The Swiss insurance and reinsurance market is very diverse. All types of companies are represented, from globally operating all-liners to locally based providers of customised solutions. However, the Swiss insurance market does not consist solely of large, internationally orientated companies; in addition to a broad midfield, a large number of small, locally established companies are characteristic of Switzerland's insurance landscape. Some of these companies were founded as social self-help organisations and are run on cooperative lines to this day.2
In 2018, the total number of insurance companies under supervision was 199 (of which 47 were branches of foreign insurance companies). The total number of reinsurers was 54 (of which 27 were reinsurance captives).3
The regulatory body in Switzerland is the Swiss Financial Market Authority (FINMA),4 which regulates banks, insurers, insurance intermediaries, collective funds and the financial markets. The insurance sector of FINMA (including reinsurance) is dealt with by approximately 100 employees. For social insurance businesses (such as mandatory health and accident insurance as well as occupational pension funds), the Swiss Federal Office of Social Insurance is the competent regulator.
As Switzerland is not a member of the European Union (EU) or the European Economic Area (EEA), the freedom of services regime and the possibility to apply for local passporting rights do not apply. Although there are bilateral treaties between the European Union and Switzerland in place, there is no single passport of licences between EEA Member States and Switzerland. The only exception is the bilateral treaty between Switzerland and the Principality of Liechtenstein, where both countries give each other freedom of services in insurance matters. In addition, the Agreement between the EU and Switzerland concerning direct insurance of 10 October 1989 is in place, which lays down the conditions necessary and sufficient to enable insurers whose head offices are situated in an EEA Member State to establish branches in Switzerland and vice versa. This Agreement is particularly important for determining the jurisdiction in which an insurance activity is given.5
Insurance supervision is regulated by the Insurance Supervisory Act (ISA) and the respective Insurance Supervisory Ordinance (ISO). According to Article 2 of the ISA, the following insurance undertakings fall under the supervision of FINMA: Swiss insurance companies that have their seat in Switzerland and carry out direct insurance or reinsurance business; and foreign insurance companies (without their seat in Switzerland) that conduct insurance activities in Switzerland (and are therefore doing Swiss business).
Business is considered to be Swiss business if the policyholder or any of the insureds is domiciled in Switzerland or if the insured property is located in Switzerland.6 Whether the product is physically distributed in Switzerland is irrelevant.
Exempt from supervision are foreign insurance companies (i.e., companies that have their seat abroad) if they only operate reinsurance in Switzerland7 or write as primary insurer the following risks in relation to marine, aviation and international transport: risks lying abroad (irrespective of whether the policyholder or the insured is domiciled in Switzerland), and war risks.8
If none of the above-mentioned exceptions apply, the insurance company is subject to Swiss supervision and needs to obtain approval from FINMA before it commences insurance activities.9 If a foreign insurance company does not intend to apply for authorisation it is, apart from the above-mentioned exceptions, only permitted to write business in Switzerland as a reinsurer. Policies would then have to be issued by a Swiss licensed fronting company, and the foreign insurance company would act as a reinsurer and be exempt from Swiss supervision.
Insurance intermediaries also fall under the supervision of FINMA. The law basically draws a difference between those that are affiliated with insurance undertakings and those that are not (i.e., brokers). Both fall under the supervision of FINMA, but only non-affiliated intermediaries need to be registered in the register of insurance intermediaries.10 The supervision of FINMA only relates to the intermediary's activities in Switzerland; activities of the intermediary performed abroad are not supervised by FINMA even if the intermediary is based in Switzerland.11
An insurer or reinsurer seeking approval to carry out insurance or reinsurance activities has to submit an application to FINMA together with a business plan.12 The application and the business plan are based on a number of standardised forms.
With regard to taxation, the Swiss tax authorities levy Swiss federal stamp duty at a rate of 5 per cent on insurance premiums. This does not apply to reinsurance premiums, and there are certain exceptions for primary insurance as well (such as cargo, health, life and accident insurance). VAT is not levied on insurance or on reinsurance premiums.
III INSURANCE AND REINSURANCE LAW
i Sources of law
Switzerland is a civil law country and, as such, the law recognised as authoritative is statutory law passed by the competent legislature, which may be at the cantonal or federal level depending on what is provided for in the Federal Constitution of the Swiss Confederation. The legislation for private insurance is in the competence of the federal state.13
The key source of private insurance contracts is the Federal Act on Insurance Contracts (ICA). Complementary to that, the Swiss Civil Code and the Code of Obligations (CO) have to be considered. The ambit of the ICA is limited by its Article 100, according to which reinsurance contracts are not regulated by the ICA but by the CO. In an international context the Federal Act on Private International Law Act (PILA) has to be consulted to determine the relevant governing law.
In a broader sense, insurance law is composed of not only these core provisions, but also of the law of special subjects. Examples include, but are not limited to, consumer protection law, data protection law and the law against unfair competition.
ii Making the contract
Conclusion of the contract
Where an offer is made by the insured and no time limit is set, it remains binding on the offerer for 14 days.14 If the insurance requires a medical examination, the application period is extended to four weeks.15
The conclusion of an insurance contract necessitates mutual consent with respect to the essential terms and the expression thereof by the parties.16 For this reason, an insurance contract is reached if the parties agree that by the occurrence of a specified event the insurer has to deliver a specific performance and, in return, the insured has to pay the premium.
Pre-contractual duty of disclosure and representations
In the ambit of the ICA, Swiss law differs from the risk-declaration paradigm adhering to the doctrine of utmost good faith and its associated subdivision of representations and non-disclosure.
The insurer is responsible for obtaining the necessary information to assess the risks.17 With respect to the relevant risk factors, a customer only has to disclose information that the insurer explicitly requests in writing.
However, the principle of utmost good faith is relevant in the field of reinsurance business. The insurer is obliged to disclose all information needed by the reinsurer to make its underwriting decision (e.g., tariffs, contract terms or underwriting guidelines).18
Further, the concept of 'warranty' as such is not known to Swiss law. What appears to best correspond with this concept are the duties that insureds take on at the conclusion of a contract for loss avoidance. However, the infringement of this duty only has an effect if it has an impact in a concrete insured event.19
Recording of the contract
Freedom of formality
Article 11 of the CO states the freedom of formality. Thereafter, the CO does not require parties to follow a specific form to achieve legally binding contracts unless the law provides otherwise. Since neither the CO nor the ICA demand observance of form, insurance contracts can be effected orally or even without using words by consenting behaviour. However, the insurer has to inform the insured before or at the conclusion of the contract about the identity of the insurer and the essential terms of the insurance contracts (i.e., the insured perils, the premiums as well as the inception and termination of the insurance contract).20
Decisiveness of the insurance policy
On conclusion of an insurance contract, the ICA commits the insurer to issue an insurance policy that records the parties' rights and obligations. Thereby, the policy performs the function of an instrument of evidence, and in conjunction with the insurer's signed offer it gives certain alleviations in recovery proceedings for premiums.21
Pursuant to Article 12 of the ICA, the policyholder has to claim correction within four weeks in the event that the policy deviates from the original contract terms. In cases of default, the insurance policy has constitutive effect in the sense that its purport shall be deemed approved.
iii Interpreting the contract
Article 18 of the CO provides that the genuine will of the parties to the contract is key to any interpretation. Accordingly, a judge has first and foremost to establish the parties' real intent, which might differ from their written legal act.
If a court cannot ascertain the parties' intentions or if there is no consensus, the court will resort to the parties' presumptive intent. The court thereby establishes objectively how the parties, considering all circumstances, could and should have understood the contract's contested clause or clauses in good faith.22
In interpreting the contract, a judge avails himself or herself of different means and rules. The primary instrument with precedence over the other means relates to the wording used by the parties. All the circumstances under which the contract has been concluded also need to be considered. For that reason, the judge particularly takes into account the purpose of the contract and the parties' interests in the performance thereof;23 the history of the contractual negotiations and the conduct of the parties before entering into the contract (historical interpretation);24 and usages in the specific field.
Findings based on these means of interpretation are subject to further rules of interpretation. The most important are as follows:
- The 'principle of trust', which is particularly important. Based on this principle a statement made by one party is to be interpreted from the addressee's objective point of view.
- Contract provisions. These provisions should be interpreted with regard to the place they occupy in the contract's structure and the purpose they serve within that structure (systematic interpretation).
- Swiss statutory rules. Statutory provisions of Swiss contract law are divided into two types: mandatory and supplemental rules. Where the contract regulates an issue, but the meaning of the contract's provisions is unclear, the parties can be presumed to have ascribed to their agreement the same meaning as that resulting from supplemental law.25 This rule of interpretation does not extend to mandatory statutory provisions, as these will apply in any event and take precedence over the contract's terms.
- The interpretation in dubio contra stipulatorem. Wording that can be understood in good faith in different ways will normally be interpreted in accordance with the understanding of the party that did not draft the disputed provision.26 For insurance matters, this rule is specifically reflected in Article 33 of the ICA.
The field of direct insurance agreements essentially consists of the practice of two types of contract terms: those in separate agreements; and the insurers' general standard terms and conditions (GTCs). The latter only take effect if they are being specifically referred to on the occasion of concluding the contract and only insofar as no other specific individual agreement exists.27
The admissibility of GTCs in insurance contracts is further subject to Article 8 of the Federal Act Against Unfair Competition (UCA). According to that norm, GTCs shall be deemed abusive where they create a significant and unjustified disparity between contractual rights and obligations to the detriment of consumers in a manner that breaches the principle of good faith. This norm empowers the courts to review the content of GTCs in business-to-consumer contracts and to void any clauses that do not meet the requirements of Article 8 of the UCA.
iv Intermediaries and the role of the broker
Pursuant to Article 40 of the ISA, insurance intermediaries refers to all persons offering or concluding insurance or reinsurance contracts. This extends to agents, brokers and independent insurance advisers as well as the sales force of insurance companies.
As a consequence, all intermediaries falling under the provision of Article 40 of the ISA are subject to the supervision of FINMA. However, only insurance intermediaries that are not affiliated with an insurance company legally, financially or in any other capacity (in essence that means brokers) are subject to registration.28 Affiliated insurance intermediaries, on the other hand, are free to register (tied agents). Rules as to the question of when affiliation is assumed can be found in Article 183 of the ISO. Especially noteworthy are Letters (a) and (b) of Paragraph 1, which state that no registration is required if the majority of the commissions the intermediaries receive during a calendar year are predominately from one or two insurers; and if the intermediaries receive compensation or other financial advantages from insurers that do not conform to customary compensation for insurance intermediation, and that therefore could affect their independence.
From a regulatory point of view, brokers are obliged to disclose to potential customers at first contact various information (i.e., the broker's or the insurer's identity, persons that can be held liable for negligence or information regarding the processing of personal information).29
Many Swiss brokers are members of the Swiss Insurance Brokers Association,30 which has its own conduct rules.31 These rules set out ethical standards, the duties of the broker (providing risk analysis, drafting of policies, customer support and assistance in claims handling), and his or her relationships with the insured and the insurer.
The qualification of intermediaries as either tied agents or brokers has an impact on their duties while contracting. The relation between broker and customer is deemed a mandate under Swiss law that provides a duty of care of the brokers for the customer's interest in a comprehensive manner. Failing to do so may lead to liability. Since this liability arises in connection with commercial activities conducted under official licence, any exclusion thereof may apply at most to slight negligence.32 To cover these claims, brokers are, under regulatory law, obliged to have professional indemnity insurance or similar financial security.33
The loyalties and duties of a tied agent as against a prospective client are far more limited. Since agents are to assign to the legal sphere of the insurer, the duty to advise ranges only over their own products. Market expertise is not required. Unlike with brokers, a breach of a duty of care may be attributed to the insurer, which can be held liable for it.34
The insured has to inform the insurer about an event covered by the policy as soon as he or she becomes aware of the incident and the resulting claims.35 Unless otherwise agreed, there is no procedure that has to be followed. Negligent delay in providing this information entitles the insurer to reduce claims to the extent that the loss could have been avoided or mitigated in the case of timely notification.
At the insurer's request, the beneficiary must disclose all circumstances relevant to the course or the future development of the incident in question.36 Deliberate misrepresentation or concealment of such facts that could diminish or suspend an insurer's obligations void the coverage. Further, an insurer is released from its obligations if the insured does not report a loss with the intent to ameliorate his or her position.37
In the event of a partial loss, both the insurer and the policyholder may terminate the insurance policy.38
Insurance payments are due four weeks after the date the insurer received sufficient information to legitimate a claim under the policy.39 Should there be outstanding premiums, the question of set-off arises. In line with Article 120 of the CO, where two persons owe each other sums of money, and provided that both claims have fallen due, each party may set off their debt against their claim (i.e., a person who has undertaken an obligation in favour of a third party may not set off that obligation against that party).40 However, there is an exception in direct insurance for the account of third parties. In this case, the insurer can set off claims for outstanding premiums against the beneficiary even though the latter is not the debtor of the premium.41
As regards dispute resolution clauses, jurisdiction and arbitration clauses are permitted and often found in insurance and reinsurance contracts, the latter particularly in reinsurance contracts. Mediation clauses are legally possible, although in practice are very rare.
IV DISPUTE RESOLUTION
i Jurisdiction, choice of law and arbitration clauses
In a domestic context, the court at the domicile or registered office of the defendant or at the place where the characteristic performance must be rendered has jurisdiction over actions related to contracts.42 For actions arising out of the commercial or professional activity of an establishment or branch, the court at the defendant's domicile or registered office or at the location of the establishment has jurisdiction.43 However, in disputes concerning consumer contracts for actions brought by the consumer, the court at the domicile or registered office of one of the parties has jurisdiction.44
International disputes in Switzerland are ruled by the PILA and international treaties, as applicable. In the European field, the Lugano Convention is of particular importance.45 The Convention includes a special chapter concerning insurance disputes. The consumer-related norms in Article 15 et seq. do not apply.
Jurisdiction clauses have to be in line with the body of law applicable according to the situation. In purely domestic situations, the Civil Procedure Code (CPC) has to be consulted. International disputes demand the consideration of the PILA or international treaties. In European matters, the Lugano Convention is again relevant.
Choice of law
Choice of law under consumer contracts is prohibited.46 In all other cases, parties may diverge from the general rules.47 However, provisions of Swiss law – the application of which, owing to their particular purpose, is compulsory irrespective of the governing law designated by the parties – remain unaffected.48 Relevant case law in this respect has yet to be established.
The cantons may designate a special court (as in Zurich, Berne, Aargau and St Gallen) that has jurisdiction as sole cantonal instance for commercial disputes (the commercial court). Commercial proceedings are considered insurance matters with a value in dispute of at least 30,000 Swiss francs and involving parties registered in the Swiss Commercial Registry or in an equivalent foreign registry.49 If only the defendant is registered and the value in dispute is reached, the claimant may choose between the commercial court and the ordinary court.50 In Zurich, the ordinary courts are the district courts and, for proceedings where the sum in dispute is less than 30,000 Swiss francs, the single-judge courts. All these courts have the function of trial courts.
Appeals in line with Article 308 et seq. of the CPC are admissible against final decisions of ordinary courts if the value of a claim in the most recent prayers for relief is at least 10,000 Swiss francs.51 These appeals may be filed on grounds of incorrect application of law or incorrect establishment of the facts.52
No internal cantonal remedy is given for commercial court decisions – that is, the remedies mentioned only apply if claims are filed with the ordinary courts.
Commercial court and high court final decisions are subject to appeal to the Federal Supreme Court if the dispute value is at least 30,000 Swiss francs.53 With respect to allegations of infringement of federal law, the judges' cognition is not limited. Factual findings of a prior instance may only be overruled if they are obviously wrong.54
Testimonies, physical records (documents), inspections, expert opinions, written statements, and questioning and statements of the parties are all admissible evidence. Testimonies, expert opinions and physical records form the primary type of evidence in insurance proceedings. Statements of the parties are of minor importance.
Procedural costs include court and party costs that the unsuccessful party must bear. In both cases, the courts mostly award costs by reference to a cantonal tariff. The courts have discretion to amend the amount payable under the tariff by reference to a number of factors, such as the complexity of the case, the number of hearings and the number of documents processed.
The fee agreement between clients and lawyers can be made without regard to cantonal tariffs and provisions. It is most common to agree on an hourly rate. Lump-sum agreements are admissible as long as such fee is in line with the estimated services being rendered by the lawyer.
The limits within which success fees are allowed are unclear under Swiss law. However, it can be stated that these fees are permitted if there is an agreed hourly fee (which must cover the lawyer's costs), and an incentive payment comes only in addition to the hourly rate, and is not of predominant significance to the extent that conflicts of interest could arise.
Funding the process
A person is entitled to legal aid if he or she does not have sufficient financial resources and the case does not seem to be devoid of any chances of success.55
If the person seeking aid wins, the losing party pays the successful party's legal fees. If the person seeking aid loses, his or her legal fees will be paid by the canton. An indemnity for the opposing party, if any, still has to be paid by the person seeking aid.56 Rendered legal aid must be reimbursed as soon as the beneficiary is in a position to do so.57
The costs of a lawsuit can be insured by means of legal assistance insurance, although such insurance in Switzerland usually provides a waiting period of three months or more.
Third-party funding is lawful in Switzerland, and is not specifically regulated.
Although it would be permissible to provide an arbitration clause in an insurance policy, this is not seen very often. However, arbitration clauses sometimes appear in directors' and officers' liability insurance and other financial lines of business policies.
A special form of arbitration is compulsory in legal assistance insurance where the insurer and policyholder have different opinions in respect of the measures to be used for the handling of the claim.58
In reinsurance matters, arbitration is the usual means to resolve potential disputes. Swiss arbitration is, however, not very often seen, but usually arises in retrocession agreements. If the parties agree on Swiss arbitration, they usually prefer ad hoc rather than institutional arbitration. If the reinsurance contract does not provide in detail the type of proceedings they would like to follow, the arbitrators will decide how they will proceed59 and will normally refer to the UNCITRAL Arbitration Rules. In ad hoc arbitration, arbitrators usually work on an hourly rate basis.
The role of the courts is limited in international arbitration. The arbitral panel renders its own procedural orders, provides precautionary measures and takes evidence on its own.
The influence of the national courts is limited to those cases where its assistance is necessary (i.e., where one party does not comply with precautionary orders60 or where evidence can only be taken with the assistance of the courts).61 Further intervention of the national courts could be for the appointment, removal or replacement of an arbitrator in the event that one of the parties defaults.
The grounds for appeal against awards in international arbitration are very much restricted. The only remedy would be an appeal to the Federal Supreme Court, and the grounds for appeal would be limited to a violation of fundamental procedural rights as follows:62
- the sole arbitrator was designated or the arbitral tribunal was constituted in an irregular way;
- the arbitral tribunal wrongfully accepted or declined jurisdiction;
- the arbitral tribunal decided on points of dispute that were not submitted, or it left undecided prayers for relief that were submitted;
- the principle of equal treatment of the parties or the right to be heard was violated; or
- the award is incompatible with public policy.
Where no party has its domicile or a business establishment in Switzerland, the parties may exclude any challenge to the arbitral award (or confine the exclusion to specified grounds for challenge) by an explicit declaration in the arbitration agreement or in a subsequent written agreement.63
iv Alternative dispute resolution
Methods for alternative dispute resolution (including mediation) are rarely used in the wording of primary insurance policies.
In reinsurance contracts, the parties are usually obliged to try to settle their claims amicably or go to a mediator before they initiate arbitration. However, the binding effect and consequences of a breach of this obligation are not very clear, apart from the fact that the obligation could not prevent one party from initiating arbitration without having followed the required methods laid down in the reinsurance contract.
Mediation is not very established in commercial matters (including insurance and reinsurance), and there are no known mediation centres in Switzerland. If the parties intend to go to a mediator they would do so abroad (particularly in England, the United States or Singapore).
The Swiss courts do not encourage parties to go to mediation. However, some judges (in particular in the Zurich and Berne Commercial Courts) prefer to summon parties to a hearing and try to convince them to settle the claim.
V YEAR IN REVIEW
The Swiss Federal Council's plan to completely revise the ICA (after it was amended in 2006) ultimately raised too many controversial issues, and it was requested to prepare a partial revision, which was presented on 28 June 2017. At the time of writing, it is uncertain when the revised ICA will enter into force. Since the first quarter of 2018, it has been under discussion in Parliament and could come into force in 2021. The revised bill will extend the right of injured parties to directly claim against insurers only partially (the original bill provided a general possibility for direct claims). An amendment of considerable significance relates to the recourse possibilities of insurers. This amendment would also be in line with a 2018 ruling of the Federal Supreme Court that facilitated the recovery rights of insurers against liable parties.64 Previously, their right of recourse was restricted; for instance, the insurer covering damage was not able to take recourse against the responsible person if it was only liable based on strict liability or if it was contractually liable but did not act through gross negligence.65 The revised ICA will provide for a norm that leads to full subrogation rights by putting insurers into the shoes of the insureds and, thus, also enabling property insurers to take recourse actions in matters such as those mentioned above (see the Article 95c of the ICA).
VI OUTLOOK AND CONCLUSIONS
Switzerland has long been an important centre for the reinsurance industry for a variety of reasons. The trend of moving reinsurance business to Switzerland was originally started by companies with large exposures in the United States. The process is known in Switzerland as 'redomestication', as under Swiss corporate law it is possible to move a foreign domiciled company into Switzerland without dissolving it. Currently, Brexit and its effect on the insurance industry is being widely discussed.
1 Lars Gerspacher is a partner and Roger Thalmann is an associate at gbf Attorneys-at-law Ltd.
2 'Nothing works without insurance', Swiss Insurance Association, 2010, at p. 16.
3 FINMA insurance market report 2018, dated 5 September 2018, at p. 4.
5 Cf. Article 8.2 of this treaty.
6 Article 1(1) ISO.
7 Article 2(a) ISA.
8 Article 1(2) ISO.
9 Article 3(1) ISA.
10 Articles 42 and 43 ISA.
11 Article 182 ISO.
12 Article 4(1) ISA.
13 Article 98(3) Federal Constitution of the Swiss Confederation.
14 Article 1(1) ICA.
15 Article 1(2) ICA.
16 Article 1(1), Article 2(1) and Article 18(1) CO.
17 Article 4(1) ICA.
18 Stephan Fuhrer, Schweizerisches Privatversicherungsrecht, Zurich/Basle/Geneva 2011, No. 18.30; Rolf Nebel, in: Heinrich Honsell, Nedim Peter Vogt, Anton K Schnyder (ed), Kommentar zum Schweizerischen Privatrecht, Bundesgesetz über den Versicherungsvertrag (VVG), Basle/Geneva/Munich 2001, Article 101 No. 35.
19 Article 29 ICA.
20 Article 3 ICA.
21 Stephan Fuhrer, op cit. 17, No. 3.96.
22 Peter Gauch, Jörg Schmid, Susan Emmenegger, Schweizerisches Obligationenrecht Allgemeiner Teil, Vol. I, 9 Ed., Zurich/Basle/Geneva 2008, No. 207; Federal Supreme Court judgments, reported at BGE 133 III 675, at p. 681; and at BGE 122 III 106, at p. 109.
23 Federal Supreme Court judgments, reported at BGE 129 III 702, at p. 707; and at BGE 119 II 368, at p. 373.
24 See, for instance, the Federal Supreme Court judgment, reported at BGE 114 II 265, at p. 267.
25 Gauch et al, op cit. 21, No. 1230.
26 Federal Supreme Court judgments, reported at BGE 119 II 368, at p. 372, and Federal Supreme Court Judgment No. 4C.215/2002 of 11 November 2002, consid. 2.4.
27 Gauch et al, op cit. 21, Nos. 1128 et seq. and 1138 et seq.
28 Article 43(1) ISA.
29 Article 45 ISA.
32 Article 101(3) CO.
33 Article 44 ISA.
34 Article 34 ICA.
35 Article 38(1) ICA.
36 Article 39 ICA.
37 Articles 39 and 40 ICA.
38 Article 42 ICA.
39 Article 41 ICA.
40 Article 122 CO.
41 Article 18(3) ICA.
42 Article 31 of the Civil Procedure Code.
43 Article 12 CPC.
44 Article 32 CPC.
45 Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
46 Article 120(2) PILA.
47 Article 116 PILA.
48 Article 18 PILA.
49 Article 6(1) CPC.
50 Article 6(2) CPC.
51 Article 308 CPC.
52 Article 310 CPC.
53 Article 74 Federal Supreme Court Act.
54 Article 105(2) Federal Supreme Court Act.
55 Article 117 CPC.
56 Article 122 CPC.
57 Article 123 CPC.
58 Article 169(1) ISO.
59 Article 182(2) PILA.
60 Article 183(2) PILA.
61 Article 184(2) PILA.
62 Article 190(2) PILA.
63 Article 192(1) PILA.
64 Federal Supreme Court judgment of 7 May 2018 (Case No. 4A_602/2017).
65 Cf. Federal Supreme Court judgments, reported at BGE 137 III 353 and 80 II 247 and explanatory report of the Federal Department of Finance on the 'Revision of the Insurance Contract Act (ICA)' dated 6 July 2016, p. 51.