Swiss companies increasingly contract in English. The counterparty is foreign, the template came from a US playbook, the deal team works in English anyway — so the contract is drafted, negotiated and signed in English. Then, years later, a dispute lands before a Swiss court, and the proceedings run in the official language of the canton. The contract you signed in English becomes a contract you fight about in German, or French, or Italian.

None of this is a problem if it was chosen. It becomes expensive when it happens by default — because the language clause, the governing-law clause and the forum clause sat in the "miscellaneous" section that nobody read after the first draft.

Three clauses, one system

Language, governing law and forum are usually negotiated separately, if at all. They work as one system. The governing law decides which rules apply to your contract. The forum decides which court or tribunal applies them — and, in state courts, in which language and with which procedural habits. The contract language decides what the decisive text actually says, and what must be translated for the court to read it.

Misalignment between the three is where the friction lives. An English-language contract under Swiss law before a Swiss state court is a workable, common combination — but it means translation. An English contract under a foreign law before that foreign court means your Swiss company litigates away from home, under rules its own counsel may not practice. Each combination is legitimate; each has a price someone should have calculated at signing.

Translation risk is real, and it cuts both ways

When an English contract ends up before a court that works in German or French, the parties typically submit translations of the key provisions — and translations can be disputed like anything else. Nuances that carried weight in the drafting ("best efforts" against "reasonable efforts", "material" against "substantial") may have no exact equivalent, and the fight over the right rendering becomes part of the dispute itself.

There is a quieter version of the same risk inside the company. If the people who perform the contract — project managers, support teams, finance — work from an informal German summary of an English original, the version that guides daily conduct is not the version that binds. Where a contract exists in two language versions, say explicitly which one prevails; where it exists in one, make sure the operating teams work from the binding text, not from folklore about it.

Choosing law: the home-field question

For a Swiss company, Swiss law is usually the sensible starting point: your counsel knows it, your templates assume it, and the Code of Obligations provides a lean, commercially minded backdrop. But the reflex "always our law" deserves scrutiny in two directions. Accepting a foreign law is not automatically a loss — some questions may even come out better — but it means your standard clauses now sit on a foundation they were not drafted for, and someone should check what still holds. And in cross-border sales of goods, remember that an international convention on sales law can apply of its own accord unless excluded; whether to exclude it is a genuine choice, not a ritual.

The honest rule: never accept a foreign governing law as a throwaway concession in the final call. It reprices every other clause in the contract.

Choosing forum: deliberately, not by default

The forum clause is where defaults do the most damage. Points worth deciding consciously rather than inheriting from a template:

  • Court or arbitration. Arbitration offers proceedings in English, confidentiality and awards that travel well across borders — at a cost that is hard to justify for small disputes. State courts are cheaper and fine for domestic matters; enforcement abroad depends on where the counterparty and its assets sit.
  • Whose home. A forum at your seat keeps disputes in known territory. A forum at the counterparty's seat means litigating abroad, in their language, under their procedure — factor that into how likely you are to actually enforce your rights.
  • Match the clause to the dispute you would realistically have. A high-volume, low-value customer relationship and a single large joint venture should not carry the same dispute clause just because the template did.

It is also worth knowing that Switzerland has taken steps to make English-language commercial proceedings possible in certain settings — the details depend on the canton and the case, and this is exactly the kind of question to resolve at drafting time, not after the dispute starts.

The five-minute check

Before signing, read the last two pages first: what law, what forum, what language prevails — and do the three fit each other and the deal? If the answer is "whatever the template said", that is worth a conversation before it becomes worth a translation budget. We review these clauses as a system across our clients' portfolios, and we are happy to look at yours.