Switzerland
- In Switzerland, the legal framework for commercial agency is primarily set out in statutory law. The main legal basis is the Swiss Code of Obligations (“CO”), in particular Articles 418a to 418v CO, which include specific rules on the agency contract (“Agenturvertrag”).In addition, the CO provides for supplementary application of other contractual regimes: the provisions governing brokerage contracts (“Mäklervertrag”) apply to agents acting as intermediaries, while those governing commission contracts (“Kommissionsvertrag”) apply to agents acting as proxies (Art. 418b CO).
- In Switzerland, there are generally no specific collective agreements applicable to commercial agents. Commercial agency relationships are primarily governed by the Swiss Code of Obligations and the individual agency contract. Employment-style collective labor agreements typically do not cover commercial agents, as they are considered independent contractors rather than employees. Therefore, the terms of their contracts are mostly individually negotiated.
- Upon termination of the agency agreement, all claims of the commercial agent for commission or reimbursement generally become due (Art. 418t para. 2 CO). As a rule, no further claims arise after termination, unless it has been agreed in writing by the parties, or is customary practice, that the commission shall become due at a later date (in particular for transactions that are to be performed wholly or partly after the termination of the agency relationship) (Art. 418t para. 1 CO).In addition, the agent may be entitled to an end-of-contract compensation under the following conditions: (i) the agent has significantly expanded the principal’s customer base; and (ii) the principal or its legal successor continues to derive substantial benefits from business relations with such customers after termination of the agency agreement (Art. 418u para. 1 CO). Such compensation will be determined on a case-by-case basis, but is capped at a maximum amount of one year’s net earnings from the contractual relationship, calculated on the basis of the average over the last five years or, if the relationship lasted for a shorter period, over the entire duration of the contract (Art. 418u para. 2 CO). No such compensation is payable if the agency agreement was terminated for a reason attributable to the agent.
- Under Swiss law, a commercial agent is not required to notify the principal within a specific period after the termination of the agency agreement that they intend to assert their claim. The claim is subject to the general statutes of limitation rules. Usually, a ten-year statute of limitation pursuant to Art. 127 CO applies. However, in practice, claims should be pursued as soon as reasonably practical, as delays may complicate the presentation of evidence.
- Jürg Bühlmann (j.buehlmann@bkp-legal.ch), Dr. Daniela Koenig (d.koenig@bkp-legal.ch) and Carolina Bergamin (c.bergamin@bkp-legal.ch)
