland
- 16 June 2015
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.
