No entitlement to insurance benefits under supplier credit insurance and no objections to reimbursement claim under fabrication credit insurance

Facts

Parties and participants:

The exporter (A. AG), a stock corporation with its registered office in Zurich, concluded an export transaction with the purchaser (Ministry of Transport and Communications of U.) for the supply and installation of a maritime and safety radio network as well as the operation of the telecommunications network for 15 years. At the same time, the exporter agreed with the financial institution (B. AG) a fabrication credit of up to USD 86 million to finance the export transaction. The Swiss Export Risk Insurance (SERV), a public-law institution of the Confederation, insured both the export transaction (supplier credit insurance) and the repayment of the fabrication credit by the exporter in favour of the financial institution (fabrication credit insurance).

Contractual basis:

On 10 April 2014, the exporter issued a authorisation and obligation declaration (EVE) to SERV, in which it undertook to reimburse all payments made by SERV to the financial institution under the fabrication credit insurance plus 5% interest and waived any objections and defences against this reimbursement obligation. The supplier credit insurance (policy VP 14-7071/4) and the fabrication credit insurance (policy VP 14-7073/5) were concluded on 11 April 2014. The exporter utilised the fabrication credit until December 2015 and fell into payment default towards the financial institution as of January 2017.

Claims asserted:

In July 2017, the exporter applied to SERV for compensation under the supplier credit insurance in the amount of USD 35.2 million, as the purchaser had not made the payments. SERV rejected the application in May 2018 due to lack of proof of the claim. The exporter then filed for debt enforcement and brought an action before the Federal Administrative Court (proceedings B-2722/2019) for payment of USD 117,508,177.38 under the supplier credit insurance. At the same time, SERV asserted a reimbursement claim against the exporter in the amount of USD 61,628,159.36 under the fabrication credit insurance after having compensated the financial institution. The exporter filed for debt enforcement and brought an action before the Federal Administrative Court (proceedings B-2576/2019) for dismissal of this claim. The Federal Administrative Court partially dismissed both actions in January 2023: the exporter’s action was dismissed in its entirety, while SERV’s action was partially allowed, in particular to the extent of USD 60,667,701.15.

Appeals to the Federal Supreme Court:

The exporter appealed against both judgments of the Federal Administrative Court to the Federal Supreme Court (procedure numbers 2C_160/2023 and 2C_162/2023). It requested the annulment of the judgments and the dismissal of SERV’s actions CO the conviction of SERV to pay the insurance benefits claimed. SERV requested the confirmation of the judgments of the Federal Administrative Court.

Considerations

Examination of the claim under the supplier credit insurance (procedure 2C_162/2023):

The Federal Supreme Court first examined whether the exporter was entitled to the insurance benefits under the supplier credit insurance. According to Art. 17 para. 1 SERIA, compensation requires that the existence, maturity and freedom from objections and defences of the insured claim are proven beyond doubt. The General Terms and Conditions for Supplier Credit Insurance (AGB-L) also require that the claim is legally valid, due and free from objections and defences (Art. 5.1.1 AGB-L).

The exporter based its claim on an acceptance certificate dated 3 July 2014, which, in the view of the Federal Supreme Court, was not sufficient to prove the existence of the claim beyond doubt. The lower court found that the exporter’s factual statements regarding the status of the export transaction were contradictory and that the claim had not been proven. Moreover, although legal recourse in U. was possible, it was not unreasonable, as the exporter did not present any concrete evidence of unreasonableness. SERV therefore rightly demanded judicial determination of the existence of the claim. Since the conditions for compensation were not met, the exporter was not entitled to the insurance benefits under the supplier credit insurance.

Examination of the reimbursement claim under the fabrication credit insurance (procedure 2C_160/2023):

The Federal Supreme Court then examined whether SERV was entitled to reimbursement of its insurance benefits under the fabrication credit insurance. According to Art. 21a para. 2 SERIA, the exporter is obliged to reimburse all payments made by SERV to the financial institution under the fabrication credit insurance plus interest and costs. This statutory provision is confirmed by the EVE of 10 April 2014, in which the exporter waived any objections and defences against the reimbursement obligation (Art. 2.6 EVE).

The exporter attempted to raise the set-off defence (Art. 120 CO) and the defence of the fiction of…