Facts
Bank [A. AG] (the appellant) and [B. AG] (the respondent) had taken out a "Combined Professional Liability, Fidelity and Computer Crime Insurance" from February 1, 2007 to January 31, 2011. The appellant asserted claims against the respondent under this insurance after it had been sued by investors in Dubai and ordered to pay damages for violating the local financial services law there.
The lower court, the Commercial Court of the Canton of Zurich, dismissed the appellant's claim and ordered it to reimburse the respondent a provisional payment of 5 million Swiss francs plus interest. It found that various coverage requirements were not met and affirmed several coverage exclusions.
Considerations
The Federal Supreme Court largely confirmed the lower court's interpretation. It held that the appellant could not demonstrate that the claims it was obligated to pay were comparable to Swiss statutory liability provisions. The appellant's payment obligation exceeded the actual damage incurred and had a partly punitive character, which was not covered by the insurance policy.
However, the Federal Supreme Court left open whether the appellant could have defended itself by arguing that…