SWITZERLAND Law and Practice Contributed by: Peter Ch Hsu, Daniel Flühmann and Tiffany Ender, Bär & Karrer
11. Emerging Risks and New Products 11.1 Emerging Risks Affecting the Insurance Market Emerging risks are new risks that are not recognisable or only recognisable to a very limited extent (eg, health risks regarding asbestos). Their damage potential is difficult to estimate and there is often a long time gap between the cause and the occurrence of the conse- quences or the realisation of the risk. The full dam- age potential usually only crystallises at a later point in time. Dealing with emerging risks poses a major challenge for society, the regulator and the insurance industry. In connection with emerging risks, the question arises, in particular, as to who should be liable for risks that were not identifiable, according to the state of the art in science and technology, at the time of their place- ment on the market (so-called development risks). In Switzerland, liability may, inter alia, arise from con- tractual law, the Swiss Federal Product Safety Act (ProdSA), the Swiss Federal Product Liability Act (PLA) or the employment relationship. In this context, the statute of limitation plays a major role. The limitation period varies depending on the basis of the claim, eg: • general non-contractual liability – three years after the injured party has become aware of the damage and of the liable person or, in principle, ten years after the date on which the damage was caused (Article 60 CO); • product liability – three years after the injured party has become aware of the damage, the mistake and the identity of the producer (Article 9 PLA) or ten years after the date on which the product that caused the damage was placed on the market (Article 10 PLA); and • contractual liability – in principle ten years (Article 127 CO). With the entry into force of the new rules on 1 Janu- ary 2020, the statute of limitations has partially been extended (eg, the absolute statutes of limitations for claims based on long-term health damage or death were extended from ten to 20 years (eg, in the case of asbestos; Article 60 paragraph 1bis CO)).
• Comparison portals offer easy comparison between various (insurance) products and provider types (eg, Comparis, Anivo and wefox in Switzer- land). • Peer-to-peer insurance enables grouping of insured persons (eg, Versicherix in Switzerland). • Health insurance uses health data originating from a new data source. • On-demand insurance offers short-term and situation-related insurance (eg, Simpego in Swit- zerland). Furthermore, insurtech encompasses new technology solutions for insurance undertakings, enabling them to increase efficiency of their own value chain through the use of artificial intelligence, blockchain applica- tions or Internet of Things (IoT) devices. In Switzer- land, eg, the B3i Initiative, cardossier or formerly Fizzy are examples of blockchain-based insurtechs that, in particular, aim to automate the insurance business. If an insurance undertaking participates in an insurtech start-up, the licensing and information requirements pursuant to the ISA must be observed (see 4. Trans- action Activity ). In addition to the insurance business, the insurance undertaking is allowed to conduct busi- ness that is related to the insurance business. If the business is unrelated to the insurance business, the insurance undertaking has to obtain prior approval from FINMA (Article 11 paragraph 1 ISA). 10.2 Regulatory Response Since 2016, the Swiss Federal Council has gradu- ally been introducing regulatory reliefs for fintech and insurtech businesses. In particular, the Swiss Federal Council can exempt insurance undertakings with innovative business models from supervision (Article 2 paragraph 5 litera b ISA). Further, the ISO provides for relief and exemption from supervision (see Article 1e et seq ISO; see 12.1 Significant Legislative or Regulatory Developments ).
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