January 29th, 2019 – Has Gini/Durlemann Finally Come to an End?
A recent decision by the Swiss Federal Supreme Court gives reason to believe that the controversial Gini/Durlemann practice may finally be abandoned.
A potentially ground-breaking Federal Supreme Court ruling (Decision 4A_602/2017 of May 7, 2018) suggests that the notorious Gini/Durlemann practice may soon be abolished. If so, it would finally facilitate recourses for transport insurers in Switzerland; however, it remains too early to be certain if and when this will happen.
Switzerland is an exotic country when it comes to an insurer's recourse possibilities. Due to the ominous Gini/Durlemann practice applied by the Federal Supreme Court for more than 60 years, insurers may take recourse to the party that is liable under a contract only if the latter acted intentionally or with gross negligence. However, where a simple fault occurs (ie, a merely negligent breach of contract), the insurer is barred from recourse.
The Importance of Gini/Durlemann in Transport Law
Today, transport insurers are involved in almost every transport damage case. If a transport insurer pays damages by compensating an insured party, it can take recourse against the carrier only if it can establish gross negligence on the part of the carrier. Since the threshold for this is rather high and numerous questions of evidence can arise, many insurers waive recourse in Switzerland from the outset.
Abolishment of Gini/Durlemann Practice?
The Gini/Durlemann practice has not yet been abolished. In its current decision, the Federal Supreme Court allowed an insurer to take recourse against a party liable under a strict liability (ie, under tort rules but without fault). However, the court did not rule on whether this softening of the Gini/Durlemann practice also applies to parties liable under a contractual liability.
However, one point is encouraging: in justifying its change in practice, the Federal Supreme Court explicitly and decisively relied on the political intent to abolish the Gini/Durlemann practice and referred to the planned new art. 95c of the Insurance Contract Act. According to this new provision, insurers' recourse should be permitted against all liable parties (ie, explicitly against contractually liable parties as well). Since it was the explicit idea of the Federal Supreme Court to be guided by this planned revision, it may rightly be assumed that the court would come to the same conclusion if a recourse against a contractually liable party must be decided on. However, such a decision has not yet been published; therefore, for the time being, it seems likely that Gini/Durlemann will be abolished completely, but this has not yet taken place.
Summary and Significance for Transport Insurers
1) The Federal Supreme Court has indicated in a non-transport law decision that it could completely abolish the so-called Gini/Durlemann practice in the near future. However, there is no certainty in this regard until a respective judgement will have been passed.
2) If the Gini/Durlemann practice were abolished, this would mean that transport insurers would no longer be limited in Switzerland when it comes to recourses against carriers or freight forwarders causing the damage.
3) Switzerland would thus finally adapt to international standards on this point.
Contact: Stephan Erbe
December 19th, 2018 – Pitfalls of the Contractual Penalty
In the context of our consulting activities, we had to deal with a commercial law issue, which suggests that our clients should be informed about the advantages and disadvantages of the institute "contractual penalty".
The contractual penalty is in accordance with Art. 161 para. 1 CO due, "even if the creditor has not suffered any damage."
Accordingly, it is advisable to agree upon a contractual penalty, if the main obligation underlying the contractual relationship is not easily enforceable, e. g. in the case of obligations to refrain and in toleration obligations. This includes shareholder agreements and non-competition clauses. The contractual penalty can also be useful in cases where the proof of damage encounters difficulties or no damage in the legal sense can be proven.
If a contractual penalty has been agreed upon, it is the creditor's responsibility to furnish evidence of the legal basis, as a rule the non-fulfilment or improper fulfilment (i. e. late or bad performance) of the (primary) obligation agreed between the parties. The assertion of the contractual penalty as a "performance promise subject to a condition precedent" thus presupposes the occurrence (and proof) of the aforementioned condition.
The wording of the law does not, however, provide for the further precondition that the debtor must be at fault. In analogous application of Art. 97 ff. CO, this fault is presumed, so that it is incumbent on the debtor to furnish proof that he is not at fault for the default in performance.
According to Art. 163 para. 2 CO, the contractual penalty - subject to a different party agreement - cannot be claimed if the fulfilment of the main obligation has subsequently become impossible due to a circumstance for which the debtor is not responsible.
If the damage suffered by the creditor exceeds the amount of the contractual penalty, the creditor may demand this additional amount - subject to other agreements between the parties - only insofar as he can prove that the debtor is at fault (Art. 161 para. 2 CO).
The aforesaid rule of proof, deviating from the ordinary one applicable in contractual relationships as given by Art. 97 ff. CO, is difficult to explain and is sharply criticised in teaching. In some cases, the teaching proposes to reduce the requirements for proof of fault or to presume the ordinary allocation of the burden of proof applicable in contractual relationships (Art. 97 ff. CO) as tacitly agreed. We believe that there is no legal basis for the former, and we reject the latter as legally untenable.
We note from the information provided that the legal institution "contractual penalty", which can prima vista be attributed to the subject damage issue, has an important and underestimated relation to the subject culpability.
In our opinion, from a creditor's viewpoint, the following results from what has been said:
- The conclusion of a contractual penalty should be well considered even in cases, where evidence of damage could be difficult.
- In this context, great attention must be paid to the issue of fault and proof of fault.
- The legal provisions are not of a mandatory nature, therefore the clause on contractual penalty may and should be adapted to the given circumstances.
We will be happy to provide you with our know-how, preferably before concluding a contract with a contractual penalty.
Contact: Dr. Markus W. Stadlin
September 10th, 2018 – Job Registration Requirement as of 1 July 2018
Since 1 July 2018 a job registration requirement (implementation of Art. 121a BV, "Mass Immigration Initiative“) is in force in Switzerland.
The most important information at a glance:
Employers are obliged to notify the Regional Employment Agencies (RAV) of vacancies in professions/occupations with at least 8 percent unemployment rate in Switzerland (from 1 January 2020 the threshold will be lowered to 5 percent unemployment rate).
The professions concerned and the job titles assigned to them are published by the State Secretariat for Economic Affairs SECO in the "list of occupations".
Job vacancies are also subject to the registration requirement if recruitment is carried out through private employment agencies, headhunters or temporary employment agencies.
The RAV must inform employers within three working days of notification to the agency whether suitable dossiers have been reported by jobseekers. In order for the RAV to propose specific dossiers, the employer must submit a detailed profile of requirements.
The employers invite suitable jobseekers to an interview or aptitude assessment and inform the RAV whether they will be employed or not.
All registered positions are prohibited from publication (publication ban) for five working days; this five-day publication ban starts on the working day after the vacancy is published on the online job portal that can only be accessed by jobseekers registered with the RAV. The position may only be advertised publicly after this period has expired.
Exceptions - there is no registration requirement for:
- jobs within a company, an association of companies or a group that have been filled by internal staff employed there for at least six months; this also applies to apprentices who are employed after completing their apprenticeship;
- employment of persons connected with an authorised signatory in the company through marriage or registered partnership, or through blood or through marriage in a straight line up to the first degree of collateral line;
- employment lasting a maximum of 14 days;
- the employer himself finds and employs jobseekers registered with the RAV.
The cantons are responsible for monitoring compliance with the job registration requirement. Violations of the registration requirement must be reported to the criminal prosecution authorities by the cantonal implementing agencies in accordance with Art. 117a FNA and can be punished with a fine of up to CHF 40,000.
Contact: Dr. Karin Pfenninger-Hirschi
June 11th, 2018 – Application of American inheritance tax to estates of persons resident in Switzerland
The basic situation that triggers an American inheritance tax is the death of a US citizen. Inheritance tax is levied irrespective of the US citizen's place of residence at the time of his death and is exclusively linked to the deceased's nationality. If a US citizen residing in Switzerland dies, an American inheritance tax is due on his assets.
The estate of anAmerican cititzen abroad is taxed in the same way as that of a US citizen who lived in the USA.
The second issue that triggers an American inheritance tax, unlike situation 1, is not bound to the deceased's citizenship. The condition triggering an American inheritance tax, is the possession of so-called US situs assets. US situs assets are US real estate and US assets (including US securities from investment funds incorporated in the USA).
American inheritance tax law thus also covers estates of non-Americans resident in Switzerland whose estate contains assets qualifying as US situs assets.
What taxation options are available?
In the second situation described above, two alternative American taxation models are conceivable:
Firstly, the US Internal Revenue Service (IRS) grants an exemption limit of USD 60,000.-- on US situs assets. US situs assets with a value below the exemption limit therefore don’t have to be declared. However, if US situs assets with a value of more than USD 60,000.-- are part of the estate, all US situs assets must be declared to the IRS. The exemption limit is then deducted from the actual value of the US situs assets. The difference is taxed.
As an option, it is possible to make use of the (unfortunately very incomplete) provisions of the double taxation treaty between Switzerland and the USA in the area of estate inheritance tax (DTA) dating from 1951. Based on the DTA, the US grants a tax exemption corresponding to the ratio of the US situs assets as compared to the total estate, in relation to the (high) tax-free amount of currently USD 5'430'000.--. This means that in order to benefit from the tax exemption under the DTA, the Swiss heirs are obliged to disclose the entire worldwide estate to the IRS. Depending on the amount of the discount resulting from the US situs assets, this leads to a higher tax reduction compared to the first taxation method.
Total value of the estate:
Value of US situs assets:
Percentage share of US situs assets:
Pro rata tax allowance on US situs assets (10%):
Difference between US situs assets
(700'000.--) and actual tax-free amount (543'000.--):
The American inheritance tax is therefore only levied on an amount of USD 157,000.--. However, if the Swiss heirs choose the first taxable manner and do not disclose the entire worldwide estate, the IRS only grants an allowance of USD 60,000.--. The American inheritance tax would then be owed on an amount of USD 640,000.--.
April 24th, 2018 – Cross-border Inheritance Cases - Revision of the Private International Law Act
On 14 February 2018, the Federal Council invited comments from the interested parties and the public at large on the revision of the PILA in the field of inheritance law.
The Federal Council's action is welcome. Particularly in the area of international jurisdiction, the PILA has weaknesses that may be at least partially remedied with the revision.
In the field of cross-border inheritance law, a glance at the map is sufficient to recognize that Swiss citizens often have to face questions regarding the inheritance laws of EU member states. EU member states (with the exception of Denmark, Ireland and the United Kingdom) have enacted Regulation (EU) No. 650/2012 (EU Succession Regulation). The EU regulation on inheritance law provides rules for the harmonisation and thus a legally clear definition of jurisdiction in cross-border inheritance cases within the EU.
It is clear in inheritance cases with cross-border aspects that conflicts of jurisdiction and conflicting decisions regularly arise between the respective EU member state and Switzerland.
In Switzerland, jurisdiction and applicable law are governed by the PILA. The Federal Council is now using the unification of laws within the EU to adapt the PILA's rules on inheritance law to certain provisions of the EU Succession Regulation. From a Swiss view, it is now possible to create legal certainty in the area of international inheritance law by taking only one step, without the need to introduce individual regulations that are specifically tailored to the EU member states.
It aims to reduce conflicts of jurisdiction and conflicting decisions between EU member states and Switzerland and thus creates legal and planning certainty for Swiss citizens with regard to other EU countries - whether due to their last ordinary stay or assets located in the EU.
According to the Federal Council's invitation, a number of provisions of the PILA's 6th chapter will be amended. Their selection takes into account mandatory Swiss regulation, the need to update as well as the content of the corresponding solution of the EU Succession Regulation.
For Swiss citizens, this would have the following practical effects if the revised PILA came into force:
Foreign nationals residing in Switzerland may subject their property located in their home country or the entire estate to the jurisdiction and law of their home country.
This possibility also applies to Swiss citizens with habitual residence or domicile abroad.
The corresponding nationality only has to exist at the time of the choice of law. This also applies to wills. The subsequent loss of nationality does not harm the choice of law.
In summary, a targeted coordination of mutual competences is achieved by amending the rules of competence and recognition and by harmonizing the applicable law.
Finally, the revision also includes supplemental and clarification requirements that have accumulated since the PILA's entry into force in 1989.
March 1st, 2018 – Lower court advance payments planned
If going to court becomes unavoidable, for example for the execution of a division of an estate, the plaintiff must advance the expected court costs.
A conciliation procedure must take place before the actual court proceedings. These costs must also be advanced by the plaintiff. The fees for the conciliation procedure vary greatly from canton to canton: in the Canton of Basel-Landschaft (BL) they amount to a maximum of CHF 1,000, irrespective of the amount in dispute. In the Canton of Basel-Stadt (BS), the arbitration fee depends on the amount in dispute and amounts to a maximum of CHF 10,000.
As a rule, the costs of the actual legal proceedings are based on the amount in dispute. Pursuant to the applicable law, the plaintiff is obliged to advance the entire probable court fee when submitting the statement of claim. For an amount in dispute of CHF 500,000, for example, a court fee of CHF 20,000 is to be expected in the Cantons of BS and BL.
This legal situation is unsatisfactory and is criticised, especially since trial must not be allowed to degenerate into a privilege. At the federal level, efforts are now underway to facilitate access to the court; a motion to this effect was supported by parliamentarians from almost all parties.
According to the competent department, there is a revision plan, according to which the advance payment of court fees shall be limited to 50 percent of the presumed court costs. The situation of the party winning the case is also to be improved with regard to the collection risk in court costs. At present, the advance payment of costs remains with the court even if the plaintiff wins, especially as this finances the court costs; the successful plaintiff must demand the advance payment of costs from the opponent and thus bears the default risk.
These efforts and developments are to be welcomed, even though a solution to the central problem - the generally high process costs - has yet to be found.
January 26th, 2018 – Survey Reports: Expert Opinions Or Mere Allegations?
If a transport damage occurs during a transport, the commissioning of a loss adjuster with the assessment of the damage and a first survey forms part of a thorough claims handling process. The surveyors are usually mandated by insurance companies or claims handlers. In practice, it is almost unseen these days that transport damages are handled without a survey report.
In a case recently brought before the Commercial Court of the Canton of Aargau, one party argued that a survey report was nothing more than a mere party allegation, while the other party wanted the survey report to be admitted as an expert opinion and thus as formal evidence.
The Federal Supreme Court would now have had the opportunity to clarify this matter. Unfortunately, however, many questions remain unanswered. The Federal Supreme Court has ruled that a survey report is not an expert opinion within the meaning of Art. 183 ZPO. However, the Federal Supreme Court did not confirm that a survey report is indeed just an allegation raised by a party. The uncertainty regarding the nature of a survey report therefore remains, which is especially unsatisfactory given the central role of these reports in practice. Insurance companies and claims handlers would be well advised not to mandate survey reports unilaterally in the future. For the time being, it is rather recommended that all parties involved in a transport shall be invited to participate in one way or the other. As long as this general condition is fulfilled, it should also be possible in the future for courts to take appropriate account of such survey reports within their right of free assessment of evidence. Of course, it is always assumed that the quality of the report is adequate and that the report will stand up to closer scrutiny.
22. November 2017 – The EU Unitary Patent: A Thriller Without End?
When at the end of 2012, the European Union announced the successful conclusion of negotiations on the EU Unitary Patent, most observers expected that the first applications for these novel patents would be filed from around 2015 onwards. The EU Unitary Patent would have covered all participating EU Member States for a relatively attractive price. In addition, suits against infringers of such Unitary Patents could have been brought centrally in one single place, namely the newly established, decentralized Unified Patent Court with its Central Division located in Paris and a Court of Appeal in Luxembourg.
Since then, certain weaknesses of the legal construction of the EU patent system have shown themselves. The system consists of three pillars, two of which are directly applicable EU laws that regulate the substantive patent law of the EU. The third pillar forms the basis for the organization, jurisdiction and procedure of the Unified Patent Court. Since the EU is not competent in this area, an international treaty requiring ratification by the participating Member States had to be concluded. In order for this «Agreement on a Unified Patent Court» to enter into force, it must be ratified by at least thirteen participating EU Member States. Due to their importance in the patent sector, this figure must include Germany, France and the United Kingdom. The earliest possible entry into force was scheduled for 1 January 2014.
While a Preparatory Committee was rapidly set up to begin work on the court’s organization, the Brexit vote on 23 June 2016 put a first big question mark over the enterprise. After the vote, the British government has always stressed that the European Court of Justice’s («ECJ») jurisdiction for the United Kingdom would end. As the ECJ in the Unitary Patent System is the last instance to monitor the Unified Patent Court’s decisions, it was assued that the United Kingdom would not ratify the agreement. However, since the United Kingdom’s ratification is necessary for the agreement to enter into force, there was a tangible feeling of insecurity over the fate of the EU Patent System – until the British declared in November 2016 that they would ratifiy the agreement before leaving the EU. Even though it remains unclear how the Unitary Patent System, which is reserved for EU Member States, is supposed to function with a non-EU Member State that in addition refuses to recognise the decisions of the final review body, preparations continued. In January 2017, the Preparatory Committee announced that the Unified Patent Court could start work at the end of 2017.
Perhaps this declaration challenged fate, because in June 2017, it became known that a constitutional complaint, combined with a request for an interim injunction, had been filed with the German Constitutional Court against the German Parliament’s ratification law regarding the Unified Patent Court Agreement. The court then requested the German Federal President to suspend his signing of the law, because the constitutional appeal did not from the outset appear «devoid of any chance of success». It is not possible to predict with certainty how long this further delay will last, because the content of the constitutional complaint remains unknown. German patent lawyers speculate that it could concern judicial procedure issues in the Unitary Patent System, in particular the application phase before the European Patent Office. The only certain thing is that the Preparatory Committee’s optimistic announcement has become moot: In June 2017, without naming a timeframe – it announced that the Unified Patent Court would not start work in 2017.
In view of this to and fro, the interested spectator will hesitate to make a prognosis about further events. One thing appears certain however: Suspense is still guaranteed. We will be happy to keep you informed about further developments and to answer any questions you may have.
Daniel Plüss, LL.M.
Dr. Dr. Fabian Leimgruber, LL.M.
28. September 2017 – Commentary on the Basel City Tax Law
The commentary on the Tax Law of the Canton of Basel City, authored by Dr. Emanuel Grüninger and Dr. Walter Studer, dates back to 1970. Since then, no further publications similarly focusing on the Basel City Tax Law have taken place. This differs from the situation in other Cantons such as Aargovia, Berne oder Zurich.
In view of the economic importance of our Canton, a team of authors has decided to respond to this evident deficit. With the support of publishers Helbing Lichtenhahn and the collaboration of numerous authors, the up-to-date commentary on the Basel City Tax Law is to be published in mid-2018. The preparations are already well advanced. It is likely that a supplementary volume will be published if a revised or new version of the Swiss «Corporate Tax Reform III» is adopted.
In parallel to this project, a commentary on the Basel City «Real Estate Transfer Tax» («Handänderungssteuer») will be published. Among its authors are two members of ThomannFischer, Dr. Christian Hochstrasser and Dr. Markus W. Stadlin, the latter of whom is the Presiding Judge of the Basel City Tax Appeals Commission. The undertaking aims to complement the well known thesis of Dr. Christian Schöniger from 1992, which unfortunately is based on earlier legislation. The new commentary will provide comments on the legislation in force and the legal developments that have taken place since the mentioned thesis.
21. August 2017 – ThomannFischer’s new homepage
We are pleased to welcome you on ThomannFischer’s new homepage. The accessible and contemporarily designed web presence is now also accessible in high quality by tablets and smartphones. Important information such as fact sheets and access plans may be downladed and forwarded as PDFs. In the news column, we will regularly provide you with insights into developments and the latest news in the fields of law that we are active in. We hope you enjoy exploring our website!