SWITZERLAND Law and Practice Contributed by: Peter Ch Hsu, Daniel Flühmann and Tiffany Ender, Bär & Karrer
Bär & Karrer Ltd Brandschenkestrasse 90 8002 Zurich Switzerland Tel: +41 58 261 50 00 Fax: +41 58 261 50 01 Email: zurich@baerkarrer.ch Web: www.baerkarrer.ch
1. Basis of Insurance and Reinsurance Law 1.1 Sources of Insurance and Reinsurance Law he Swiss legal framework for private insurance is based in particular on the laws and regulations set out below. Federal Regulations The Federal Insurance Contract Act (ICA) and, subsid- iarily, the Swiss Code of Obligations (CO), govern the contractual relationship between insurance undertak- ing, policyholder and insured (Article 100 paragraph 1 ICA). The ICA applies to direct insurance contracts underwritten by insurance undertakings subject to supervision by the Swiss Financial Market Supervi- sory Authority FINMA (FINMA; Article 101 paragraph 1 no 2 e contrario ICA). Reinsurance contracts are outside the scope of the ICA and are consequently only subject to the general contract law provisions of the CO (Article 101 paragraph 1 no 1 and paragraph 2 ICA; see 6.6 Consumer Contracts or Reinsurance Contracts ). The partially revised ICA entered into force on 1 January 2022. The Federal Insurance Supervision Act (ISA) sets out the regulatory requirements for insurance and reinsurance undertakings, insurance intermediaries, insurance groups and conglomerates and insurance special purpose companies domiciled in Switzerland (Article 1 paragraph 1 ISA). On 1 January 2024, the revised ISA and Federal Ordinance on the Supervi-
sion of Private Insurance Companies (ISO) entered into force. Supplemental Ordinances The ISA is supplemented by the following implement- ing ordinances: • the ISO; • the FINMA-Ordinance on the Supervision of Private Insurance Companies (ISO-FINMA); and • the FINMA Insolvency Ordinance. Other Provisions In addition to the core insurance laws and ordinances listed above, other bodies of law contain relevant pro- visions with regard to insurance and reinsurance (eg, general consumer protection law, data protection law or the law against unfair competition). Furthermore, Switzerland is a party to four international treaties on direct insurance that supersede the ISA (see 3.1 Overseas-Based Insurers or Reinsurers ): • the Agreement of 10 October 1989 between the Swiss Confederation and the European Economic Community (now the EU) on Direct Insurance other than Life Insurance (EU Direct Insurance Treaty); • the Agreement of 19 December 1996 between the Swiss Confederation and the Principality of Liech- tenstein on Direct Insurance and Insurance Inter- mediaries (Liechtenstein Direct Insurance Treaty) which is supplemented by the agreement of 10 July 2015 on insurance against natural disasters by private insurance undertakings;
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