Dr Markus Dörig

Markus Dörig

Lawyer biography

Born 1960, Dr.iur., Attorney-at-law, Partner

Education and Experience

  • Zurich and Geneva Universities (lic.iur. 1984)
  • Clerk at district court (1984-1985)
  • Trainee in Zurich law firm (1985-1987)
  • Dr.iur., admitted to bar (1987)
  • Foreign Associate in leading Chicago law firm (1988)
  • Attorney-at-law in Zurich commercial law firm (1989-1993)
  • Partner in Zurich commercial law firm (1993-1996)
  • Founding Partner Badertscher Attorneys at Law (1996)
  • Member of various boards of directors

Memberships

  • Zurich Bar Association (ZAV)
  • Swiss Bar Association (SAV)
  • International Bar Association (IBA)
  • Swiss Fiscal Association
  • International Fiscal Association (IFA)
  • Center For International Legal Studies, Salzburg
  • International Law Office (ILO)

Practice areas

  • Corporate law and contracts
  • M&A and financings
  • Insurance law and liability law
  • Employment law, staff leasing and recruitment services
  • Business succession and entrepreneurs’ support
  • Private clients (inheritance law and family office)
  • Banking and finance
  • Tax law and tax planning
  • Real Estate
  • Litigation, mediation and arbitration
  • International disputes and judicial assistance

Publications

Languages

  • German
  • English
  • French

Updates

Company & Commercial

Shareholders' agreements for closely held companies under Swiss law
Switzerland | 13 November 2017

Shareholders of closely held companies often mutually agree on additional contractual rights and duties. However, the company itself cannot be a contract party to a separate shareholders' agreement. Apart from that legal restriction, such shareholders' agreements usually benefit from the contractual freedom of the parties. A recent Federal Court decision confirmed that such agreements may be recharacterised as abusive or contrary to the principle of good faith.

Interpretation of company articles in Sika takeover battle
Switzerland | 22 May 2017

A recent Zug Cantonal Court decision sheds light on the way that Swiss company articles of association must be interpreted under Swiss company law in cases in which they are not only applicable internally among a few shareholders, but also have an effect on third parties. The decision confirms that the observation of merely the letter and not the spirit of company articles by a company board or majority company shareholders in a general meeting can even amount to an abuse of law.

New Federal Court decision on business judgement rule
Switzerland | 05 September 2016

A recent Swiss Federal Court decision clarified the circumstances under which the personal liability of board members or managers of a Swiss company for their business decisions and omissions can be reduced by applying the so-called 'business judgement' rule or, if the related prerequisites are not met in a particular case, based on other grounds.

Defects in company organisation caused by deadlock
Switzerland | 07 March 2016

The Federal Supreme Court recently clarified how to deal with defects in company organisation caused by deadlock between two equal shareholders. For the first time the court has confirmed that courts are authorised to order a share auction in such cases. However, it is strongly recommended that such a harsh outcome be avoided by installing suitable measures to solve conflicts from the outset.

New anti-money laundering rules affect bearer shares in Swiss companies
Switzerland | 12 October 2015

On July 1 2015 a new regime for bearer shares in Swiss companies was enacted, introducing new legal obligations for company boards and shareholders and severe penalties for cases of non-compliance. To achieve transparency the Code of Obligations established a general duty for all owners of bearer shares in non-listed Swiss companies to disclose their ownership, identity and address to the company within one month of their acquisition.

Clawback risks increase for board benefits of privately held Swiss companies
Switzerland | 05 May 2015

The Federal Supreme Court recently clarified exactly when board members and their close associates and affiliates must return benefits received from a Swiss company because they are manifestly disproportionate to the value of their related performance and the company's overall economic situation.

Group cash-pooling limitations – new Federal Supreme Court guidance
Switzerland | 26 January 2015

The Federal Supreme Court recently decided an appeal against a Zurich Commercial Court decision. The Federal Court clarified company law issues in relation to intra-group loans and cash-pooling systems.The decision limits the amount of free reserves which can be paid out as dividends for as long as loan advancements to other group companies exist which are not at arm's length within the Swiss company.

New limitations on cash pooling?
Switzerland | 22 September 2014

A recent Zurich Commercial Court decision risks jeopardising the use of cash pooling by setting overly onerous standards for the characterisation of an intra-group payment in the cash pool as a legally permitted intra-group loan. Many existing cash pools involving Swiss group companies would violate Swiss law, and the legality of a large amount of dividends already paid by such group companies to their holding companies would be questionable.

'Fat cat' initiative revisited – government implements ordinance
Switzerland | 27 January 2014

Following Switzerland's vote in favour of an initiative against excessive salaries for board members, the federal government has recently adopted the respective implementing ordinance. Swiss listed companies must start early to implement all changes to their articles, regulations, employment contracts and annual general meeting voting procedures, as these decisions fundamentally affect the rights of their shareholders.

Standard form contract available online constitutes valid prorogation of jurisdiction
Switzerland | 21 October 2013

The Federal Supreme Court recently clarified that the Lugano Convention offers the possibility to choose Switzerland as a neutral jurisdiction for companies domiciled in any of its member states, even if the companies are not domiciled in Switzerland. The court also clarified that standard form contracts available only by fax are insufficient, but contracts available only online are sufficient to fulfil the conditions of the convention

Personal liability of board members for abusive lawsuits
Switzerland | 10 June 2013

In the wake of a recent Supreme Court case, diligent board members of Swiss companies would be well advised to minimise their personal liability before launching lawsuits on behalf of their company by seeking legal advice on the related personal liability risk. The consultation should not be limited to a mere assessment of legal issues, but should also include whether a claim on behalf of the company has merit.

Voters say yes to 'fat cat' initiative
Switzerland | 08 April 2013

Switzerland recently voted in favour of an initiative against excessive salaries for board members and executives. New transparency rules and a rigid regime on a binding say on the pay of board members and executives must be enacted. Once enacted, shareholders must vote annually on the aggregate compensation for the board, advisory board and executive management.

Admissibility of law firms under legal form of corporate bodies
Switzerland | 26 November 2012

The Federal Court recently considered whether non-incorporated law firms are permitted to adopt the legal form of a company limited by shares. The court held that it is the organisational structure of a law firm which is decisive, not its legal form. A law firm constituted as a company limited by shares is admissible, provided that it is fully controlled by its attorneys, thereby granting it institutional independence.

Preparing for the new accounting law
Switzerland | 20 August 2012

On January 1 2013 a new accounting and auditing law will enter into force in Switzerland. The new law establishes uniform requirements for all kinds of business, irrespective of their form of incorporation, by introducing the 'same size, same rules' principle. Unlike under certain international reporting standards, consolidated financial statements will usually be required only if the size of a business exceeds certain thresholds.

Unlawful refusal to place an item on the agenda for a general meeting
Switzerland | 01 June 2012

The Supreme Court recently commented for the first time on the prerequisites under which a board of directors is obliged to place an item requested by a shareholder on the agenda for a general meeting. The court further dealt with the question of whether a company's articles of association may impose certain restrictions on a board's competence to delegate the management of the company's affairs to third parties.

Supreme Court rules on creditors' rights of inspection
Switzerland | 12 March 2012

A creditor which requires access to the annual accounts and auditor's report of a stock corporation must prove both its position as a creditor and a legitimate interest. Recently, the Supreme Court reconfirmed the existing practice in both doctrine and jurisdiction, and took the opportunity to specify in more detail the criteria to find an interest warranting protection pursuant to the Code of Obligations.

Code of Obligations: organisational defects
Switzerland | 12 December 2011

Article 731(b) of the Code of Obligations entered into force on January 1 2008. It provides that when a company lacks the required corporate body or if the composition of one of these corporate bodies does not comply with the law, any shareholder, creditor or the commercial registrar may request the court to take the required measures. Article 731(b) of the code is applicable to companies limited by shares, to limited liability companies and to cooperative companies.

Limitation periods in sales and service contracts
Switzerland | 13 June 2011

The Federal Convention is in the process of revising the regulatory regime in relation to statutory limitations. The revision of the respective legislation will extend the existing one-year period to two or even five years and coordinate the various statutes of limitations. This update examines the key aims of the planned revision.

Loans to shareholders: principles and prohibitions
Switzerland | 18 April 2011

Companies commonly enter into loan agreements with their shareholders. However, whenever directors of a Swiss company are contemplating granting loans to shareholders, they must be mindful of the specific restrictions and conditions imposed by general principles of Swiss corporate law. The principles of adequate risk diversification and diligent liquidity management must be observed.

Supreme Court comments on delegation of management by board of directors
Switzerland | 15 November 2010

In a recent decision the Supreme Court commented on the prerequisites for the delegation of management by boards of directors. A distinction must be made between internal and external corporate acts. While the delegation of powers for internal affairs requires both a provision in the articles of incorporation and a written organisational resolution, powers regarding external acts may be delegated by power of attorney.

Supreme Court rules on contractual penalties
Switzerland | 31 August 2010

Following a Supreme Court ruling, it is now possible to provide in purchase agreements that the seller will forfeit the right to claim part of the purchase price if it breaches contractually stipulated obligations. However, penalty clauses which provide for the loss of the right to claim part of the purchase price in case of breach of the seller's contractual obligations in an excessive manner may be mitigated by the court.

Limited liability companies: founders' liability
Switzerland | 04 May 2010

In a recent decision, the Supreme Court had the opportunity to comment on the requirements regarding founders' liability and the calculation method for the respective damages under company law, in particular for a limited liability company. The court held that the common definition of the term 'damages' applied, as opposed to a specific meaning of the term as has been argued for in legal literature.

Swiss notarization of German legal acts: still an issue?
Switzerland | 19 April 2010

German law requires notarization when transferring or pledging limited liability shares. In the past it was possible to make significant savings by obtaining notarization in foreign jurisdictions, especially certain Swiss cantons. Following the amendment of a number of relevant provisions of Swiss and German law, controversy has arisen as to whether foreign notarization can still be validly obtained in Switzerland.

Audit of Internal Control Systems
Switzerland | 14 December 2009

An organization's internal control system covers all of the procedures, methods and controls established by its board of directors and management in order to ensure the proper functioning of business operations. The recent revisions to auditing law have resulted in the need for auditors to audit these systems and present their findings to the board of directors.

Revision of Joint Stock Company and Accounting Legislation
Switzerland | 10 August 2009

In light of the global financial crisis, the federal government has extended the revision of the law on corporations and new accounting legislation that will create standardized rules for all company forms in Switzerland. It has also issued an additional opinion as a counter-proposal to a popular initiative submitted in 2008.

Compensation upon Termination of Distributorship Agreements
Switzerland | 08 June 2009

In a recent landmark ruling the Supreme Court deviated from its previous practice to hold that, in certain circumstances, exclusive distributors have a claim for mandatory compensation upon termination of the distributorship agreement. The court further held that the distributor's claim for client compensation is mandatory and cannot be waived in the distributorship agreement.

Delegation of Management by Board of Directors
Switzerland | 05 January 2009

In two recent decisions the Supreme Court took the opportunity to lay down the minimum standards for an authorized delegation of management competency from the board of directors to individual board members or a third person. Board members in Switzerland may now want to take appropriate steps to ensure that they have correctly delegated the management of their company.

New Requirements for Auditor Independence
Switzerland | 22 September 2008

The revised auditing legislation which entered into force on January 1 2008 implemented new requirements for the independence of auditors. The primary principle for both ordinary and limited audits is that independence may not be affected either in fact or in appearance.

Directors' Duties When a Corporation is in Financial Difficulties
Switzerland | 09 June 2008

Directors have a duty to manage a corporation with due care and are personally liable for damages caused by wilful or negligent breach of this duty. Where a corporation is over-indebted, the directors risk becoming personally liable to anyone that suffers losses if the corporation subsequently goes bankrupt, except where they have complied with their duties under the Swiss Code of Obligations.

Summary of Revised Auditing Law
Switzerland | 10 March 2008

The revised auditing legislation has entered into force, which comprises changes to the Code of Obligations and the entry into force of the new Audit Supervision Act. The amendments establish uniform requirements for all legal entities and provide for an overall auditing law which no longer differentiates between the legal form of entities, but rather focuses on the economic importance of the company.

Shareholders' Right to Initiate a Special Audit
Switzerland | 17 December 2007

Under Swiss law, a shareholder may request at the shareholders' meeting that certain areas be subject to a special audit if this is necessary for the exercise of shareholders' rights and if the right to information or inspection has been exercised previously. The Supreme Court has reviewed the prerequisites for shareholders to appoint a special auditor.

Re-entry of Companies into the Commercial Register
Switzerland | 15 October 2007

The Supreme Court has previously outlined the requirements subject to which a company deleted from the Commercial Register can be reregistered. In most cases a creditor requests re-entry, and it must show credibly the existence of its claim and that it has interests in the reregistration of the company worthy of protection. A recent case considers the existence of these interests.

Scope of Release of the Board of Directors Clarified
Switzerland | 23 July 2007

A release from the general shareholders' meeting shelters the board members from liability claims by the company arising from the intentional or negligent violation of their duties. Recently the Supreme Court dealt with a case involving the release of three members of a board of directors. The court defined the scope of application and the effects of a release granted to the board members.

Regime Governing Swiss Corporations Is Revamped
Switzerland | 14 May 2007

New legislative amendments are intended to adapt the Swiss corporation to reflect current business needs and afford greater flexibility in relation to the organization and incorporation of such companies. The changes are the first step in an initiative to revamp Swiss corporate law to accommodate the needs of modern businesses and to take account of issues that have emerged over the past decades.

Supreme Court Case Law Update
Switzerland | 26 February 2007

According to the Swiss Code of Obligations, at the general meeting of shareholders any shareholder is entitled to request information from the board of directors concerning the affairs of the company, and from the auditors concerning the execution and results of their examination. The Supreme Court recently stated more precisely the scope and limitations of this right.

The 'New' Limited Liability Company
Switzerland | 04 December 2006

Weaknesses in the Swiss Company Law mean that small private businesses choose to operate far more often as stock corporations than as limited liability companies (LLCs). In addition, the reputation of the LLC is not as good as that of the stock corporation. To remedy this situation, the government has proposed amendments to the law.

Directors' Liability and Consent to Violation of Duty
Switzerland | 21 August 2006

Directors cannot be held liable for violation of duty if they can prove that they acted with the consent of the company which suffered damage. If sued by the company, a director may refer to this principle in his or her defence if he or she acted with the explicit or implicit consent of all shareholders, or executed a lawfully passed resolution of the general meeting which was not challenged in court by a shareholder.

Scope of Agency Between the Partners of a Simple Partnership
Switzerland | 13 March 2006

The Supreme Court recently decided a case which involved the question of whether a partner in a partnership had acted within or beyond the ordinary scope of the partnership's business and whether the partner's actions had been binding for the partnership. The court held that the type and magnitude of a legal transaction must be considered when deciding whether a legal transaction is ordinary.

Supreme Court Confirms Required Qualifications for Auditors
Switzerland | 06 March 2006

Under Swiss law, every corporation must appoint an auditor to audit its annual financial statement, and auditors must be qualified in order to fulfil their duties. A recent Supreme Court decision provides guidance on auditors' qualifications. More detailed independence rules in the pipeline contain an explicit list of circumstances which prohibit audit firms and auditors from auditing certain clients.

Minority Shareholders' Exit Rights
Switzerland | 26 September 2005

It is controversial in Swiss legal doctrine whether an exit right can be established in a company's articles of incorporation. The traditional view is that this is not possible. More recently, however, some legal commentators have suggested that a right could be introduced if the exit proceedings were in line with the provisions for a reduction in share capital set forth in the Swiss Code of Obligations.

Directors' Liability and the Business Judgement Rule
Switzerland | 04 July 2005

The Swiss Code of Obligations provides that company directors are liable for damage caused by an intentional or negligent violation of their duties. On the other hand, a director or officer cannot be held liable for damage caused by an incorrect business decision. In a liability case, the court must decide where to draw the line between a violation of duty and a decision which proved to be incorrect.

Voidability of Contracts Based on Error
Switzerland | 09 May 2005

The Swiss Code of Obligations provides that a person acting under a material error at the conclusion of a contract is not bound by it. In principle, an error regarding the motives of the contractual parties does not prevent the formation of an effective contract - but these motives will be relevant if they carry such weight as to constitute preconditions for the conclusion of the contract.

Company Group Law in Switzerland
Switzerland | 04 April 2005

The Swiss Code of Obligations regards multiple companies under a single management as a lawful company model. However, several mandatory provisions of its corporate law section oppose the concept of multiple companies under one management. This inherent contradiction creates considerable legal uncertainty.

Appointment of Special Auditors
Switzerland | 14 February 2005

Under the Swiss Code of Obligations, any shareholder may propose, at the general meeting of shareholders, that certain facts be subject to a special audit if this is necessary for the exercise of shareholder rights and if the right to information and right to inspection have been already been exercised.

Board Members' Right of Information and Right of Inspection
Switzerland | 18 October 2004

In Switzerland, each member of the board of directors of a stock corporation has an extensive individual right to information and inspection. The right covers information about all matters concerning the company and its subsidiaries. The Swiss Code of Obligations sets out minimum requirements in this regard, which the board may expand if it wishes.

Directors' Right to Information
Switzerland | 02 February 2004

The Supreme Court recently overturned an order obliging a company to provide a former director with certain financial information he had requested after leaving the company. It confirmed that a director's right to information is connected to his position on the board of directors; once he has left the board, a former director can no longer appeal to this right.

Refusal of Share Transfer Disadvantaged Minority Shareholders
Switzerland | 13 October 2003

The Swiss Supreme Court recently decided that in certain circumstances, a refusal of the board of directors to consent to a transfer of registered shares can violate the principle of equal treatment of shareholders and constitute an abuse of legal right.

Supreme Court Case Update
Switzerland | 28 July 2003

In two recent decisions the Swiss Supreme Court considered the question of auditor's liability and the legal qualification of a contract whose subject was the transfer of an enterprise.

Dissolution of Companies by Commercial Registrar
Switzerland | 19 May 2003

The Swiss commercial registrar has the power to dissolve a registered company if that company infringes any mandatory provisions regarding the composition of the board of directors or the company's domicile. The registrar is not obliged to monitor compliance with these rules on an ongoing basis, but must review their fulfilment if changes to the registration are requested.

Supreme Court Case Law Update
Switzerland | 17 February 2003

The Supreme Court recently ruled on whether a company's acquisition of assets after its incorporation was in violation of the Swiss Code of Obligations. It also considered the moment in a sales contract at which risk passes from the seller to the buyer.

Supreme Court Offers Guidance on Interpretation of Contracts
Switzerland | 18 November 2002

The Swiss Supreme Court has reiterated that where the validity of a contract or agreement is disputed, the judge has a duty to look beyond the simple facts to determine the parties' real intent. The judge can employ interpretative methods in order to do so, even where the wording of the contract or agreement appears to be clear.

New Best Practice Code for Corporate Governance Issued
Switzerland | 16 September 2002

A new code contains important guidelines which should help executives in public companies to control and run their companies according to the principles of proper corporate governance. The guidelines advocate a system based on checks and balances between shareholders, the board of directors and the executive board.

Case Law Update
Switzerland | 05 August 2002

The Swiss Supreme Court recently considered whether persons who are explicitly acting on behalf of an existing corporation should be released from liability for their actions. It has also examined the legal relationship between a corporation and its management bodies.

Supreme Court Rules on Liability of Corporate Bodies
Switzerland | 18 March 2002

In the wake of the financial collapse of Swissair, the liability of board members and auditors has been the subject of much discussion in Switzerland. The Federal Supreme Court recently ruled on three cases in which corporate bodies were sued for violation of their duties.

Insurance

Insurers' contractual obligations in case of fraudulent claims
Switzerland | 25 September 2018

Under the Insurance Contract Act, insurers are not bound by a contract if, for deception purposes, the insured party incorrectly notifies or conceals facts from the insurer which would exclude or reduce the insurer's obligation to provide indemnification. Insurers can therefore refuse payment and withdraw from such contracts. The Federal Supreme Court recently confirmed this to be true even if an insured party does not make false statements directly to the insurer, but rather to a medical doctor who confirms their inability to work.

Right of recourse in insurance law: end of Gini/Durlemann practice
Switzerland | 26 June 2018

The Supreme Court recently abandoned its long-standing practice of restricting recourse under the Gini/Durlemann doctrine, which was first adopted in 1954. The court held that any non-contractual liability falls within the meaning of 'prohibited act', including all facts standardised as hazardous or simple causal liability. Private insurers must therefore be treated the same as social insurance carriers with respect to the causally liable party that causes an accident.

Supreme Court: scope of full and final settlement clause in insurance matters
Switzerland | 27 February 2018

The Supreme Court recently dealt with the scope of a full and final settlement clause in an insurance matter. The decision confirms the rules for interpreting settlement agreements in insurance matters and emphasises the importance of carefully drafting the wording of such agreements if they are intended to be full and final settlement agreements of certain insurance claims.

Is surveillance of insured parties lawful?
Switzerland | 24 October 2017

The European Court of Human Rights recently concluded that Switzerland violated Article 8 of the European Human Rights Convention due to surveillance of an insured party. The case brings uncertainty regarding the extent of observation under Swiss law. Article 8 guarantees the fundamental right to respect private and family life. In its statement, the court held that Swiss federal law offers no precise legal basis for photo and video surveillance of insured parties.

Triggering event for insurance benefits in loss of earnings insurance
Switzerland | 23 May 2017

In the context of loss of earnings insurance, the Federal Supreme Court recently had to decide whether sickness or the inability to work due to the respective sickness constitutes an insured event and therefore triggers the insurer's duty to provide insurance benefits. The court abandoned its existing case law in which it had appraised the sickness as a primary event for the determination of when the insured event had occurred.

Liability for ongoing daily benefits insurance claims under Freedom of Movement Agreement
Switzerland | 24 January 2017

The Federal Supreme Court recently ruled that the regulation in the Freedom of Movement Agreement concerning the liability of new daily benefits insurance for ongoing claims that started before the conclusion of an insurance contract under a previous insurance contract does not breach the prohibition of retroactive coverage according to Article 9 of the Insurance Contract Act.

Partial revision of Federal Act on Insurance Contracts
Switzerland | 27 September 2016

In 2013 the Federal Parliament rejected a bill for a total revision of the Federal Act on Insurance Contracts, with an order to the Federal Council to elaborate a partial revision on selected subjects. In its second attempt to adapt the law to existing standards and policyholders' need for reasonable and feasible insurance protection, the Federal Council drafted an amended bill and recently initiated consultation proceedings on the proposals.

Insufficient disclosure of indicating circumstances in insurance contracts
Switzerland | 17 May 2016

The Federal Court has ruled that no or insufficient disclosure of indicating circumstances by an insured party falls under Article 6 of the Insurance Contract Act if this information was relevant in determining the probability of the risk which later was realised and caused damage. Further, the court held that the insurer is freed from its contractual payment obligation if it terminated the insurance contract within the required time.

Supreme Court rules on liability policies and claims-made principle
Switzerland | 19 January 2016

The Federal Supreme Court recently rendered a rare judgment on the temporal scope of liability policies and the claims-made principle. Although it may lead to a broader scope of covered claims, the decision should be seen in a positive light, as it brings additional clarity with regard to the interpretation of claims-made clauses in insurance policies.

Amended rules on insurance supervision
Switzerland | 13 October 2015

The need for further revision to the Insurance Supervisory Law has been revealed through the introduction of risk-based solvency measuring methods, including the Swiss Solvency Test. The establishment of the test as the sole instrument for testing solvency and a focus on Solvency II will result in harmonisation, while revisions to the Insurance Supervisory Ordinance should see increased reporting efforts.

Nanotechnology – can insurance play a role in regulation?
Switzerland | 16 June 2015

As highly qualified specialists in risk assessment, reinsurers deal with nanotechnology as an emerging risk. The small amount of available data regarding nanoparticles complicates insurers' risk assessments and has led to calls for future-oriented coping strategies that identify, record and analyse risks and implement appropriate measures. Not all risks are insurable: a risk must be measurable and financially definable to qualify for insurance.

Supreme Court decides on ambiguous clauses in general insurance terms
Switzerland | 24 February 2015

The Federal Supreme Court recently issued a decision on the rule of ambiguity in the context of the interpretation of general insurance terms. The court found that a provision which excludes accidents as a result of the deliberate causation of a crime or offence is neither considered unusual nor ambiguous, and can therefore validly be relied upon by the insurer.

General insurance terms integral to insurance agreement
Switzerland | 28 October 2014

The Federal Supreme Court recently held that general terms and conditions can be validly included in an insurance contract even if no reference is made to a particular version or edition, provided that the reference to the general terms and conditions is made expressly in the application form. In such a case, the general terms and conditions in force at the time of signing of the application will apply.

Insurance fraud through omission – qualified duty to act required
Switzerland | 15 July 2014

The Federal Supreme Court recently quashed a criminal verdict and held that insurance fraud by omission requires a qualified duty of the perpetrator to act. The ruling makes it clear that insurers should enquire regularly into changes in insureds' circumstances. By continuing payment of insurance benefits without enquiry, an insurer cannot hold an insured criminally liable for fraud.

New rules for asset managers of Swiss professional pension insurances
Switzerland | 10 June 2014

Revisions to the Professional Pension Insurance Act specify requirements for the management of Swiss professional pension insurance assets. The Upper Supervisory Authority for Professional Pension Insurances can now admit both Swiss and foreign financial service providers to manage Swiss professional pension insurance assets. The new law provides for extensive examination of integrity before admission.

Prescription period for paid sick day allowance clarified
Switzerland | 01 April 2014

A recent Federal Supreme Court case clarified that the general limitation regime applies with regard to the underlying right for loss-of-income insurance, unless a special rule is stipulated. According to the court, the scope of the Insurance Contract Act is limited to individual instalments paid under the insurance contract. The court also defined the point in time at which the limitation period starts running.

FINMA circular on market conduct rules extended to apply to insurers
Switzerland | 19 November 2013

A revised Financial Market Supervisory Authority circular containing rules on market conduct now applies to insurance companies. Insurers must take the organisational measures necessary to fulfil the duties laid down by the circular. While the insurance industry is sceptical, it remains to be seen what the practical impact on insurers will be.

Strict rules for disclosure of risk factors confirmed
Switzerland | 20 August 2013

The Federal Supreme Court recently dismissed the appeal of an insured individual who challenged the rescission of a private insurance contract for misrepresentation. The court confirmed the strict rules for the disclosure of conclusive risk factors when concluding private insurance agreements and outlined the reasons which entitle an insurer to terminate a policy for misrepresentation.

Professional Negligence

Liability for Breach of Trust
Switzerland | 07 July 2004

The Supreme Court recently had to decide whether an architect who provided a valuation of a property to a homeowner for mortgage purposes was to be held liable for misrepresentations in the valuation to a third party who bought the property two years later.