Insurance and reinsurance in Switzerland: overview
A Q&A guide to insurance and reinsurance law in Switzerland.
The Q&A gives a high level overview of the market trends and regulatory framework in the insurance and reinsurance market; the definitions for a contract of insurance and a contract of reinsurance; the regulation of insurance and reinsurance contracts; the forms of corporate organisation an insurer can take; and the regulation of insurers and reinsurers, including regulation of the transfer of risk. It also covers: operating restrictions for insurance and reinsurance entities; reinsurance monitoring and disclosure requirements; content requirements for policies and implied terms; insurance and reinsurance claims; remedies; insolvency of insurance and reinsurance providers; taxation; dispute resolution; and proposals for reform. Finally, it provides websites and brief details for the main insurance/reinsurance trade organisations in Switzerland.
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This Q&A is part of the global guide to insurance and reinsurance. For a full list of jurisdictional Q&As visit www.practicallaw.com/insurance-guide.
Market trends and regulatory framework
Switzerland provides an attractive environment for insurance and reinsurance undertakings. Many of the global key players are based in Switzerland.
The institutions subject to the supervision of the Swiss Financial Market Supervisory Authority FINMA (FINMA) include (by year end 2014, Insurance Market Report 2014, FINMA):
21 life insurance undertakings, including branches of foreign insurance undertakings (previous year: 23). The two insurance undertakings Swiss Life and AXA Leben have a combined market share of over 57%.
104 non-life insurance undertakings, including branches of foreign insurance undertakings (previous year: 103). The four insurance undertakings AXA Versicherungen, Zürich Versicherungen, Schweizerische Mobiliar and Allianz Suisse have a combined market share of over 58%.
29 reinsurance undertakings (previous year: 28).
33 reinsurance captives (previous year: 34).
Seven insurance groups or insurance conglomerates (previous year: eight).
Total gross premiums booked by all market participants in Switzerland (including branches of foreign insurance undertakings) for the business year 2014 amount to CHF124.3 billion.
For information on the market trends and legal developments influencing reform in the insurance sector, see Question 36.
The trend of relocations of reinsurance business into Switzerland continued, particularly the establishment of Swiss reinsurance branches.
The Swiss regulatory framework on private insurance includes two main legislative acts, supplemented by a number of implementing ordinances:
The Federal Insurance Supervision Act (ISA, substantially revised in 2006), the Federal Ordinance on the Supervision of Private Insurance Companies (ISO; a partial revision entered into force on 1 July 2015) and the FINMA-Ordinance on the Supervision of Private Insurance Companies (ISO-FINMA, a partial revision entered into force on 15 December 2015) provide the regulatory requirements for insurance and reinsurance undertakings and insurance intermediation in Switzerland. The FINMA-Ordinance on Insurance Bankruptcy (IBO-FINMA), which entered into force on 1 January 2013, is an addition to this body of rules.
The Federal Insurance Contract Act (ICA), which applies to insurance contracts and regulates the civil law relationship between insurer, policyholder and insured. The Swiss parliament recently instructed the Federal Council to draft a new proposal for a partial revision of ICA (see Question 1).
In addition, FINMA further specifies financial regulation, including insurance regulation, in numerous circulars. FINMA circulars are in principle not binding for Swiss courts but constitute an interpretation of the applicable law by FINMA. However, FINMA circulars can in many instances be considered as de facto binding for insurance undertakings since a violation may potentially lead to regulatory sanctions.
Specific rules apply to insurance groups and insurance conglomerates (in particular, Article 64 et seq, ISA, Article 191 et seq, ISO on insurance groups and Article 72 et seq, ISA, Article 204 et seq, ISO on insurance conglomerates).
Two or more companies constitute an insurance group if all of the following conditions are met (Article 64, ISA):
At least one company in the group is an insurance company.
The companies are, as a whole, primarily engaged in the field of insurance.
The companies constitute an economic unit or are otherwise connected to each other through influence or control.
Two or more companies constitute an insurance conglomerate if all of the following conditions are met (Article 72, ISA):
At least one company in the group is an insurance company.
At least one company in the group is a bank or securities dealer of major economic importance.
The companies are, as a whole, primarily engaged in the field of insurance.
The companies constitute an economic unit or are otherwise connected to each other through influence or control.
If a Swiss company belongs to an insurance group or conglomerate in the manner set out above, FINMA can impose its consolidated supervision on the insurance group or conglomerate, if one of the following conditions is met (Article 65, ISA):
The group is effectively managed from Switzerland.
The group is effectively managed abroad, but is not subject to an equivalent group supervision there.
Consolidated group supervision applies in addition to FINMA's individual supervision over the Swiss insurance undertakings (or other regulated Swiss entities) in a group or conglomerate.
Certain private insurance fields are exempt from the regime outlined above. They are regulated by special laws instead, such as the Health Insurance Act (HIA) (governing compulsory health insurance) and the Federal Law on Occupational Retirement (governing compulsory occupational pension schemes).
FINMA is the supervisory authority for financial institutions, including insurance and reinsurance undertakings as well as insurance intermediaries within the scope of ISA. FINMA was established in 2009 by the Federal Act on the Swiss Financial Market Supervisory Authority (FINMASA), as a unified supervisory authority. FINMA also supervises other financial institutions (including banks, securities dealers and collective investment schemes). FINMA's primary tasks are to protect the interests of insured persons, creditors and investors and to ensure the proper functioning of the financial markets. To perform its tasks, FINMA uses instruments such as licensing, supervision, enforcement and regulation.
Certain private insurance undertakings are supervised by other authorities based on special federal legislation. For example, insurance undertakings offering compulsory health insurance are supervised by the Federal Office of Public Health and pension institutions by cantonal supervisory bodies.
Regulation of insurance and reinsurance contracts
Swiss insurance legislation lacks a specific definition of the term insurance or contract of insurance. The Swiss Federal Supreme Court has defined a contract of insurance as a contract under which an insurer promises an economic performance to an insured (or a third person) in case of the realisation of a risk in exchange for payment of a premium. (for example, Swiss Federal Supreme Court decision 124 III 382, page 397).
The basic defining elements for an insurance contract are the transfer of risk against payment. Transfer of risk means that the insured must have an interest that he is protecting against a certain danger by means of the insurers' economic performance. The Swiss Federal Supreme Court has established two additional requirements that are particularly relevant from an insurance supervisory law perspective, but may also need to be considered in the context of the definition of a contract of insurance: one is the requirement that the insurance contract must be an autonomous or independent agreement and the other is that the insurer must compensate any risks according to the laws of statistics. Consequently, according to the practical definition elaborated and constantly used in case law, the concept of insurance in Swiss law rests on the following five elements:
Risk or danger. Risk can be defined as a future event whose occurrence is both uncertain and in fact possible. There must be either uncertainty as to whether the future event will occur at all or uncertainty as to when the future event will occur (incertus an or incertus quando).
Performance by the insured (that is, a premium payment). The premium is, in principle, the price the insured pays in exchange for the performance by the insurer in the event that the insured risk materialises. Although the Swiss Federal Supreme Court often uses the term "performance by the insured", it is also possible that the premium is not paid by the insured. For example, it could be paid by a policyholder.
Performance by the insurer. The contract must include the obligation of the insurer (and therefore the right of the insured) to perform to the insured or another beneficiary if the insured risk materialises. Usually, the insurer pays to the insured an amount of money, but performance can also consist of a payment in kind, the waiver of a claim against the insured or any other conduct or benefit in favour of the insured or according to his will, including omissions. According to recent legal literature, performance can also consist of the rendering of services (for example, legal protection insurance).
Independence of the operation. The contract of insurance must be an autonomous agreement, in contrast to the situation where the obligation to pay on realisation of a risk is ancillary to or a simple term of a non-insurance contract.
Compensation of risks according to the laws of statistics (systematic business activity). Case law has not developed one single definition for this element. Instead, various court decisions have emphasised different criteria such as the systematic business activity, the distribution of risk according to the law of large numbers, the consideration of the principles of statistics, and the requirement that the earnings are equal to or supersede the expenses. However, the Supreme Court also held that it is not necessary that the business activity must be based on insurance mathematics.
Contracts of insurance often have similarities to other types of contracts. In particular, insurance contracts must be distinguished from:
Contracts of gambling and betting. If a contract fulfils the above requirements but does not offer protection against possible future damage or loss, it qualifies as a contract of gambling and betting rather than as an insurance contract.
Warranties, guaranties and other surety contracts. The qualification of such contracts as an insurance contract depends on the question whether they constitute an autonomous agreement. Especially in the field of surety contracts issued by banks, there are no clear-cut criteria to answer this question. In these cases an important, but not necessarily conclusive, fall-back indication is whether the contract has been concluded by a licensed bank or by a licensed insurance undertaking.
Financial contracts (for example, hedging contracts, swaps and derivatives). Similar to surety contracts, there are financial contracts that meet the above criteria of insurance contracts without necessarily qualifying as insurance contracts. Again, there are no clear-cut criteria and the decision may be strongly influenced by the question of whether a financial institution or an insurance undertaking has entered into the contract.
The ICA contains a variety of mandatory and non-mandatory provisions regarding the contract of insurance.In the absence of specific ICA rules, the provisions of the Swiss Code of Obligations (CO) apply to insurance contracts.
By contrast, reinsurance contracts are excluded from the scope of the ICA. They are subject to the provisions of the CO to the extent that Swiss law applies.
The ICA applies to all insurance contracts except for:
Contracts excluded from the scope of the ICA are subject to the provisions of the CO (Article 101, paragraph 2, ICA).
Regulation of insurers and reinsurers
Both Swiss insurance and reinsurance undertakings and insurance undertakings domiciled abroad are supervised under the ISA in respect of insurance activities conducted in or from Switzerland (subject to differing provisions in international treaties) (Article 2, paragraph 1, ISA). Insurance undertakings domiciled abroad engaged only in reinsurance activities in Switzerland are exempt from supervision under the ISA (Article 2, paragraph 2a, ISA).
While basic regulatory requirements are, in principle, the same for all supervised institutions, the following points are worth noting:
The minimum capital requirements differ depending on the scope of insurance activities (Article 8, ISA).
The ISA contains supplementary provisions which only apply to certain types of insurance activities (Versicherungszweige) (Article 31 et seq, ISA).
Additional requirements apply for foreign insurance undertakings (Article 15, ISA) (see Question 9).
Companies engaged only in the reinsurance business are exempt from certain regulatory requirements under the ISA (for example, the provisions on tied assets (gebundenes Vermögen) (Article 35, ISA). Special provisions apply to the consolidated supervision of insurance groups and insurance conglomerates (see Question 2).
In addition, the ISA does not apply to:
Public insurance undertakings (for example, cantonal building insurance companies).
Private insurance undertakings that are regulated by special federal legislation (for example, pension institutions or health insurance undertakings offering compulsory health insurance) (Article 2, paragraph 2b, ISA).
However, these insurers are either regulated by cantonal law or special federal legislation. In addition, certain insurance co-operatives with a very limited scope of business and where the insured are also members of the co-operative are exempt from supervision by FINMA under the ISA (Article 2, paragraph 2d, ISA). FINMA further has the option to apply a general de minimis exemption to undertakings whose activities are economically insignificant or only pertain to a small group of insured persons, but rarely does so in practice (Article 2, paragraph 3, ISA).
Insurance and reinsurance undertakings are in principle only allowed to engage in activities directly related to their primary business (Article 11, paragraph 1, ISA). However, FINMA can approve the conduct of other activities if it considers they do not compromise the interests of the insured (Article 11, paragraph 2, ISA). A stricter rule applies to insurance undertakings active in primary life insurance, which are limited to supplementary engagements in accident and health insurance (Article 12, ISA).
Insurance companies that have obtained a specific licence within the subset of life insurance licences are allowed to conclude capitalisation contracts. These are contracts where the insurers do not carry any biometric risks, that is, risks related to the duration of an insured person's life, an insured person's disability or state of health or too little risk to qualify as life insurance in the meaning of ISA (Appendix 1, ISO, classification A.6). The insurers offering such contracts remain under insurance supervision and do not fall under banking supervision. They are not, however, allowed to call such contracts "insurance contracts".
If an insurance undertaking seeks to acquire an equity stake in a non-insurance undertaking, a specific notification and approval process applies (see Question 12).
FINMA's approval is required for the transfer of a Swiss insurance portfolio (in whole or in part) from one insurance undertaking to another. Approval is only granted where FINMA considers that the interests of the insured are protected (Article 62, paragraph 1, ISA).
Within 30 days of notification of FINMA's approval, the acquiring insurance undertaking must individually notify the insured persons affected by the portfolio transfer about the transfer and their right of termination. An insured has the right to terminate the insurance contract within three months after that notice (Article 62, paragraph 3, ISA).
The approval requirement does not apply to reinsurance undertakings (Article 35, ISA).
Authorisation or licensing
An insurance undertaking falling within the application of the ISA must obtain an insurance licence from FINMA before commencing any insurance activities (Article 3, paragraph 1, ISA). The insurance undertaking must submit a formal application to FINMA accompanied by a business plan (as defined by ISA) to obtain a licence (Article 4, paragraph 1, ISA).
Licence requirements. The ISA defines the financial and organisational requirements necessary to obtain an insurance licence from FINMA. Certain additional requirements apply to foreign insurance undertakings seeking to become active in the Swiss market. The ISO further substantiates the requirements contained in the ISA.
An insurance undertaking domiciled in Switzerland must meet the following financial requirements:
Minimum capital between CHF3 million and CHF20 million, depending on the classes of insurance that are part of its business plan. FINMA determines the actual capital requirement in each individual case (Article 8, ISA and Articles 6 to 10, ISO).
Sufficient free and unencumbered capital resources in relation to all of its activities (solvency margin). The solvency margin is determined by reference to (Article 9, ISA):
the specific risk exposure;
the classes of insurance operated;
the volume and geographic scope of business;
internationally recognised principles.
The ISO further specifies the solvency requirements and determines that the solvency of an insurance undertaking must be ascertained under the Swiss Solvency Test (SST) (Articles 21 to 53a, ISO). The SST defines the necessary capital resources in relation to the risks to which an insurance undertaking is exposed (target capital) and sets the resulting target capital against the creditable capital (risk-bearing capital). Before the partial revision of the ISO that entered into force on 1 July 2015, solvency was determined under the old Solvency I framework as well as under the SST, the two methods being applied in parallel. With the revision, Solvency I was abolished (unless prescribed by international treaties) and the SST is now the only accepted method for determining and evaluating compliance with solvency requirements. With effect from 1 January 2016, the European Commission recognises the SST as equivalent to European law. This decision had a positive impact for Swiss reinsurers in that they are now able to serve their European Union (EU) clients directly from Switzerland (www.admin.ch/gov/en/start/documentation/media-releases.msg-id-59099.html).
Maintain an organisational fund to cover the costs of establishing and developing the business or an extraordinary business expansion. The organisational fund usually amounts to up to 50% of minimum capital (as defined above) at the start of business operations and should generally settle at an amount around 20% of minimum capital later on. The exact minimum amount is determined by FINMA in each individual case (Article 10, ISA and Article 11, ISO).
Maintain sufficient insurance-related reserves (versicherungstechnische Rückstellungen) for all of its business activities (Article 16, ISA). In addition, the insurance undertaking must secure claims under insurance contracts with tied assets (gebundenes Vermögen) (Article 17, ISA). The required amount of tied assets is equal to the insurance-related reserves plus an appropriate surcharge (Article 18, ISA). For life insurance activities, the surcharge, in principle, amounts to 1% of the insurance-related reserves used as the basis for determining the required amount of the tied assets. For non-life insurance, the surcharge amounts to 4% of the insurance-related reserves and further specific reserves according to the business plan, but at least to CHF100,000 (Article 1, paragraph 1 lit. b, ISO-FINMA). The surcharge does not apply to life insurance if the insurance undertaking does not bear any investment risk (Article 1, paragraph 2, ISO-FINMA). The provisions concerning tied assets are not applicable to reinsurance undertakings (Article 35, ISA).
Maintain sufficient liquidity in order to be able to satisfy all of its payment obligations, even in stress scenarios (Article 98a, ISO).
An insurance undertaking domiciled in Switzerland must meet the following organisational requirements:
It must have the legal form of either:
a company limited by shares;
a co-operative (Article 7, ISA) (see Question 5).
The persons responsible for its direction, supervision, control and management must pass FINMA's fit and proper test (that is, be of good standing and provide assurance of proper business conduct) (Article 14, ISA).
It must be organised in a manner that allows it to recognise, limit and monitor all significant risks (Article 22, ISA). The ISO substantiates this requirement with detailed provisions on risk management and liquidity planning (Articles 96 to 98a, ISO and FINMA- Circular 2008/32 on corporate governance, risk management and the internal control system within the insurance sector).
It must appoint a responsible actuary and provide this person with access to all business records (Article 23, ISA). The responsible actuary must ensure that:
the solvency margin is calculated correctly;
the tied assets meet the requirements;
accurate accounting information is used;
sufficient insurance-related reserves are established (Article 24, ISA).
It must establish an effective internal control system and an internal audit function which is independent from management (Article 27, ISA). In addition, the insurance undertaking must appoint a licensed audit firm to review its conduct of business (Article 28, ISA).
Article 15 of the ISA contains additional requirements for foreign insurance undertakings engaging in insurance business in Switzerland. They must (subject to differing rules in international treaties):
Be authorised to engage in insurance business in the country where they are domiciled.
Establish a presence in Switzerland and appoint a general agent (Generalbevollmächtigter), who must be of good standing and must provide assurance of proper business conduct. The general agent must:
reside in Switzerland;
have authority for, and be entrusted with, the actual management of the office for all of the Swiss business;
possess the knowledge necessary to manage the insurance undertaking (Article 16, paragraph 3, ISO).
Have a minimum capital under Article 8 of the ISA and comply with solvency requirements under Article 9 of the ISA at the registered office in its home jurisdiction, also taking into account its business activities in Switzerland.
Dispose of an organisational fund in Switzerland and the corresponding assets in accordance with Article 10 of the ISA (see above).
Lodge a security deposit with the Swiss National Bank (SNB) that is proportionate to the solvency margin related to the business in Switzerland. FINMA determines the proportion and stipulates the calculation, the place of deposit and the creditable assets. Based on the Agreement between the Swiss Confederation and the European Economic Community on direct insurance other than life insurance, the security deposit requirement does not apply to EU-based insurance undertakings engaged in non-life insurance intending to conduct insurance business in Switzerland.
Business plan. The business plan of an insurance undertaking regulated by FINMA must contain the following information (Article 4, paragraph 2, ISA):
The articles of incorporation.
The management structure and the geographic scope of business.
In the case of an insurance activity outside of Switzerland, the licence from the responsible foreign supervisory body or an equivalent certification.
Information about financial resources and reserves.
The financial statements for the last three financial years, or the initial balance sheet of a newly established insurance undertaking.
Information about the persons who:
directly or indirectly own at least 10% of the capital or voting rights of the insurance undertaking; or
are able to significantly influence its business activities in any other way.
The names of the persons entrusted with the ultimate management, supervision, control and conduct of the business or, for foreign insurance undertakings, the general agent's name.
The name of the responsible actuary.
The name of the audit firm and the persons responsible for the specific audit assignment and, if the insurance undertaking is part of an insurance group or an insurance conglomerate, the organisation of the assignment of the audit firm of the insurance group or the insurance conglomerate.
The contracts or other arrangements through which any of the insurance undertaking's significant functions are outsourced.
The classes of insurance intended to be operated and the nature of the risks to be insured.
Declarations of accession to the National Insurance Office (Nationales Versicherungsbüro) and the National Guarantee Fund (Nationaler Garantiefonds), if applicable.
The reinsurance plan or, in case of an active reinsurance company, the retrocession plan.
The expected costs of establishing the insurance undertaking.
The plans for the balance sheets and income statements for the first three financial years.
Information about the recognition, limitation and monitoring of risks.
The premium scale and the general business terms and conditions which will be used in Switzerland for the insurance of all risks in occupational pension plans and supplementary insurance to the mandatory health insurance, if applicable.
Specific regulatory requirements apply to insurance intermediaries. Insurance intermediaries are defined as persons offering or concluding insurance contracts on behalf of insurance undertakings or other persons (often the insured: Article 40, ISA). FINMA maintains a register of insurance intermediaries (Article 42, ISA), and entry on the register is subject to certain qualifications. Whether an insurance intermediary must register with FINMA depends on whether it qualifies as an independent intermediary (that is, an insurance broker), or as a tied insurance intermediary (that is, an insurance agent). Independent insurance intermediaries (unlike tied insurance intermediaries), are defined as being neither legally, nor economically, nor in any other way dependant on an insurance undertaking (Article 43, paragraph 1, ISA and Article 183, ISO).
As a result, independent insurance intermediaries must register on the FINMA register (Article 43, paragraph 1, ISA). Tied insurance intermediaries can register if they wish to (for example, for marketing reasons), but are not obliged to do so (Article 43, paragraph 2, ISA).
Proof of sufficient professional qualifications (Article 44, paragraph 1a, ISA).
Proof of professional indemnity insurance with an annual policy limit for all damages up to at least CHF2 million (or equivalent financial security; Article 44, paragraph 1b, ISA and Article 186, ISO).
In addition, insurance intermediaries must meet the following personal requirements (Article 185, ISO):
Capacity to act (Handlungsfähigkeit).
No criminal record involving activities incompatible with the business of an insurance intermediary.
No outstanding certificates of unpaid debts (Verlustscheine).
Insurance intermediaries must provide the insured with the following information (on a durable medium, usually a physical information leaflet, allowing the insured to store the information for future reference):
The intermediary's identity and address.
Whether the insurance coverage offered is provided by one or several insurance undertakings, and which insurance undertakings are involved.
Their contractual relationships with the insurance undertakings on whose behalf they act, as well as the names of these insurance undertakings.
The name of the person who can be held liable for negligence, mistakes or incorrect information in connection with their activities as insurance intermediaries.
Information on the processing of personal information, in particular the purpose, scope and recipients of that data, as well as information regarding its storage (Article 45, ISA).
Insurance intermediaries are prohibited from engaging in any intermediary activities in Switzerland for the benefit of insurance undertakings which have not been granted a licence from FINMA for insurance activities in Switzerland even though they fall within the scope of the ISA (Article 41, ISA).
Under the draft bill for the new Financial Services Act (FinSA), insurance intermediaries will qualify as client advisors in the meaning of FinSA. This would change the current regulatory regime for insurance intermediaries as both independent and tied insurance intermediaries would need to be registered in the register of client advisors and have to comply with, for example, the code of conduct requirements outlined in the FinSA (see Question 1).
Other providers of insurance/reinsurance-related activities
Article 15 of the ISA contains additional requirements for foreign insurance undertakings engaging in insurance business in Switzerland, for example the appointment of a general agent (Generalbevollmächtigter). A general agent does not have to be licensed or registered, but must meet the following requirements:
Be of good standing and provide assurance of proper business conduct (Article 14, paragraph 1 lit. b, ISA).
Reside in Switzerland (Article 16, paragraph 1, ISO).
Have authority for, and be entrusted with, the actual management of the office for all of the Swiss business (Article 16, paragraph 1, ISO).
Possess the knowledge necessary to manage the insurance undertaking (Article 16, paragraph 2, ISO).
Before the appointment of the general agent, a curriculum vitae and a power of attorney containing the rights and obligations of the general agent outlined in Article 17 of the ISO must to be filed with FINMA.
Consultants, claims adjustors and third party administrators are not subject to specific regulatory requirements to the extent that they do not qualify as an insurance/reinsurance undertaking or an insurance intermediary.
As part of its governance assessment tool, FINMA started at the end of 2015 to periodically conduct corporate governance online surveys with supervised insurance companies. The surveys include questions about company structure, governing bodies and control functions.
Insurance undertakings only engaging in reinsurance activities in Switzerland that are domiciled outside of Switzerland are exempt from supervision under the ISA, and from the licensing requirement in Switzerland (see Question 6).
Insurance undertakings domiciled abroad which do not have a subsidiary in Switzerland are not subject to supervision if they only engage in Switzerland in the following classes of insurance (Article 1, paragraph 2, ISO):
Coverage of insurance risks in connection with maritime transport, air transport and cross-border transportation.
Coverage for risks located abroad.
Coverage for war risks.
Insurance undertakings that are subject to a special supervision under Swiss Federal law are also exempt from supervision under the ISA (for example, certain registered social security institutions) (Article 2, paragraph 2b, ISA), as are certain insurance co-operatives with a very limited scope of business (Article 2, paragraph 2d, ISA). FINMA can also apply a de minimis exemption in certain circumstances (Article 2, paragraph 3, ISA), though this is rarely used in practice.
The exemptions (see above, Insurance/reinsurance providers) apply in a similar way to insurance intermediaries. Insurance intermediaries representing only the interests of a single insured person or entity (and any companies controlled by that person or entity) are also exempt from supervision (Article 2, paragraph 2c, ISA).
Other providers of insurance/reinsurance-related activities
The exemptions (see above, Insurance/reinsurance providers) apply in a similar way to general agents (Generalbevollmächtigte).
Consultants, claims adjustors and third party administrators are not subject to specific regulatory requirements so long as they do not pursue an insurance/reinsurance business or act as an insurance intermediary and therefore no specific exemptions or exclusions from authorisation or licensing apply.
Restrictions on ownership or control
The business plan submitted to FINMA, with the application for a licence must include information on the persons who, directly or indirectly, either:
Own at least 10% of the capital or voting rights of the insurance undertaking.
Are able to significantly influence its business activities in any other way (see Question 9).
FINMA considers this information when assessing licence applications by applying a "fit and proper" test.
Insurance undertakings domiciled in Switzerland intending to acquire a participation which exceeds certain thresholds in another business must notify FINMA. Intended acquisitions or reductions of participations in insurance undertakings domiciled in Switzerland which reach or cross over certain thresholds must be reported to FINMA by the respective buyer(s) and seller(s) (see Question 12).
There are no specific restrictions on ownership or control.
Other providers of insurance/reinsurance-related activities
There are no specific restrictions on ownership or control for general managing agents, consultants, claims adjustors and third party administrators as they do not qualify as an insurance/reinsurance undertaking.
The ISA contains certain notification requirements concerning equity participations in or by insurance undertakings (Article 21, paragraphs 1 to 3, ISA):
An insurance undertaking domiciled in Switzerland intending to acquire a participation in another business must notify FINMA if that participation equals or exceeds the thresholds of 10%, 20%, 33% or 50% of the capital or voting rights of the other business.
A person or entity intending (directly or indirectly) to acquire or reduce a participation in an insurance undertaking domiciled in Switzerland must notify FINMA if the participation equals, exceeds or falls below the thresholds of 10%, 20%, 33% or 50% of the capital or voting rights of the insurance undertaking. A notification must also be filed in the event that the participation in the insurance undertaking no longer qualifies it as a subsidiary.
According to authors in Swiss legal literature, FINMA can be notified of a purchase of participation after signing the purchase agreement but before the closing of the transaction. However, in recent cases, FINMA took the view that the notification must take place ahead of the signing of the purchase agreement, meaning at the point in time where the actual intent to acquire or reduce a participation is formed.
Following notification, FINMA can prohibit acquisitions or changes to participations, or subject them to conditions, if the nature and scope of the participation could endanger the insurance undertaking or the interests of the insured (Article 21, paragraph 4, ISA).
Since FINMA is not subject to any deadline under the ISA concerning when it can issue conditions or prohibit participations, it can be useful to seek FINMA's consent in advance to eliminate uncertainties.
Further disclosure and takeover obligations exist under the Federal Act on Stock Exchanges and Securities Trading (SESTA), where the securities of an insurance or reinsurance undertaking are listed in whole or in part on a Swiss stock exchange. In addition, further duties and restrictions under the Federal Act on Cartels and other Restraints of Competition (Cartel Act), may apply, depending on the circumstances.
There are no specific approval or notification requirements.
Other providers of insurance/reinsurance-related activities
There are no specific approval or notification requirements for owners or controllers of general managing agents, consultants, claims adjustors and third party administrators as long as these providers of insurance/reinsurance-related activities do not themselves qualify as an insurance/reinsurance undertaking.
Ongoing requirements for the authorised or licensed entity
Licensed insurance undertakings must comply with all licence requirements (see Question 9) but not limited to adequate organisation and solvency on an ongoing basis. Amendments to the following elements of the regulatory business plan of a licensed insurance undertaking must be reported to FINMA for prior approval (Article 5, paragraph 1, ISA):
The articles of incorporation.
The name of the responsible actuary.
The name of the audit firm and the persons responsible for the audit assignment.
The intended classes of insurance and the nature of the risks to be insured.
The premium scale and the general business terms and conditions which will be used in Switzerland for the insurance of all risks in occupational pension plans and supplementary insurance to the mandatory health insurance.
Intended capital increases or reductions require an amendment of the articles of incorporation and must therefore be reported to FINMA for prior approval.
Also subject to FINMA's prior approval are any changes to the business plan resulting from a merger, spin-off or reorganisation of an insurance undertaking.
All other amendments to the key elements of the business plan under Article 4, paragraph 2, ISA must be reported to FINMA and are considered approved if FINMA does not initiate a review of the submission within four weeks after receiving the notification (Article 5, paragraph 2, ISA).
Registered insurance intermediaries must report any changes to the information in the register of intermediaries (for example, change of name or address, represented insurance undertakings or termination of intermediation activities) to FINMA within 14 days of that change (Article 189, ISO).
Other providers of insurance/reinsurance-related activities
Before the appointment of a new general agent, a curriculum vitae and a power of attorney containing the rights and obligations of the general agent, outlined in Article 17 of the ISO, must be filed with FINMA.
Consultants, claims adjustors and third party administrators are not required to be registered to the extent that they do not qualify as an insurance/reinsurance undertaking or an insurance intermediary and therefore they are not subject to ongoing reporting requirements (see Question 9).
Penalties for non-compliance with legal and regulatory requirements
FINMA can revoke the licence of a supervised insurance undertaking if it no longer fulfils the licence requirements or if it seriously violates regulatory provisions (Article 37, paragraph 1, FINMASA). Furthermore, FINMA can initiate regulatory procedures and apply protective measures or sanctions under Article 29 et seq of the FINMASA. The protective measures or sanctions can include:
A reprimand in a declaratory decree (Article 32, FINMASA).
Specific orders to restore compliance with and preclude further breaches of the law or regulation (Article 31, FINMASA). Such orders may include the order to develop and implement a risk management and risk control system suitable to appropriately identify, limit and monitor the legal and reputational risks emanating from certain business activities.
Publication of the supervisory decree (Article 34, FINMASA).
Disgorgement of illegally generated profits and avoided costs (Article 35, FINMASA). FINMA, in principle, does not have the competence to impose monetary fines. However, the possibility of the disgorgement of illegally generated profits and avoided costs under Article 35 of the FINMASA is a very effective measure.
Specific orders to limit or terminate certain business activities, up to the revocation of the license in severe cases (Article 37, FINMASA).
An insurance licence can also be fully or partially revoked if an insurance undertaking has ceased its business operations in the corresponding insurance classes for more than six months (Article 61, ISA). In that case, the insured are entitled to withdraw from the insurance contracts with that insurance undertaking (Article 36, ICA).
The ISA and the FINMASA also provide for the following criminal sanctions that are investigated by prosecutors and sentenced by criminal courts:
Anyone who wilfully carries out an activity requiring a licence, recognition, or registration under Swiss financial market laws without first obtaining a licence, recognition or registration is liable to a custodial sentence of up to three years or to a monetary penalty (Article 44, paragraph 1, FINMASA). Persons acting negligently are liable to a fine of up to CHF250,000 (Article 44, paragraph 2, FINMASA).
Imprisonment of up to three years or a monetary penalty will be imposed on any person that intentionally (Article 87, ISA):
violates the obligation to submit amendments to the business plan for FINMA's prior approval under Article 5, paragraph 1 of the ISA or who fails to notify FINMA of changes to the business plan under Article 5, paragraph 2 of the ISA;
removes or encumbers tied assets with the consequence that the required amount is no longer covered;
commits other acts which reduce the value of the tied assets.
Persons acting negligently in these instances will be punished with a fine of up to CHF250,000 (Article 87, paragraph 2, ISA).
A fine of up to CHF500,000 can be imposed on any person that intentionally (Article 86, ISA):
violates a notification duty under Article 21 of the ISA (see Question 12);
fails to deliver the annual financial report and the regulatory report within the specified time period;
fails to establish the insurance-related reserves required by supervisory law or approved in a specific case.
Persons acting negligently in these instances are punished with a fine of up to CHF150,000 (Article 86, paragraph 2, ISA).
Additional sanctions can apply (for example, with respect to violations of the Swiss Criminal Code and the Swiss Anti-Money Laundering Act).
Insurance intermediaries that intentionally conclude or broker insurance contracts on behalf of an insurance undertaking that is not licensed to conduct insurance activities in Switzerland are liable to imprisonment of up to three years or a monetary penalty. In cases of negligence, a fine of up to CHF250,000 can be imposed (Article 87, paragraphs 1a and 2, ISA).
Insurance intermediaries violating a disclosure obligation towards the insured under Article 45 of the ISA (see Question 9), are liable to a fine of:
Up to CHF500,000 in cases of wrongful intent.
Up to CHF150,000 in cases of negligence (Article 86, paragraphs 1e and 2, ISA).
Finally, the sanctioning provisions of FINMASA and other Swiss laws as outlined above can also apply to insurance intermediaries (see above, Insurance/reinsurance providers).
Other providers of insurance/reinsurance-related activities
FINMA can adopt protective measures to safeguard the interests of the insured where an insurance undertaking or an insurance intermediary does not comply with:
The provisions of the ISA.
An implementing ordinance or an order of FINMA.
Or if it appears that the interests of the insured are otherwise endangered (Article 51, paragraph 1, ISA).
In this context, FINMA can demand the dismissal of the general agent and prohibit it from engaging in any further insurance activities for a maximum of five years (Article 51, paragraph 2, ISA).
In addition other providers of insurance/reinsurance-related activities such as general agents, consultants, claims adjustors and third party administrators are subject to the general criminal sanctions under, for example, the Swiss Criminal Code.
Restrictions on persons to whom services can be marketed or sold
There are no specific restrictions on the persons to whom insurance or reinsurance contracts can be marketed or sold. However, life insurance is null and void if the person whose life is covered in that insurance does not consent to the insurance, in writing, before the insurance contract is concluded (Article 74, paragraph 1, ICA).
With regard to potential customers who are not domiciled or resident in Switzerland, applicable international treaties as well as local laws and regulation must be considered. Switzerland has entered into a treaty with the Principality of Liechtenstein enabling insurers domiciled in either country to provide services on the territory of the other country under a uniform licence.
Reinsurance monitoring and disclosure requirements
Insurance and reinsurance policies
Content requirements and commonly found clauses
Form and content requirements
The validity of the insurance contract is not subject to compliance with any particular form, though the application for an insurance policy and acceptance by the insurer are customarily produced in writing. However, the insurer must:
Issue a policy to the insured stating the rights and duties of the parties (Article 11, ICA).
Inform the insured about the identity of the insurer and the main content of the insurance contract prior to the conclusion of the contract (subject to the insured's right to terminate if that duty to inform is not complied with by the insurer (Article 3a, ICA).
Article 3 of the ICA lists the key elements of the contract that must be explained to the insured:
The insured risks.
The scope of insurance coverage.
The premiums due and any other duty of the policyholder.
The duration and methods of terminating the contract.
The methods, principles and bases for calculating and distributing the surplus profits.
The surrender and transformation values.
The handling of personal data, including purpose and type of data collections as well as data recipients and data storage.
On the insured's request and against reimbursement, the insurer must provide the insured with a copy or transcript of the statements made by the insured in the application for the insurance contract or delivered in any other form, which were determining for the conclusion of the insurance contract (Article 11, paragraph 2, ICA).
Commonly found clauses
See above, Form and content requirements. Most insurers use their own general insurance terms and conditions as a basis for their insurance contracts. For certain types of insurance, standard terms have been published by the Swiss Insurance Association, which may give some general guidance on what terms and conditions one can expect in such types of policies (see Question 22).
Both facultative and treaty insurance are common in the Swiss market.
Commonly found clauses
Reinsurance contracts often contain "access to records" or "right to audit" clauses as well as "follow the fortunes" or "follow the settlements" clauses. Various forms of claims control clauses are often found in facultative reinsurance.
Certain provisions of the ICA cannot be contractually modified, including (Article 97, ICA):
Rules and restrictions regarding the premium payment obligation upon premature cancellation of the insurance contract.
Place of performance.
The due date of insurance claims.
Tacit renewal of insurance contracts.
Rules relating to overinsurance or double insurance.
Rules concerning replacement value.
Rules concerning the assessment of damage.
Assignment and pledge of personal insurance claims.
Rules relating to insurance policies on the life of another person.
Other provisions contained in the ICA cannot be modified to the disadvantage of the policyholder or the insured (Article 98, ICA):
Rules and restrictions regarding the application for insurance.
The insurer's duty of information to the insured and the insured's right to cancel the contract of insurance.
Consequences of default in the payment of premiums.
Place of payment.
Aggravation of risks with or without the policyholder's involvement.
The insurer's liability for his intermediaries.
Rules relating to justifying the insurance claim.
Rules concerning partial damage.
Rules concerning the statute of limitations.
A statutory pledge of the injured third party in the area of indemnity insurance.
The insurer's right of recourse.
The policyholder's right of withdrawal in the area of life insurance.
Rules relating to the conversion and surrender of life insurances.
On a more general level, Article 2 of the Swiss Civil Code states that every person must act in good faith in the exercise of its rights and in the performance of its obligations.
The use of general insurance terms and conditions (GTC) to govern the relationship between insurances and consumers is subject to regulation by Article 8 of the Swiss Act against Unfair Competition (AUC). Under this provision, the use of GTC that, to the detriment of consumers and contrary to the requirement of good faith, provide for a significant and unjustified imbalance between contractual rights and contractual obligations is prohibited. However, this provision only protects consumers and therefore is not applicable towards persons using insurance services that are related to their commercial or professional activities.
There are no specific supplemental customer protections which are generally included in insurance contracts by insurers in Switzerland. Individual contracts may contain certain customer-friendly terms, such as a right of withdrawal from the contract within a defined time span.
Standard policies or terms
The Swiss Insurance Association publishes standard terms (in German and French), for different types of indemnity insurance contracts (third-party liability insurance, property insurance, technical insurance and transport insurance), on its website (www.svv.ch/de/politik-und-recht/musterbedingungen/allgemeine-versicherungsbedingungen).
Insurance and reinsurance policy claims
Establishing an insurance claim
The triggering events are usually defined in the insurance contract. Upon the occurrence of the insured event, the insured must notify the insurer as soon as he knows about the event and his insurance claims (Article 38, paragraph 1, ICA). If he violates that duty by fault, the insurer is entitled to reduce the indemnification by the amount by which the indemnification would have been reduced in case of a notice on time (Article 38, paragraph 2, ICA).
Third party insurance claims
If such a right has not been included in the insurance contract, it only exists where it is explicitly provided for in the law. An aggrieved third party usually has a direct claim against the insurer in the areas of mandatory liability insurance, such as:
Motor liability insurance (Article 65, paragraph 1, Federal Road Traffic Act).
Mandatory liability insurance for, for example:
fuel and gas pipes;
In these cases, not only is there a direct claim provided, but this direct claim is also combined with the exclusion of the insurer's right to raise objections against the third party's direct claim on the basis of the ICA or the insurance contract (the insurer will have to take recourse against the policyholder or the insured).
If there is no explicit rule providing for a third party claim, the third party still has a lien on the claim of the insured person against his liability insurer. The insurer has the right (but not the obligation) to compensate the affected third party directly, without the consent of the insured (Article 60, paragraph 1, ICA).
A third party can also benefit from insurance cover where the insurance contract itself contains a provision to that effect.
Claims based on an insurance contract are, in principle, subject to a statute of limitations of two years from the date of the triggering event which raises the obligation to provide indemnification. This statute of limitations cannot be contractually shortened (Article 46, ICA).
As reinsurance contracts are not subject to the ICA, the provisions of the Code of Obligations (CO) apply. As a result, the statute of limitations for claims based on reinsurance contracts is ten years from the day on which the claim becomes due (Article 127, CO). This limitation period cannot be contractually altered (Article 129, CO).
The time limits above do not extinguish the claim, but, when invoked by the defendant, render the claim unenforceable.
If the insured is in breach of one of his obligations under the insurance contract or under the ICA, the insurer is entitled to reduce the indemnification (for example, if the insured causes the insured event intentionally or in a grossly negligent way (Article 14, ICA).
In certain circumstances, the insurer can terminate the contract by written notice (for example, if the insured omits to notify, or incorrectly notifies, the insurer of a significant risk factor (Article 6, ICA).
The insured can terminate the insurance contract by written notice if the insurer does not perform its duty to inform the insured of the identity of the insurer and the material content of the insurance contract (see Question 18), prior to the conclusion of the contract (Article 3a, ICA). This termination right expires four weeks after the insured has become aware of the breach of duty by the insurer, and in any case one year after the breach of duty (Article 3a, paragraph 2, ICA).
Punitive damage claims
Punitive damages are not available under Swiss law. Further, a Swiss court cannot award punitive damages even if the applicable foreign substantive law provides for those damages (Article 135, paragraph 2, Swiss Private International Law Act (SPILA)). As a result, the insurability of punitive damages has found very little attention in Swiss legal literature.
Insolvency of insurance and reinsurance providers
In the case of the insolvency of insurance and reinsurance undertakings, the provisions of the Swiss Federal Statute on Debt Enforcement and Bankruptcy (DEBA) are applicable to the extent that the more specific provisions of the ISA (Article 51 et seq, ISA), do not provide otherwise (Article 54, paragraph 2, ISA). As from 1 January 2013, the provisions of the ISA are supplemented by the IBO-FINMA.
FINMA can adopt protective measures to safeguard the interests of the insured where an insurance undertaking or an insurance intermediary does not comply with the provisions of the ISA, an implementing ordinance or an order of FINMA, or if it appears that the interests of the insured are otherwise endangered (Article 51, paragraph 1, ISA).
In particular, FINMA can (Article 51, paragraph 2, ISA):
Prohibit the unrestricted disposition of the insurance undertaking's assets.
Order the deposit or blocking of assets.
Assign, in whole or in part, the responsibilities and authorities of the officers and directors of an insurance undertaking to a third person.
Assign the portfolio of insurance policies and the related tied assets to another insurance undertaking (with the consent of that insurance undertaking).
Order the liquidation of the tied assets.
Demand the dismissal of the persons entrusted with the ultimate management, supervision, control or conduct of the business, or the general agent, as well as the responsible actuary, and prohibit them from engaging in any further insurance activities for a maximum of five years.
Remove an insurance intermediary from the register.
Assign assets to the tied assets that are required by Article 18 of the ISA.
Order the extension of the terms of payment and the adjournment of due dates in cases of financial distress.
If FINMA revokes an insurance undertaking's licence, it becomes subject to liquidation (Article 52, ISA). FINMA appoints and oversees the liquidator.
Where there is good cause to suspect that an insurance undertaking is overindebted or has liquidity problems and where recapitalisation is not possible, FINMA will revoke the licence and initiate bankruptcy proceedings (which are then published) (Article 53, paragraph 1, ISA).
Insurance claims that can be recognised from the insurance undertaking's records are deemed to have been submitted in the bankruptcy proceedings. The claims where security was provided in the form of tied assets will be the first to be covered by the proceeds of the tied assets. Any remaining proceeds become part of the bankruptcy estate (Article 54a, ISA and Article 26, IBO-FINMA). In some cases, transferring insurance portfolios under Article 62 of the ISA before a liquidation can be a way of protecting the interests of the insured.
Additional provisions apply to the insolvency of life insurance undertakings (Article 55 et seq, ISA).
A creditor can set off mutual debts (Article 213, paragraph 1, Federal Statute on Debt Enforcement and Bankruptcy) (DEBA). However, in certain circumstances a set-off is not permitted (for example, where a creditor of the bankrupt did not become debtor of the bankrupt or the bankrupt estate until after the opening of bankruptcy proceedings).
From an insurance law perspective, it must be noted that an insurer cannot set-off its liabilities against claims which are counted towards the tied assets (Article 84, paragraph 2, ISO), since the tied assets serve as security for the claims of the insured under the insurance contracts (there are specific rules concerning the use of proceeds from tied assets in insurance bankruptcy proceedings) (Article 54a, ISA). Consequently, the insurer must ensure that its counterparties cannot declare set-off against liabilities if the insurer's claim against the counterparties forms part of the tied assets (for example, by contractually excluding set-off in these circumstances).
Taxation of insurance and reinsurance providers
Under the Federal Stamp Tax Act, stamp taxes are levied on the payment of insurance premiums. However, several types of insurance are exempt from this tax (for example, stamp taxes are not levied on reinsurance (Article 22, Federal Stamp Tax Act)).
Insurance and reinsurance turnovers are exempt from Swiss VAT without the possibility to reclaim input VAT (input VAT refers to the VAT on purchases of goods and services used to carry on the business, which can usually be reclaimed if taxable turnovers are made).
Generally, the ordinary Swiss tax regime applies to insurance and reinsurance providers. Consequently, insurance undertakings are subject to:
Corporate income tax, which is assessed based on the income according to the statutory profit and loss statement in accordance with the provisions of the CO.
Corporate capital tax, which is assessed based on the equity according to the statutory balance sheet in accordance with the provisions of the CO and any deemed equity.
Foreign insurance and reinsurance undertakings with activities in Switzerland can apply for preferential tax regimes. In Switzerland, losses can be carried forward seven years for tax purposes. The applicable tax rates depend on the canton and municipality where the insurance or reinsurance undertaking is domiciled.
Insurance and reinsurance dispute resolution
Private law disputes between insurance undertakings or between insurance undertakings and the insured are, in principle, subject to the jurisdiction of the civil courts (Article 85, paragraph 1, ISA). The regular courts can hear disputes arising out of insurance contracts. However, some cantons have established a specialised commercial court, which is the appropriate venue for commercial disputes and disputes relating to the law of commercial companies and co-operatives (Article 6, Swiss Code of Civil Procedure (CCP)). In general, the commercial court decides on disputes where both parties are registered in the Swiss Commercial Registry or in an equivalent foreign registry. However, under certain conditions, the commercial court can be chosen by a non-registered claimant (Article 6, CCP).
Furthermore, the parties can agree on an arbitration clause (see Question 34).
The draft bill for the new FinSA proposes, among others, several changes of the possibilities for clients to enforce their rights against financial service providers. This is done by establishing a permanent arbitral tribunal or a litigation fund sponsored by the financial service providers that are accessible only to private clients, as well as by implementing procedural instruments for collective redress (for example, representative actions by interest groups and collective settlement proceedings). As these proposals have been strongly criticised by the industry during the consultation proceeding, the Federal Council proposes in the dispatch on the FinSA and the Financial Institutions Act (FinIA) of 4 November 2015, a new and moderate cost system for compensation of parties in litigation by introducing a new Article 114a in the CCP. Under the proposed rule, a financial service provider under certain conditions assumes his legal costs regardless of the outcome of the proceeding. Further, the court can, for example, deviate from the general distribution principles of the legal costs. As the dispatch has not been discussed in the Swiss parliament yet, it remains to be seen if and how this proposal will be implemented.
Arbitration clauses in insurance and reinsurance agreements are, in principle, enforceable, as any monetary claims can be submitted to arbitration proceedings, both in disputes with or without an international element (Article 177, paragraph 1, SPILA and Article 354, CCP). Arbitration clauses must be put in writing or agreed by a means of communication which permits them to be evidenced by text (Article 178, paragraph 1, SPILA and Article 358, CCP).
Choice of forum
In disputes without an international element, choice of forum clauses are, in principle, admissible under the CCP rules. However, where an insurance contract qualifies as a consumer contract under Article 32 of the CCP, a choice of forum can only be made in an agreement which is entered into after the dispute has arisen (Article 35, paragraph 1a, CCP). An insurance contract may qualify as a consumer contract if the insurance relates to services or goods for usual consumption (for example, an insurance for household contents or private liability insurance).
If a dispute with an international element falls within the scope of the Lugano Convention, the relevant jurisdiction in insurance matters is determined by the provisions set out in Articles 8 to 14 of the Lugano Convention. A choice of forum can only be made in an agreement which is (Article 13, Lugano Convention):
Entered into after the dispute has arisen.
Structured to allow the policyholder, the insured or a beneficiary to bring proceedings in courts other than those indicated in Articles 8 to 14 of the Lugano Convention.
Concluded between a policyholder and an insurer, both of whom, at the time the contract is concluded, are domiciled or habitually resident in the same contracting state, and which has the effect of conferring jurisdiction on the courts of that state even if the harmful event were to occur abroad (provided that such an agreement is not contrary to the law of that state).
Concluded with a policyholder who is not domiciled in a contracting state, except insofar as the insurance is compulsory or relates to immovable property in a contracting state.
Related to a contract of insurance insofar as it covers one or more of the risks set out in Article 14 of the Lugano Convention (for example, any loss of or damage to seagoing ships, installations situated offshore or on the high seas or aircraft arising from perils which relate to their use for commercial purposes).
These provisions do not apply to reinsurance matters.
If a dispute with an international element falls outside of the scope of the Lugano Convention, the provisions of the SPILA, apply. In principle, the relevant jurisdiction is determined based on the rules regarding contracts (Articles 112 and 113, SPILA). Under these rules, choice of forum clauses are admissible in principle. However, if the insurance contract qualifies as a consumer contract under Article 120 of the SPILA, the consumer cannot waive jurisdiction at its domicile or usual place of residence in advance (Article 114, paragraph 2, SPILA).
Choice of applicable law
Swiss courts apply the SPILA with respect to the choice of applicable law in an international dispute. In principle, choice of applicable law clauses are permissible (Article 116, SPILA). The choice of law must be explicit or clearly evident from the contract or the circumstances. Furthermore, the choice of law can be made or modified at any time. However, where an insurance contract qualifies as a consumer contract, a choice of applicable law clause is not admissible (Article 120, paragraph 2, SPILA).
Further to the provisions of the SPILA, Articles 101b and 101c of the ICA state specific conflict of laws rules with regard to direct insurance. However, the scope of application of these rules is very limited, as they only apply to insurance contracts covering risks situated in a state which has entered into an international treaty with Switzerland regarding the recognition of regulatory requirements and measures ensuring that equivalent rules apply in that contracting state when compared to Switzerland (Article 101a, ICA). Such an international treaty currently exists between Switzerland and the Principality of Liechtenstein.
In a response to market trends and legal developments, the following reforms are planned:
The Swiss parliament rejected the proposed total revision of the ICA in March 2013, instructing the Federal Council to draft a new proposal for a partial revision of the ICA. A new draft of a partially revised ICA is scheduled to be discussed in the Swiss parliament in 2016. The partial revision is expected to address the following topics, amongst others:
introduction of an appropriate right of revocation;
rules regarding interim cover;
admission of retroactive cover;
elimination of deemed approval rules adversely affecting consumers;
extension of the statute of limitations; and
introduction of an ordinary right of termination.
On 1 July 2015, a revised ISO entered into force. The focus of the amendment to the ISO was on solvency, qualitative risk management and disclosure. Under the old regime, two methods for determining and evaluating solvency requirements were applied in parallel: Solvency I and the SST. Under the new regime, only the SST remains as the sole accepted method for the determination of the solvency requirements. The background to this revision was that the SST is compatible with the European Solvency II framework which came into effect on 1 January 2016. Additionally, the revised ISO includes adjustments to the disclosure of risk and financial information of an insurance undertaking in order to comply with the most recent standards established by the International Association of Insurance Supervisors (IAIS), as well as the European Solvency II framework. To implement these adjustments on a more concrete level, a partial revision of the ISO-FINMA was issued, which entered into force on 15 December 2015. Furthermore, a number of new or revised FINMA circulars tightening the regulations on insurance entered into force on 1 January 2016. For example the following:
the new FINMA-Circular 2016/3 "Own Risk and Solvency Assessment" (ORSA) sets out the principles of forward-looking self-assessment of risk management and solvency for insurers;
the new FINMA-Circular 2016/2 "Public Disclosure Insurers" regulates standardised disclosure to provide more comparable and transparent information to protect policyholders.
Furthermore, FINMA consolidated four existing circulars on group supervision into the new FINMA-Circular 2016/4 "Insurance Groups and Conglomerates" and combined FINMA-Circular 2008/40 "Life Insurance" and FINMA-Circular 2008/14 "Tariffing Risk Insurance Professional Pension" into the new FINMA-Circular 2016/6 "Life Insurance". The FINMA-Circular 2013/02 "Temporary Adjustments to the Swiss Solvency Test (SST)" expired on 31 December 2015. However, some of the reliefs granted therein were moved into a revised version of FINMA-Circular 2008/44 "Swiss Solvency Test (SST)".
On 1 January 2016, a new Social Health Insurance Supervisory Act (SHISA) entered into force. The SHISA replaces the former provisions on supervision in the HIA but continues to rely on a dual system of supervision in the health insurance market:
health insurance companies are supervised by the Federal Office of Public Health; and
private insurance companies are (for offering supplemental health insurance) supervised by FINMA.
The SHISA contains additional solvency requirements for health insurance companies. New competences and instruments will strengthen the supervisory bodies.
In September 2014, the Swiss citizens rejected a popular initiative aiming to exclude mandatory health insurance from the private insurance sector by implementing a public health insurance organisation.
The new Financial Market Infrastructure Act (FMIA) entered into force on 1 January 2016 and introduces certain new rules in respect of OTC derivative transactions, including:
clearing duty of important transactions with a central counterparty;
reporting duty to a central transactions register;
risk mitigation duties; and
the option to introduce a duty to trade on an accredited platform.
Insurance undertakings are qualified as "financial counterparties" under FMIA and are on this basis affected by the new rules. Relief regarding some of the new duties may be available for small financial counterparties subject to certain thresholds.
The draft bill for the new FinSA is expected to be debated in the Swiss parliament in the course of 2016 and is not expected to enter into force before 2018. The insurance industry would be directly affected by the FinSA because it will apply to all securities providers and issuers of financial instruments. Insurance products with an investment component (for example, redeemable life insurance policies) qualify as financial instruments in the meaning of the draft FinSA. Amongst others, insurance undertakings would be required to produce a key information document (Basisinformationsblatt) if financial instruments are offered to retail clients (for example, redeemable life insurance policies). Insurance intermediaries would also qualify as client advisors in the meaning of the draft FinSA. This would change the current regulatory regime for insurance intermediaries as not only independent but also tied insurance intermediaries would be required to register in the register of client advisors and would have to comply with the code of conduct requirements outlined in the FinSA.
Additionally, a draft bill of the new Financial Institutions Act (FinIA) will be discussed in the Swiss parliament. This act would reform and merge the current separate federal acts governing financial institutions such as banks or securities dealers and would contain the license requirements of financial institutions. However, as the Federal Act on the Supervision of Insurance Companies (ISA) will not be incorporated into the envisaged FinIA, this reform will in principle not affect insurance companies.
Currently, the Swiss legislature is in the process of amending large parts of the CO. In this context, it has been discussed to facilitate the enforcement of claims in connection with long term health damages or death (for example, asbestos) by extending the absolute statute of limitations from 10 to 30 years. This extension of the absolute statute of limitations may also affect insurance undertakings.
In a recent decision of the cantonal court of Basel-Stadt, the court decided that broker commissions paid by an insurance undertaking to an insurance intermediary must be passed on by the insurance intermediary to the client unless it has obtained an informed waiver by the client. Such waiver requires, in particular, transparent disclosure on the calculation parameters of the expected broker commissions. The court based its decision on the case law of the Swiss Federal Supreme Court regarding retrocessions received by asset managers and banks in the context of asset management and asset advisory services. This decision has not yet become legally effective and potential future developments in this regard might need to be considered.
Main insurance/reinsurance trade organisations
Swiss Insurance Association (Schweizerischer Versicherungsverband) (SVV)
Main activities. The SVV, a private Swiss association, is an umbrella organisation representing the private insurance industry. Members are small and large, national and international, primary insurers and reinsurers.
Swiss Association of Insurance Inspectors and Agents (Schweizerischer Verband der Versicherungs-Inspektoren und Agenten) (SVVIA)
Main activities. SVVIA is a private association representing persons working in the insurance field service.
Swiss Association of certified Insurance Specialists (Schweizerische Vereinigung der diplomierten Versicherungsfachleute) (ASDA)
Main activities. ASDA is a private association representing insurance specialists at all levels of private, health and social insurance.
Swiss Insurance Brokers Association (Verband Schweizerischer Versicherungsbroker) (SIBA)
Main activities. SIBA is a private association representing insurance brokers in Switzerland.
Swiss Association of Insurance General Agents (Schweizerischer Verband der Versicherungs-Generalagenten) (SVVG)
Main activities. SVVG is a private association representing general agents of insurance undertakings in Switzerland.
Ombudsman of Private Insurance and of SUVA (Ombudsman der Privatversicherung und der SUVA)
Main activities. The Swiss Ombudsman of Insurance is a foundation established by the Swiss Insurance Association in 1972. Its main functions are to mediate complaints, disputes and claims in connection with or arising out of private insurance contracts and to provide guidance and advice to insurance customers. It aims to facilitate the settlement of claims and the resolution of disputes.
Swiss federal legislation
Description. Homepage of the Swiss Federation containing the systematic collection of federal acts and ordinances as well as international treaties. The homepage is available in German, French and Italian and a reduced version in Romansh. Selected acts and ordinances are available in English.
Peter Ch. Hsu, Partner
Bär & Karrer Ltd
Professional qualifications. Switzerland (Zurich bar), 2002; US (New York Bar), 2005 (not practising)
Areas of practice. Insurance; banking; financing; capital markets; M&A transactions.
- A partner at Bär & Karrer, Peter Hsu is a member of the Banking, Insurance & Financing practice group and head of the sub-group Banking & Insurance. He concentrates on advising Swiss and foreign insurance and reinsurance companies, groups, conglomerates and insurance intermediaries as well as banks, securities dealers and other financial institutions with regards to regulatory and contract law matters.
- Regularly advising clients on M&A transactions, including private and public transactions (as well as mergers, spin-offs and portfolio transfers) in the financial sector as well as in other industry sectors.
- Advising insurance undertakings on capital and solvency requirements as well as on investment restrictions for tied assets.
- Advising Swiss insurance intermediaries.
- Filing licence applications and registrations with FINMA and obtaining FINMA rulings as well as drafting and negotiation of contractual documentation.
- The Legal 500 2014 refers to Peter Hsu as "a key individual within the banking and insurance sector". He is ranked as a leading individual in the practice area Insurance & Reinsurance (Who's Who Legal). Peter Hsu is "the 'go-to guy' for clients in need of insurance and reinsurance regulatory advice" (Who's Who Legal 2013) and a "key player in the Swiss insurance and reinsurance regulatory field" (2014).
Publications. Peter Hsu has published books and articles on topics in banking, insurance and capital markets and is regularly invited to speak on these topics.
Daniel Flühmann, Senior Associate
Bär & Karrer Ltd
Professional qualifications. Switzerland (Zurich Bar), 2011
Areas of practice. Insurance; banking; financing; M&A transactions.
- A senior associate with Bär & Karrer, Daniel Flühmann is a member of the Banking, Insurance & Financing practice group. His practice focuses on banking, insurance and financial market laws as well as on general corporate and commercial matters and related areas.
- Advising Swiss and foreign insurance and reinsurance companies, groups, conglomerates and insurance intermediaries in legal and regulatory matters and in the context of enforcement proceedings.
- Advising purchasers and sellers in M&A transactions, in particular in the financial and insurance sector.
- Filing licence applications and registrations with FINMA and obtaining FINMA rulings.
- Drafting and negotiation of contractual documentation.