Swiss NDA Review
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Non-disclosure agreements (NDAs) — also called Geheimhaltungsvereinbarungen or accords de confidentialité — are common in Swiss business. They can be standalone agreements or clauses embedded in employment or service contracts. While Swiss law does not have a specific NDA statute, several provisions of the Code of Obligations apply.
For employees, OR Art. 321a establishes a general duty of loyalty and confidentiality during the employment relationship. After termination, the duty is limited to genuine trade secrets. For business-to-business NDAs, the parties have broad contractual freedom, but the terms must still be reasonable and enforceable.
Key elements to review in any Swiss NDA include: the definition of confidential information (is it overly broad?), the duration of the confidentiality obligation (unlimited NDAs are problematic), the carve-outs for publicly available information and information the recipient already possessed, the penalties for breach (are they proportionate?), and whether the NDA applies to the receiving party's employees and subcontractors.
Swiss courts can reduce disproportionate contractual penalties under OR Art. 163. An NDA that restricts common knowledge or imposes unlimited obligations may be partially or fully void under general contract law principles.
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Common Red Flags in NDAs
- Unlimited duration — a confidentiality obligation should have a reasonable time limit (typically 2–5 years after the end of the business relationship)
- Overly broad definition of confidential information — if "everything discussed" is confidential, the clause may be unenforceable
- Disproportionate penalty clauses — Swiss courts can reduce excessive penalties under OR Art. 163
- No carve-outs for publicly available information, independently developed knowledge, or information received from third parties
Key Swiss Laws
- OR Art. 321a — Employee duty of loyalty and confidentiality
- OR Art. 163 — Judicial reduction of contractual penalties
- OR Art. 398 — Duty of care and confidentiality in mandates
- UWG Art. 6 — Unfair Competition Act: protection of trade secrets
- StGB Art. 162 — Criminal penalty for violation of trade secrets
Frequently Asked Questions
Can an NDA last forever under Swiss law?
While there is no explicit prohibition, Swiss courts generally consider unlimited NDAs as disproportionate. A reasonable duration is typically 2 to 5 years after the end of the business relationship. For genuine trade secrets, longer periods may be justified.
What happens if the penalty clause is too high?
Under OR Art. 163, Swiss courts have the power to reduce contractual penalties they deem excessive. If your NDA includes a disproportionate penalty (e.g. CHF 1 million for a minor infringement), a court will likely reduce it to a reasonable amount.
Do I need a separate NDA if I have an employment contract?
Not necessarily. OR Art. 321a already imposes a confidentiality obligation on employees during the employment relationship. However, a separate NDA can clarify the scope, extend the duty post-employment for genuine trade secrets, and define penalties for breach.