Publications

Hardly a day goes by without news stories on cyber attacks. Under the revised Data Protection Act, such security incidents must now be reported to the Federal Data Protection and Information Commissioner. In our newsletter, we explain how companies can prepare for such an incident and what should be done in such an event. We do not only focus on purely legal topics, but also highlight practical considerations and the importance of communication in such a case.

Companies must take appropriate measures to ensure adequate data security. These measures also relate to the handling of IT devices by employees. The relevant requirements are usually set out in IT regulations that are binding for employees. In the article, we describe the usual content of such IT regulations. 

On 1 January 2023, the first stage of the revision of the law of succession came into force. Testators may now freely dispose of a larger part of their estate than prior to the revision. This increase in freedom of disposal is achieved by reducing the statutory entitlements. Various open questions are clarified, which are outlined below.In addition, there is an outlook on possible changes that the Federal Council is proposing as a possible second stage. The aim is to facilitate company succession for family businesses or their ownership.

Measures of public spatial planning often create considerable added values for private landowners. Historically, the main reason for such added values was the designation of agricultural estates as building land. Today, predominantly due to densification efforts, improved utilisation rates within existing building zones caused by planning measures are becoming increasingly relevant. Since the recent creation of the legal basis and given that a lot of money is often at stake, we expect rich case law on this topic to develop in the coming years. This article - with an emphasis on the Canton of Zurich - is intended to provide landowners with an initial overview.

A comprehensive revision of Swiss corporate law will come into force on January 1, 2023. The flexible share capital requirements, the improved corporate governance and enhanced shareholders' rights, as well as the alignment between corporate and accounting law will be particularly relevant in practice. For many Swiss corporations and limited liability companies, the revision could prompt a review of their current articles of association and bylaws as well as an update to established corporate housekeeping processes. In addition, directors and officers should familiarize themselves with their restated duties, especially in case of financial distress. With this focus, we highlight some of the most notable changes.

The Federal Supreme Court upholds the ruling of the Commercial Court of St. Gallen, according to which statements on the ticket brokerage platform as well as the ordering process of Viagogo violate the unfair competition act. The ruling was preceded by a lawsuit filed by Circus Knie.

The purpose of substitute performance under a contract for work is to facilitate the enforcement of justified claims by the customer against the contractor who does not fulfil his contractual obligations. A judicial clarification of the legal situation before the substitute performance is carried out often fails due to the high time requirement. Reclaiming the costs caused by a substitute performance is often associated with high risks. Contractors, on the other hand, are sometimes confronted with claims in this context for which the requirements were not met.

Switzerland will soon introduce a new, revised Data Protection Act (DPA). For companies that have not yet gone through a compliance programme regarding the European General Data Protection Regulation (GDPR), the revision requires an expansion of their governance. In addition, all companies should review their privacy policies. At the end of this article, we provide a checklist of measures to be taken with regard to the revision. The violation of some provisions of the DPA may result in fines for the persons acting.

If the written form is required or agreed for the conclusion of a contract, a handwritten signature is required. A qualified electronic signature is equivalent to this. If a contract is not bound to the written form, providers of simple electronic signatures can also be a valid alternative. In our article, we show what needs to be considered when using qualified electronic signatures and signature services and when it makes sense to use them.

The use of social media is becoming increasingly important in the world of work, be it for recruiting, networking or marketing. However, there is a risk that excessive use may turn out to be a time waster or become a networking burden. In addition, risks in terms of confidentiality, security and reputation must be kept in mind. Apart from this, there are labor and data protection regulations that must be observed, which the article provides an overview of.

In Swiss contract law, the principle of freedom of form applies: contracts only require a special form if the law prescribes it - as in the case of the purchase of real estate. This article provides an overview of the notarisation system in Switzerland.

Video surveillance, GPS tracking and other technical tools offer numerous opportunities to control and monitor employees. However, there are labor and data protection regulations that must be observed. The article provides an overview of the legal basis and uses two case studies to show which regulations must be observed.

Companies are punished by the Swiss Competition Commission (Comco) with heavy fines for agreements restricting competition. It is generally known that price agreements and the prevention of parallel imports are illegal. But what does this mean in concrete terms and what applies with regard to price recommendations, exclusivities or non-compete obligations? This article provides an overview of the most important rules.

Anyone who wants to know the legal situation of a property should not only take a look at the land register, but also at the cadastre of public-law restrictions on property (in short: ÖREB-Kataster). The former refers to a specific property, the latter to a specific area. This publication deals with the two registers.

The publication discusses the admissibility of witness certificates for the assertion of objections in the proceedings relating to the provisional lifting of the objection against the writ of payment (provisorsiche Rechtsöffnung).

In the case of the sale of a building lease (Baurecht) in the canton of Valais, the Federal Supreme Court had to assess to whom the land was to be allocated, given that two entitled parties exercised the statutory right of first refusal. In its May 2020 decision, the court stated that the beneficiary must be registered in the land register at the time of the sale. This article deals with this decision.

The pledging of a property as a security for a loan is called a mortgage. The mortgage is secured by a lien registered in the land register. The two types of mortgages available – Grundpfandverschreibung and Schuldbrief – are discussed in this article.

Aside from a few exceptions, bearer shares will be disposed of as of 30 April 2021. Affected companies and shareholders must therefore convert their bearer shares into registered shares in timely manner. In addition, the provisions in connection with the obligation to notify the beneficial owners of shares will be considerably aggravated.

The extent of the consequences of SARS-CoV-2 or COVID-19 is still uncertain. What is certain is that the Swiss construction industry will also be affected. This newsletter provides initial indications on selected aspects with regard to expected delays.

The SIK general terms and conditions are balanced general contractual conditions for the procurement of IT services, which are used as standard in public procurements. They are generally also acceptable to suppliers. Thanks to the revised version 2020, they are now also suitable for the procurement of cloud services.

This publication concerns comments to the aforesaid topic with regard to machines, electrical equipment, structural fire protection and other products.

If a tenant does not voluntarily leave residential or commercial premises at the end of the lease, the landlord can enforce the move-out with the so-called eviction order. However, there are various pitfalls for a landlord, in particular the choice of the type of procedure (ordinary or summary procedure).

This article concerns the secondment of employees from abroad to Switzerland. In this context, the requirements for a cross-border secondment, the legal bases, questions about jurisdiction and the applicable law as well as the legal prerequisites for the admission to the Swiss job market are explained. Furthermore, certain risks regarding social insurance law and tax law are pointed out.

Monetary claims are enforced through debt enforcement proceedings (Schuldbetreibung). Such proceedings are registered in the debt enforcement register. The inspection of the debt enforcement register (Betreibungsauskunft) is an important source to assess the credit worthiness of the debtor. Since 1 January 2019, debtors can easily request the deletion of registrations in the debt enforcement register. This epartners focus reviews this change of the respective act.

The secondment of employees from abroad to Switzerland is of great importance, especially in the service sector – in particular in the IT industry – or, for example, in the context of services relating to assembly. Moreover, cross-border secondments are common within groups of companies. In this context, there are various legal aspects which should be considered at an early stage.

Succession planning is one of the most important strategic tasks of sustainable corporate governance. It is essential to find a succession plan which suits best the requirements of existing and new owners as well as of the company. In addition, it should be noted that personal motives also play an important role besides economic and legal considerations.

In the context of a company purchase, the seller is required to warrant that he is the shareholder. For that purpose, he requires a properly maintained share register, including the underlying documentation (copies of shares, declarations of assignment etc.). In practice, the share register is often incomplete, which can lead to unnecessary uncertainty during negotiations. Therefore, it can be worthwhile to "reorganize" the shareholder register at the right time and keep it up to date.

The Civil Procedure Code stipulates that the defendant may, under certain circumstances, file an answer to a complaint with a thematically limited content. This publication analyzes whether such filing requires a preceding order by the court.

The Swiss Federal Court has confirmed the prohibition of sales for certain types of rapid change devices for excavators which did not comply with the safety requirements of the EU Machine Directive 2006/42/EC. The courts reminded of the elementary principles of the Directive with respect to the integration of health and safety in mechanical engineering. Technical standards do not relieve from assessing the specific risks and implement the necessary measures in the design of the machine.

Nowadays IT is often purchased as a service and not anymore as a physical infrastructure. This fact sheet adresses some important drafting issues for the drafting of IT service agreements.

Commentary relating to art. 31 and art. 33a of the Swiss Debt Enforcement and Bankruptcy Law in the newly published Kommentar zum Bundesgesetz über Schuldbetreibung und Konkurs SchKG (4th edition based on the 3rd edition by Carl Jeager published in 1911).

Commentary relating to art. 30a-37 and art. 144-150 of the Swiss Debt Enforcement and Bankruptcy Law in the newly published Kommentar zum Bundesgesetz über Schuldbetreibung und Konkurs SchKG (4th edition based on the 3rd edition by Carl Jeager published in 1911).

Objects of purchase and works are often defective or otherwise insufficient. Therefore Swiss law provides warranty for sellers or contractors respectively. However, certain requirements must be fulfilled and rules respected in order for the buyer or customer to be successful in enforcing a claim for remedy of such defects.

In civil proceedings, the claimant is regularly confronted with the fact that the respondent makes new statements in his written rejoinder. This article pertains to how and when such new statements can be validly contested in civil proceedings.

Contracts are binding and have to be adhered to. Swiss law however offers certain possibilities to dissolve contractual relationships. Breaches committed by the contract partner, errors and extraordinary circumstances may justify an exit. However this is not equally applicable to all contracts and all parties.

In civil proceedings, the plaintiff may under certain conditions be ordered to provide collateral for the respondent's potential claim for compensation for lawyer's fees. Such order requires the existence of statutory reason. This article pertains to whether a party or the court is responsible for the collection of the facts potentially leading to such order and the allocation of the burden of proof with respect to the existence of such statutory reason.

Through the usage of IT systems compliant with auditing requirements, digital business records can be stored digitally in accordance with statutory law.  The process of scanning written documents lowers, however, their evidentiary value. Therefore, it is recommended to continue to physically store important documents in their original form.

Civil litigation requires thorough information on corresponding costs. Litigation is time-consuming and expensive.

As from 1 July 2015, share corporations, limited liability companies and their shareholders are subject to additional transparency regulation. This holds especially true for bearer shares. Noncompliance with this new regulation can lead to severe consequences.

The publication concerns the question whether debt collection notices may be deleted from the register of debt collection through precautionary measures. The publication raises this question in particular in the context of the general action for a negative declaratory judgment.

Employment agreements often contain unclear regulation regarding overtime work. This leads frequently to court cases. An employer, however, can avoid such surprises by respecting a few points.

The disruption of the execution of a project often generates significant additional costs, irrespective of the field of activity. Disputes arising therefrom can be averted through a clear attribution of risks in the project agreement.

The term "compliance" is used for the duty of companies to adhere to the law. Compliance breaches can have grave consequences for corporations as well as the responsible managers. While having a system in place to ensure compliance is normal for big, listed companies, small and medium enterprises have not (yet) given the topic the attention it deserves.

The publication outlines and criticizes the rule included in article 8a para. 3 subparagraph c DEBA concerning the deletion of the debt collection notice in the register of debt collection after the withdrawal of the debt enforcement petition.  

General terms and conditions (GT&C) are widely used. Swiss law recognizes GT&C (nearly) as a fully-fledged contractual agreement if they are correctly included into the contract. This epartners Focus shows the trouble that can arise if GT&C are used incorrectly.

In Switzerland, debt enforcement proceedings can be initiated by and against anyone. The debtor may stop the proceedings by way of an objection. This does however not preclude the proceeding form being listed and visible in the debt enforcement register. In order to get such listing removed, debtors have to initiate an action for a declaratory judgment, the requirements for which were very high - until now.

The high exchange rate of the Swiss Franc weakens the competitive position of the Swiss economy. Various remedies have been discussed, both with respect to economic policy as well as on the corporate level. Our newsletter provides an overview over the possible remedies and a legal analysis thereof. 

Swiss law prohibits employees from waiving certain rights during and within one month after the end of an employment relationship. The article discusses the consequences for employers.

According to Art. 404 Abs. 1 of the Swiss Code of Obligations service agreements can be terminated at any time. This is mandatory law. For long term service agreements such as outsourcing agreements such a termination clause is not appropriate. Such agreements should describe the termination as precisely as possible.

Insolvency law stipulated certain preferences for unpaid valued added taxes up until 1 January 2014. This paper concerns the question, until when this preference continues to exist.

Certain acts which a person performs prior to debt enforcement proceedings may be challenged legally afterwards in such proceedings. This thesis covers this so-called «avoidance» with respect to the repayment and collateralization of loans.

The paper treats the transitory provisions of the new accounting laws which came into force in January 2013 (the paper was written together with Prof. Dr. Lukas Glanzmann).

The paper covers and criticizes the intended (but not yet implemented) exclusion of the right to inspection of the register of debt collection.

Christoph Isler presents a decision of the administrative court of Zurich about a rechargeable battery of a model aircraft that caused a fire. The court decision indirectly highlights the significance of warnings and instructions in the assessment and management of risks in machinery construction.

The new Swiss product safety law poses new challanges to plant operators, in particular power production companies. Machines designed in-house must now meet the same requirements as products from professional manufacturers in every respect. The same applies to safety-related modifications and maintenance work.

Intracompany loan agreements are mesured against the at-arms-length principle. A negligent board member is personally liable for the loss resuling from a default.

The article presents an overview in respect of the legal questions that arise in connection with the virtual currency "Bitcoin".

The article gives an overview over the application procedure and the legal risks associated with the advent of new generic top level domains 2012/2013. (The article is written in German.)  

 The Swiss federal Court of Administration has decided a case in favour of the producer, whose machine was qualified as unsafe. Christoph Isler illustrates the relevancy of harmonized technical standards and describes the rules of the Swiss law of Product Safety concerning the handling of such conflicts. It seems worthwile to question the legitimacy of the authority's actions from time to time.

The January 2012 epartners IT-Newsletter gives an overview over the application procedure with respect to new generic top-level domains (gTLDs) and set out what risks the advent of new gTLDs poses for the owners of trademarks and other rights.

During election campaigns, unwanted SMS with political content are occasionally used for the purposes of the campaign. The paper covers the admissibility of such SMS from the perspective of fair trading, penal and data protection laws.

The amendment of the Swiss Civil Code in December 2009 also concerned the trademan's and building contractor's charge. This newsletter provides an overview of the most important changes which have come into effect on 1 January 2012. (The newsletter is written in German.)

The article gives an overview over the application procedure and the legal risks associated with the advent of new generic top level domains 2012/2013. (The article is written in German.)

Swiss copyright only protects the code of software but not the underlying logic. The paper illustrates this with reference to a leading case.

The preconditions to a successful plant construction project include well-planned assembly and installation cycles as well as a planned commissioning. The newsletter discusses the obligations of the purchaser and the relevant rights of the contractor. (The newsletter is written in German.)

Contractors often wish to stop the execution of their work if the developer is in default with payments or challenges changes in pricing due to changes in the scope of the work undertaken by the contractor. This newsletter outlines the risks which should be considered by the contractor, as well as the conditions which need to be statisfied in order that the contractor is not held liable for a wrongful suspension of the execution of the work. (The newsletter is written in German.)

Using a decision of the Swiss Federal Supreme Court as the backdrop, the article analyses the statutory liability of IT suppliers and explains why and in what way the business model of an IT supplier should be taken into account when drafting liability clauses for IT agreements. (The newsletter is written in German.)

The article deals with the validity and enforceability under Swiss law of jurisdiction clauses that are made a part of a contractual agreement through their inclusion in general terms and conditions that are included via a checkbox in a web checkout process. The article discusses a recent judgment of an appellate court in which it was held that such jurisdiction clauses are not enforceable. (The article is written in German.)

Guarantees from banks or insurance companies are a common tool used to control project and counterparty risks. The security of the purchaser comes at the price of the limitation of the supplier's freedom to act. The newsletter pleads for moderate requirements as to the kind, amount and temporal validity of such guarantees. Furthermore, the newsletter addresses the most critical requirements as to the form of such guarantees. (The newsletter is written in German.)

This article deals with a recent judgement of the Swiss Federal Court, in which the Swiss Federal Court considers the question of what the purchaser's obligations are in relation to a software implementation project. (The article is written in German)

The new Federal Act of Product Safety brings changes for the construction industry with respect to the procurement and operation of the construction site inventory. The publication reveals the most important principles and innovations, and provides advice on dealings in practice. (The article is written in German)

Contracts for services often contain advance notification obligations, which, if not complied with by the supplier, trigger a release of the purchaser from its obligation to pay additional charges for supplier's additional activities. However, if such conditions are not met, this does not automatically lead to the loss of the supplier's claim for remuneration. (The article is written in German.)

The booklet covers the most important points that a plant constructor needs to take into consideration when concluding national and international contracts. It is helpful to differentiate between important and unimportant aspects, to manage contract risks, and to encourage the client to understand the position of the plant engineer. (The booklet is written in German)

Certain acts which a person performs while over-indebted may be challenged legally afterwards in said person’s bankruptcy. This paper covers this so-called «avoidance in case of over-indebtedness» from the perspective of the economic analysis of law.