Businesses

Employment law

In employment law, the only reliable route is an arbitration agreement concluded more than one month after the end of the employment relationship. After that period, the claims are no longer mandatory and become fully arbitrable.

Good to know. CAUTION, MANDATORY LIMIT. An arbitration clause inserted in the employment contract is ineffective for the employee's protected claims. Under art. 341 para. 1 CO, the employee cannot waive, during the contract and during the month following its end, claims arising from mandatory provisions. The only reliable route is an arbitration agreement concluded more than one month after the end of the employment relationship.

What you can submit

After the one-month period: salary and overtime, holidays and public holidays.
Indemnity for wrongful dismissal (art. 336 CO) or unjustified immediate dismissal (art. 337c CO), severance pay.
Employment reference, non-competition clause and its consideration, final settlement.

What remains reserved

Timing: before the month has elapsed, mandatory claims are not arbitrable. The agreement must be dated and concluded after that period.
No circumvention through international arbitration for a purely Swiss employment relationship.
Social insurance, occupational pensions (LPP), equality (LEg): these disputes fall within particular state competences and are excluded from arbitration.
Form: a written agreement, signed or accepted by means allowing it to be evidenced by a text, satisfies art. 358 CPC.

The clause

Ready to insert into your contracts. Copy it, or generate a personalised version.

Translation for information; for a Swiss-law contract the French version is recommended.

Post-employment arbitration agreement (valid route, to be concluded more than one month after the end of the relationship)

Arbitration agreement 1. [Employer] and [Employee], whose employment relationship ended on [date], agree to submit any dispute arising out of or in connection with that employment relationship, in particular claims for salary, overtime, holidays, end-of-contract indemnities, wrongful or immediate dismissal, employment certificate and prohibition of competition, to a final arbitration administered by CONCORDA (www.concorda.ch), to the exclusion of the ordinary state courts. 2. The arbitration is conducted in accordance with the CONCORDA Arbitration Rules in force at the time proceedings are commenced, which form an integral part of this agreement. The parties expressly exclude the application of Chapter 12 of the Federal Act on Private International Law (PILA), in accordance with article 176 paragraph 2 thereof, and submit the proceedings exclusively to Swiss domestic arbitration (art. 353 et seq. CPC). The arbitral tribunal is composed of a sole arbitrator. The seat of the arbitration is at Monthey. The language of the proceedings is French. The award is final and constitutes an enforceable title (art. 387 CPC), the remedies before the Federal Supreme Court remaining reserved (art. 389 et seq. CPC). 3. The parties confirm that this agreement is concluded more than one month after the end of the employment relationship (art. 341 para. 1 CO).

See the other variants (2)

Clause directing towards Concorda (to be inserted in the employment contract)

Article [X] - Dispute resolution In the event of a dispute arising out of this employment relationship, the parties agree to favour a resolution through the online arbitration of CONCORDA. To this end, they undertake to conclude, after the end of the employment relationship and the expiry of the one-month period provided for in art. 341 para. 1 CO, an arbitration agreement submitting their dispute to the CONCORDA Arbitration Rules, by a sole arbitrator, seat at Monthey, French language. This article does not yet constitute an arbitration agreement for the claims referred to in art. 341 para. 1 CO; it expresses the parties' commitment to have recourse to it in due course.

Short clause (post-employment agreement)

[Employer] and [Employee], whose employment relationship ended on [date], submit any dispute arising from that relationship to a final arbitration in accordance with the CONCORDA Arbitration Rules, by a sole arbitrator, seat at Monthey, language French, to the exclusion of the state courts. They confirm that they conclude this agreement more than one month after the end of the employment relationship (art. 341 para. 1 CO). Chapter 12 of the PILA is excluded (art. 176 para. 2 PILA).

The models are shown without a penalty clause. You can add it in the generator by ticking the box provided.

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Related fields

Mandate and services

Mandate and services disputes are of a financial nature and freely disposable, and are therefore arbitrable. Revocation at any time (art. 404 CO) is mandatory but does not preclude arbitration: the Federal Supreme Court has so held.

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Business partners and companies

Since 1 January 2023, art. 697n CO expressly recognises the statutory arbitration clause. The company, its bodies, the members of its bodies and the shareholders may be bound by the arbitration clause.

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Trade and distribution

Commercial disputes between businesses are of a financial nature and freely disposable, and are therefore fully arbitrable. Even mandatory claims, such as the agent's goodwill indemnity (art. 418u CO), are arbitrable: the Federal Supreme Court has confirmed this.

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