SPENCER BROWN

Tacit Renewal Of Agreement

What would happen if, in a fixed-term contract, a non-competition clause had been definitively concluded and that agreement was tacitly renewed; Will the non-competition clause remain in effect? Commercial contracts in the leasing, digital media, insurance, telecommunications and fitness sectors often contain the always green clause in their contractual terms. In the case of a tacit renewal of the employment contract, there does not appear to be an exception to a non-competitive clause that has actually been agreed upon. In order to avoid a discussion with the worker and to be safe, I recommend that the employer re-agree in writing the non-competition clause before the expiry of the employment contract. Parties often do not discuss the extension of the employment contract until the period for which it was concluded expires, while the worker continues his duties after the agreed end date. On the basis of the law, the employment contract is in principle concluded for the same duration as the previous employment contract for up to one year. These rules can be deviated from a collective agreement. Such a tacitly renewed employment contract is deemed to have been concluded under the same conditions as the previous employment contract. On 8 January 2013, the `Hertogenbosch Court of Appeal examined whether a non-competition clause remained in force after a tacit renewal of the old employment contract. This agreement is for a one-year period beginning July 1, 2007. The applicability of the automatic extension clause varies from country to country. On 28 August 2009, B.________ wrote to A.________ to learn that the French company had received the construction of a wharf in the port of Cotonou and to demand payment of the contract compensation for specific assistance related to the allocation of this work.

First, A.________ ignored them. The parties then met in June 2010 and March 2011, without agreeing on the compensation sought by B.________. Finally, in a letter dated January 22, 2013, A.________ informed counsel of B.________ that it could not comply with the company`s request, as the contract was no longer in effect and the conditions justifying the payment of the fees were in any event not met. According to the above theory, economic operators would take into account the costs of contract renewal, (new) negotiation and termination prior to the decision-making process. Any change in the terms of the contract may result in higher “transaction costs” than the renewal of the same contractual terms. The fact remains that there are costs in both situations. However, the contracts no longer apply at the end of the term of the contract, so there are no costs associated with termination of the contract. [1] 2.1.

In Switzerland, the right to be heard is primarily about factual findings. The right of the parties to rule on matters of law is recognized only in a restrictive manner. As a general rule, the courts or arbitration tribunals of the state freely judge, according to the proverb jura novit curia, the legal relevance of the facts and may also rule on the basis of legal standards other than those invoked by the parties. Therefore, unless the arbitration agreement limits the jurisdiction`s task to the legal arguments put forward by the parties, it is not necessary to hear them specifically on the scope of the legislation. Exceptionally, they must be asked when the judge or the arbitral tribunal is considering basing the decision on a legal standard or consideration that was not invoked during the proceedings and whose relevance the parties could not foresee (ATF 130 III 35 against 5 and references). In addition, it is a matter of esteem to know the unpredictable.

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REP   ACTING: VLA     VO: SUE TERRY VOICES    LIT: RICHARD SCRIVENER

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