E-commerce agreement: Switzerland’s plans for digital trade | HÄRTING Rechtsanwälte

A software download across borders, an electronic invoice, a digitally signed contract: whilst these have long been technically feasible, they still face differing national legal rules. The E-Commerce Agreement is intended to remove such barriers. Switzerland has launched a consultation on this matter. What matters most for businesses is which simplifications are actually planned – and which legal hurdles remain.

29. October 2026

Switzerland’s E-Commerce Agreement at a glance

On 14 October 2026, the Federal Council launched the consultation process on the plurilateral agreement on electronic commerce. The E-Commerce Agreement (ECA) is intended to establish common rules for digital trade relations. The deadline for submitting comments is 28 January 2027. For Swiss online retailers, software providers and companies operating internationally, this is about more than just reducing paperwork: common rules are intended to prevent cross-border digital transactions from failing due to avoidable legal and administrative hurdles.

The substantive negotiations were concluded in 2024. According to the Federal Council, because individual WTO members are blocking its incorporation into the WTO legal framework, 67 members agreed in March 2026 on a way forward via interim agreements. However, an intention to participate must be distinguished from legal commitment. The ECA will enter into force for the first accepting members on the 30th day following the deposit of the 45th instrument of acceptance, and for members accepting at a later date on the 30th day following the deposit of their own instrument of acceptance. The Swiss consultation process alone does not bring the agreement into force.

As already explained in our article on the Digital Agreement between the EFTA states and Singapore, trade agreements can provide better legal protection for digital business models. The ECA pursues this approach with a wider group of participants. However, this does not result in a globally uniform e-commerce law: what remains decisive is between which parties the agreement applies and which obligation applies in a specific case.

Prohibition on customs duties: planning certainty for digital deliveries

A key component is the prohibition of customs duties on electronic transmissions between persons from different contracting parties. The transmitted content is also covered. This may be relevant, for example, to digitally delivered software or digital publications. Internal taxes, fees and other charges remain permissible under the conditions set out in Article 11 of the ECA. This does not entail a comprehensive exemption from such charges.

The provision has gained significance following the end of the previous general WTO customs moratorium: This expired on 30 March 2026 due to a lack of consensus. The ECA is intended to provide a separate contractual safeguard between its parties in this regard. Conversely, the expiry of the moratorium does not mean that new customs duties are already being levied everywhere. The economic value therefore lies primarily in protection against future tariff barriers. Those who distribute digital products internationally require a robust basis for pricing and contractual terms. The tariff ban is intended to prevent an additional burden on electronic transmission from altering this calculation. However, it guarantees neither unchanged taxes nor entirely duty-free distribution.

Article 11 of the ECA provides for a review in the fifth year following its entry into force and subsequently at regular intervals. This is not a time limit: the review does not automatically result in the customs ban being lifted.

In business practice, it is advisable to make a clear distinction between electronic transmission, tax treatment and the physical delivery of goods. A parcel ordered online does not constitute an ‘electronic transmission’ simply because it was ordered digitally. The customs ban therefore does not automatically apply to all goods sold via an online shop.

Paperless processes: legal recognition is key

The agreement promotes electronic invoices, digital trade documents and the interoperability of electronic procedures. It also includes rules on electronic contracts and authentication. The practical benefit lies in situations where companies currently have to interrupt their digital processes because a public authority or business partner still legally requires paper documents. However, the provisions have varying degrees of binding force. The ECA contains both specific recognition requirements and obligations to make every effort to ensure better cooperation and technical compatibility. In some cases, statutory exceptions are expressly reserved. Companies cannot therefore yet infer from the aim of paperless processing that every electronic document must be accepted in every contracting state in future.

Consequently, simply replacing paper with PDF files is not sufficient for implementation. A fully electronic process should also provide traceable documentation of who made which declaration, which version of the contract was agreed upon, and when documents were received. When making the transition, therefore, the procurement, sales, accounts and legal departments should jointly determine what evidence is required and how it is to be retained. Simplifying the process is of little use if, in the event of a dispute, the conclusion of the contract or the content of a statement cannot be reliably proven.

Electronic signatures: ‘Internationally applicable’ does not mean legally valid everywhere

The ECA promotes the use of electronic signatures but does not remove all statutory formal requirements. Nor does it mandate the mutual recognition of signatures across the board.

Under Swiss law, there is, in principle, freedom of form. Where a handwritten signature is required, Article 14(2bis) of the Swiss Code of Obligations (OR) equates a qualified electronic signature with a qualified time stamp in accordance with the Qualified Electronic Signatures Act (ZertES) with a handwritten signature; this is subject to any deviating statutory or contractual provisions. A simple electronic signature does not automatically fulfil this requirement. Furthermore, in international transactions, the recognition of the certificate used must be verified. According to the latest information from OFCOM, there is as yet no agreement on the mutual recognition of electronic signatures between Switzerland and the EU or any third country. A foreign qualified signature is therefore not deemed equivalent to a Swiss one solely on the basis of its foreign qualification.

The practical risk lies in confusion: a signature may be technically reliable without fulfilling the form required for a specific contract. Conversely, a contract not subject to any formal requirements does not need a qualified electronic signature to be validly concluded. Two separate questions are therefore crucial: what form does the applicable law require – and what evidence does the company need in the event of a subsequent dispute? For contractual processes, this means that signature procedures should be selected according to the type of contract, the applicable law and the formal requirements. A provider’s mere assurance that its solution can be used internationally does not, in itself, answer these questions.

Data protection: Participation in the ECA does not replace a data transfer assessment

The ECA provides a legal framework for the protection of the personal data of users of electronic commerce. However, this does not imply that all data protection regimes of the participating states are automatically equivalent. The Treaty does not merely stop at a general commitment to data protection. Article 25 of the ECA expressly provides for measures to protect personal data and privacy, including in relation to cross-border data transfers. The prerequisite is that the relevant law provides for instruments that enable transfers under generally applicable conditions of protection. Economic liberalisation and data protection are thus reconciled within the Agreement itself.

For Swiss companies, Articles 16 and 17 of the Federal Act on Data Protection (FADP, SR 235.1) remain applicable. The decisive factor is, first and foremost, whether the Federal Council has determined that the recipient country provides an adequate level of data protection. In the absence of such a determination, suitable safeguards – such as recognised standard data protection clauses or the statutory exceptions – may be considered. In the case of contractual safeguards, the legal and factual conditions in the recipient country must also be taken into account; additional technical protective measures may be required.

A company that uses a foreign cloud or support provider for its international online shop should therefore specifically identify the recipients, processing locations and access options. The fact that the provider is based in an ECA participating state does not, in itself, answer the data protection question. Nor is the agreement a reason to remove existing contractual data protection safeguards.

Consumer protection: An order confirmation does not constitute acceptance of the contract

The proposed regulatory framework also includes protection against misleading and fraudulent business practices, as well as measures against unsolicited electronic marketing messages. The obligations are directed at the contracting parties; the specific requirements for a business must still be determined on the basis of the applicable law in each case. In Switzerland, Article 3(1)(s) of the Unfair Competition Act (UWG) requires providers engaged in electronic commerce, amongst other things, to provide clear identity and contact details, information on the technical steps involved in concluding the contract, the possibility to correct input errors, and an immediate electronic order confirmation. A statutory exception applies to contracts concluded exclusively on an individual basis via email or similar means of communication.

For online shop operators, a key point of consideration lies in the interplay between user guidance, terms and conditions, and automated emails. The legally required confirmation of receipt of the order does not necessarily constitute acceptance of the contractual offer. However, its wording may contain a corresponding declaration. Anyone wishing to reserve the right to accept an order only after checking availability or creditworthiness must therefore ensure that the ordering process does not undermine this reservation through contradictory assurances. This coordination is already required today.

Cyber security: Interconnected processes require clear lines of responsibility

The ECA emphasises collaboration and risk-based approaches to cyber security. No general new certification requirement for every Swiss company can be inferred from this.

Nevertheless, security remains a prerequisite for functioning digital business processes. If orders, invoices and deliveries are automatically linked, incorrect or manipulated data can affect several process steps simultaneously. Particular attention must be paid to access rights, the security of interfaces and responsibilities in the event of security incidents. In the case of external service providers, it is advisable to set out clear contractual provisions regarding cooperation in the event of a disruption. The crucial factor is who can halt an affected process, rectify the error and resume operations. These are practical recommendations for process design, not new obligations arising from the consultation process.

What companies can do now to prepare

Meaningful preparation begins with the actual obstacles within one’s own business: where do sales markets still require paper documents? Which invoice formats result in additional manual work? For which contracts is the cross-border recognition of signatures unclear? Such questions will later serve as a yardstick for measuring whether the ECA brings tangible benefits in the respective market.

Existing compliance processes do not need to be completely overhauled as a precautionary measure due to the consultation. Rather, it makes sense to document specific obstacles and monitor the bill’s progress. Companies and industry associations can contribute such practical experiences to the consultation process until 28 January 2027.

The benefits of the ECA will become apparent depending on whether digital business processes actually become simpler across borders. Common rules can create a more robust foundation for this. However, the benefit for businesses will only materialise once the relevant obligation is applicable and can be utilised in specific processes. This is precisely where preparations should begin: by addressing demonstrable inefficiencies in international business.