SWITZERLAND Law and Practice Contributed by: Peter Ch Hsu, Daniel Flühmann and Tiffany Ender, Bär & Karrer
compensation can be refused entirely (Article 14 para- graph 1 ICA).
the date of the triggering event that raises the obli- gation to provide indemnification. However, the stat- ute of limitation for collective insurance for per diem indemnity for sickness ( Krankentaggeldversicherung ) is restricted to two years. The statute of limitations cannot be contractually shortened (Article 46 ICA). Reinsurance contracts are not subject to the ICA (see 6.6 Consumer Contracts or Reinsurance Contracts ). Therefore, the general provision of the CO on the stat- ute of limitations for contractual claims of ten years running as of the day on which the claim becomes due applies to claims based on a reinsurance contract (Article 127 CO). This limitation period cannot be con- tractually altered (Article 129 CO). 9.2 Insurance Disputes Over Jurisdiction and Choice of Law Domestic Disputes In a domestic context, choices of forum are, in prin- ciple, admissible (Article 17 CPC). However, if an insurance contract qualifies as a consumer contract according to Article 32 CPC, a choice of forum can be concluded only after a dispute has arisen (Article 35 paragraph 1 litera a and paragraph 2 CPC). Switzerland is a contracting state of the Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Lugano Convention). The Lugano Conven- tion applies if there is, inter alia, a connecting factor to a contracting state. The connecting factors need to be determined separately for each provision in the Lugano Convention. Please note that as a result of Brexit, the United Kingdom is no longer a contract- ing state of the Lugano Convention. (However, on 1 January 2025, the Hague Convention on Choice of Court Agreements entered into force, to which, inter alia, Switzerland and the UK are parties. It governs the validity of agreements on jurisdiction, the jurisdiction of agreed courts in international commercial disputes, and the cross-border recognition and enforcement of court judgments.) International Disputes The Lugano Convention The Lugano Convention provides for special jurisdic- tion rules with regard to insurance matters (Article 8 et
9. Insurance Disputes 9.1 Insurance Disputes Over Coverage In Switzerland, the parties to an insurance contract often seek out-of-court settlements; litigation and arbitration are relatively rare. An insured may also con- sult the Swiss Ombudsman of Private Insurance and of Suva (the Ombudsman) if the insurance undertaking is a member company. However, the Ombudsman has no decision-making powers. If no out-of-court settlement can be reached, claims under insurance contracts need to be settled in civil proceedings. They are, in principle, subject to the jurisdiction of the civil courts (Article 85 paragraph 1 ISA), unless the contract provides for an arbitration clause (see 9.5 Enforcement of Arbitration Clauses ). In a domestic context, the general rules of the Swiss Civil Procedure Code (CPC) apply, and, in principle, the ordinary court at the domicile or registered office of the defendant, or at the place where the character- istic performance must be rendered, has jurisdiction (Article 31 CPC). There are only a few insurance-spe- cific (Article 38 paragraph 1 CPC with regard to motor vehicle or bicycle accidents) and consumer-specific provisions (Article 32 paragraph 1 CPC). Usually, the policyholder has a direct claim against the insurance undertaking – eg, under a collective acci- dent or health insurance contract (see 6.5 Multiple Insured or Potential Beneficiaries ), and an unnamed beneficiary (in whose favour the policyholder con- cluded the insurance contract) has an independent claim against the insurance undertaking if the acci- dent or illness occurs (Article 95a ICA). In this case, the beneficiary can take direct proceedings against the insurance undertaking. The same applies in princi- ple to insurance for the benefit of third parties (Article 78 ICA). Statute of Limitations Claims based on an insurance contract are, in princi- ple, subject to a statute of limitations of five years from
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