61340 Vorabseiten_e - Unabhängige Expertenkommission Schweiz

Judges at that time also had problems with the fact that insurance claims were
difficult to classify. There was already a dispute over the question of where such
a claim was located – in Germany or in Switzerland (the «Question of the lex
rei sitae»). The answer would be decisive for the conduct of the proceedings
since if the Nazi state had appropriated assets which did not fall within its
domain this would mean that Swiss insurers had made payments to a third
party who was not entitled to them, and would now have to pay the Plaintiff
policyholder. The Zurich Upper Court assumed that the claim was located at
the company’s main head office since the branch had issued the policies «in the
name and for the account of, the principal office». The Federal Supreme Court
on the other hand thought the deciding factor was the question of which supervisory
authority oversaw the branch, and found it «reasonable to accept that
the same state should see the claims concerned as falling within its domain,
regardless of where the creditors live». 97 This position, which assumes that the
Third Reich only confiscated assets within its own domain, now is criticised
by lawyers today. Frank Vischer, for example, sees it as «capitulation to the
effectively asserted foreign claim to power». 98 Lawyers (then and now) have also
criticised the Swiss Federal Supreme Court’s view that given the German
confiscation did indeed go against Swiss ordre public, it was nonetheless
inadvisable to «ignore the intervention which has taken place [in other words
the confiscation]», because to do so would create an injustice by making the
insurance company liable to make a further payment. 99 This has since also been
the gist of decisions by the German Federal Supreme Court and the Supreme
Court of New York, whilst courts in Belgium (and Luxembourg) and the
Ministry of Justice in the Netherlands obliged the Swiss insurance companies
to pay out the policy anew.
In the face of judgements which largely went against them, the insured who had
been deprived of their rights had to resort to seeking «reparations» in Germany.
The West German legislation, based on US Military Government Law No. 59,
provided for the reimbursement of «establishable» assets, but did not define
exactly what this meant. The courts therefore placed insurance claims in
different categories. It was not until the Federal Restitution Law of 1957 that
insurance assets were clearly defined as refundable. Alongside the claim for
reimbursement, it was also possible to claim compensation from the state. As
long as insurance claims were not infrequently categorised as not «refundable»,
victims were granted, at most, modest personal benefits under the compensation
process. Reparations were handled differently in the states which had
formerly been under German domination. Whilst in Austria for instance, the
practice was more restrictive than in Germany (among other things because
liability was shifted to the predominantly German parent companies/head
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