SWITZERLAND Trends and Developments Contributed by: Jodok Wicki, Daniel Zemp, Fabienne von Moos and Doruntina Dembogaj, CMS von Erlach Partners Ltd
eral direct claimants. Insurers should therefore identify all potentially affected claims early, co-ordinate the insured’s and insurer’s positions, and avoid settlement or payment decisions that disregard later claimants. These unresolved issues make collective and quasi- collective claim activity particularly important. Mass Claims and Collective Enforcement Switzerland has no general class action procedure comparable to the US model or the newer EU repre- sentative actions regimes. Several claimants may join proceedings where their claims arise from similar facts or legal grounds, but simple joinder has not become a routine vehicle for large-scale insurance disputes. The absence of a broad representative damages pro- cedure means that procedural aggregation remains limited. That procedural limitation should not be mistaken for an absence of mass claim pressure. Claimants are increasingly organised through co-ordinated man- dates, litigation funding, assignments and claim- purchasing structures. The resulting claims remain formally individual, but they can impose many of the same demands on insurers as collective litigation. Arti- cle 60, paragraph 1bis of the ICA adds to that pres- sure by allowing each injured person with a qualifying claim to approach the insurer directly. Association-based mechanisms and other forms of collective representation do not, in themselves, cre- ate a general process for assessing and paying every individual’s damages. In practice, the principal routes remain individual proceedings, joinder, assignments and negotiated settlements. This makes early map- ping of the claimant population particularly important where the same policy responds to a common event. The principal insurance issue is the risk that the availa- ble limit will be consumed before all claims are known or quantified. The uncertainty over first-come, first- served allocation, proportional distribution and the effect of settlements with the insured makes multi- party resolution difficult. Insurers should maintain a dedicated protocol for mass claims, track exhaustion of limits across policy years and layers, and address co-operation and settlement authority expressly in the policy wording. They should also expect early infor-
mation requests to become more consequential, since the identity of the insurer and any remaining limit may determine whether claims are brought and how they are co-ordinated. Targeted Information Rights and Data Protection Requests Swiss civil procedure still does not provide US-style discovery or a general right to inspect an opponent’s files before suit. The revised ICA nevertheless gives an injured person a targeted information right in man- datory liability insurance. Under Article 60, paragraph 3 of the ICA, the claimant may seek the identity of the liability insurer and information on the nature and extent of cover from the insured or the competent supervisory authority. The provision is limited to man- datory insurance, and BGE 151 III 35 indicates that its application to an older policy follows the same transi- tional logic as the direct action itself. Data protection law supplies a separate, but narrower, route to information. A person may request access to personal data processed by an insurer; depend- ing on the circumstances, this may include medical assessments, expert material or claims documents in so far as they contain the requester’s personal data. The right does not amount to disclosure of the entire claims file and does not automatically reach internal legal analysis, confidential material or third-party infor- mation. The strategic effect is significant. A dispute may begin with a request aimed at identifying the insurer, testing the evidential position or assessing the prospect of recovery rather than with a statement of claim. Insur- ers should treat such requests as potential pre-litiga- tion steps, co-ordinate privacy and claims personnel with litigation counsel, and record the basis for any withholding or redaction. The trend is therefore towards targeted early inves- tigation, not wholesale discovery. It gives claimants a better basis for deciding whether to pursue the insured, the insurer or both, while requiring insurers to protect confidentiality and personal data without overlooking material that may later become central to the merits. This early evidence dynamic also appears in claims for daily sickness benefits policy under the
245 I NSURANCE L I T IGATI O N 2026
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