SWITZERLAND Law and Practice Contributed by: Jodok Wicki, Daniel Zemp, Fabienne von Moos and Doruntina Dembogaj, CMS von Erlach Partners Ltd
Confidentiality Swiss-seated arbitration proceedings are confidential. Challenge An arbitral award by a tribunal seated in Switzerland may be challenged only before the Swiss Federal Supreme Court on the narrow grounds in Article 190 (2) of the PILA, including:
ing the complexity already during the claims handling for large-value claims. The right of direct action introduced in 2022 is also showing effect and leading to the first claims by dam- aged parties against insurers. In particular in the area of D&O and in the event of bankruptcies, this may raise complexity because of the need to co-ordinate with the bankruptcy administration. 4.2 Policy Wordings and Interpretation Developments Interpretation of policy wordings follows the general rules for contract interpretations under Swiss law. Swiss courts start with the parties’ true intention and, if it cannot be proved, presumed intention assessed objectively (see 1.2 Role of Policy Wording and Draft- ing ). They read the policy as a whole and may con- sider professional experience and broker involvement. Article 33 of the ICA requires an exclusion of an indi- vidual event to be specific and unambiguous; the Unklarheitsregel applies only when other methods of interpretation leave a decisive uncertainty. Under Article 45 of the ICA, denial or reduction for breach depends on the agreed term, but does not operate by law where the insured was not at fault or proves that the breach did not influence the event or the insurer’s performance. Calling a duty a “condi- tion precedent” therefore does not replace analysis of the factual effect of non-compliance (see 1.2 Role of Policy Wording and Drafting regarding the import of English-law labels). 4.3 Cyber and Technology-Related Coverage Issues Technology Risks Remain Wording-Led Cyber, AI and technology-failure claims are likely to be decided through ordinary contract, causation and trigger principles. Ransomware disputes may concern ransom, negotiation, forensic and restora- tion costs; business-email-compromise claims may turn on crime, funds-transfer fraud or cyber wording, social engineering and authentication controls. Data- recovery and business-interruption claims raise bet- terment, restoration, waiting-period, dependency and lost-profit issues, while incident-response and privacy
• lack of jurisdiction; • an irregular tribunal;
• a decision beyond the submissions; • serious due-process violations; or • incompatibility with public policy.
There is no general appeal on the merits. Appeals in commercial arbitration are usually dismissed (success rate below 5%). If none of the parties is domiciled or seated in Switzerland, the right to appeal may be excluded by agreement of the parties under Article 192 of the PILA. For domestic awards, the CPC pro- vides annulment proceedings and permits an appeal to a second arbitral tribunal; there is no general appeal on the merits. 4. Coverage Disputes 4.1 Evolving Trends in Coverage Disputes A recent Federal Court decision concerned the inter- pretation of a master policy and the operation of pri- or-knowledge/claims-made provisions and potential coverage gaps when insurance policies are renewed. Coverage disputes in connection with the COVID-19 wave tested epidemic clauses and pandemic exclu- sions and whether successive government orders qualify as a single insured event. Cyber is another key emerging trend, for example new thread actors or the interplay between ransom payments and sanctions. The Swiss legal landscape became increasingly liti- gious in the last five to ten years. Disputes that earlier were resolved by agreement or by a settlement after a first exchange of briefs are now more often pursued to court and to a final decision. This trend applies also in the insurance sector. In practice, this results in brokers and insureds taking more often a litigation- minded approach during the claims handling, increas-
231 I NSURANCE L I T IGATI O N 2026
CHAMBERS.COM
Powered by FlippingBook