SWITZERLAND Trends and Developments Contributed by: Jodok Wicki, Daniel Zemp, Fabienne von Moos and Doruntina Dembogaj, CMS von Erlach Partners Ltd
For insurers, the consequence is a more complex three-way dispute. In a non-mandatory policy, a claimant who sues directly must address both the insured’s liability and policy limitations without hav- ing been a party to the policy. Claims teams must therefore keep the liability and coverage analyses dis- tinct while managing them in the same file. Policyhold- ers may also face conflicting interests if the insurer controls the defence or seeks to rely on a coverage defence. Review of co-operation provisions, claims- handling authority and the treatment of defence costs is consequently becoming more important, especially where the same event may generate direct claims by several parties. Transitional Law: BGE 151 III 35 Creates a Two- Track Regime Article 103a of the ICA provides that, for contracts concluded before the revision of the ICA entered into force in January 2022, the new formal requirements and termination rights in Article 35a and 35b of the ICA apply. It does not expressly mention the direct action right. Before 2025, the principal dispute was whether this omission left room for the general tran- sitional rules in the Final Title of the Civil Code (CC), on the basis that the direct action is a statutory right affecting a third party rather than a term of the insur- ance contract. In BGE 151 III 35, the Federal Supreme Court treated Article 103a of the ICA as an exhaustive transitional provision for the 2022 revision. The reference to con- tracts was understood broadly: the direct action right, the information right in Article 60, paragraph 3 of the ICA, the defence restrictions in Article 59, paragraph 3 of the ICA and the recourse regime in Article 95c of the ICA all presuppose a policy and are therefore part of the transitional analysis. Only the provisions expressly preserved by Article 103a of the ICA apply to a contract concluded before 1 January 2022. The Federal Supreme Court accordingly rejected a direct claim based on such a policy, without making the date of the damaging event decisive. It also emphasised that retroactive exposure would affect the risk and premium assumptions on which existing policies were written.
The ruling leaves a durable two-track system. New contracts concluded on or after 1 January 2022 are governed by the revised provisions. A mere automatic prolongation of an existing policy does not necessar- ily create a new contract, whereas a material change, such as a significant expansion of insured risks or a new insurance interest, may do so. Parties may also agree to apply the revised regime to an earlier policy, a solution used in practice. The result is that claims teams must review the original policy, renewal and amendment documents, the temporal trigger and any claims-made wording before assuming that a direct action, the Article 59, paragraph 3 protections or Article 95c recourse is available. The distinction may remain relevant for years because liability poli- cies are often long-term arrangements. That temporal question leads directly to the procedural issues that determine how a direct claim is brought and managed. Procedural Uncertainty and Multi-Claimant Exposure The ICA does not allocate jurisdiction for a claim under Article 60, paragraph 1bis. Domestically, the insurer’s seat and Swiss branch offices provide the uncontroversial starting points under Articles 10 and 12 of the Civil Procedure Code (CPC). A growing line of analysis would also apply the tort jurisdiction in Article 36 of the CPC, including the place of the act, the place of damage and, in appropriate cases, the claimant’s domicile. A recent analysis argues that jurisdiction should follow the underlying liability claim rather than the policy’s coverage relationship. That approach could also bring a commercial, employment or tenancy court into play. The issue remains open in court practice. In cross-border disputes, the Lugano Convention and the Odenbreit line of authority may support a claimant forum, while Articles 131 and 141 of the Private International Law Act (PILA) govern cases outside an applicable treaty. Separate uncertainties concern the insured’s partici- pation in the proceedings and the treatment of com- peting claims. The ICA does not set out a specific duty to co-operate with a direct action. Good faith and the duty to mitigate loss may provide a basis, and policy conditions commonly add more detailed obligations, but their scope is untested. Nor is there a settled rule for distributing an insufficient policy limit among sev-
244 I NSURANCE L I T IGATI O N 2026
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