Companies are often interested in an exchange of views with experts in their field of activity. A advisory agreement deals with the rights and obligations of both parties, for example. B the expert`s remuneration. Swiss bond law provides for the possibility of terminating the mandate at any time (Article 404, paragraph 1, CO). This provision is mandatory, which excludes any other party agreement (for example. B, the fixed duration of a consulting contract). In 2019, Parliament rejected a proposal to reform this controversial legislation (Motion Barthassat). Despite this unfavourable legal situation for a consultant, there are different approaches to protect against dismissal or, at the very least, the resulting financial loss. In the event of termination at an adverse time, which is liable for compensation (Article 404, paragraph 2, CO). However, in most cases, no compensation can be claimed for loss of profit. In addition, there are several cantonal judgments that have allowed, to some extent, penalties or lump sum damages in connection with the termination of a mandate contract.

However, the applicability of such clauses is highly controversial in the case law. Under Swiss law, a mandate contract can be terminated at any time. The corresponding legal provision is mandatory, which means that the validity of a warrant (for example. B the consulting contract) is negligible. However, in the case of cross-border contracts, it is possible to circumvent this problem by subjecting the termination of the contract and its consequences to another law. In this context, we are talking about a partial choice of the law. This possibility can even be extended to purely national contracts by incorporating an arbitration agreement. This allows an advisor to ensure the long-term nature of his or her mandate by developing his contract with foresight and diligence.

In doing so, it must use the opportunities offered by private international law and arbitration. The solution for this only negative aspect of Swiss law for an adviser may be a so-called partial choice of law. In the case of a partial choice of law, some or more parts of a contract are subject to another legal order. For example, the contract is generally governed by Swiss law, but an exception is made for termination and its consequences, which are governed by the law of England and Wales (which gives the parties greater freedom in determining the termination of a consulting contract). An additional guarantee can be obtained through the inclusion of an arbitration agreement. In arbitration proceedings, the choice of party law is more liberal than in state court proceedings. This is reflected in the admissibility of non-governmental legislation, for example. B principles of UNIDROIT. Counselling is often considered a private activity. It is therefore important to comply with the provisions of the staff statutes in order to avoid any conflict of interest between your duties as a university employee on the one hand, and the advisors on the other. The board should be limited to the company`s ideas. If additional research work is required from the advisor, a research agreement must be concluded between the university and the industrial partner.

Under a private advisory agreement, no university or personal infrastructure can be used. In addition, it should be noted that inventions made in the field of research of the researcher belong to the university and cannot be attributed to the company under a privy council agreement. Finally, the inclusion of an arbitration agreement also offers the possibility of including a choice clause of the law in a purely national contract, since the choice of law is also treated more liberally in internal arbitration proceedings than in state court proceedings (art.