After the US election: the one clause in your contracts worth re-reading

Donald Trump won the United States presidential election, called in the early hours of 6 November 2024. The AI-policy consequences will take months to appear. One consequence deserves attention sooner, because it touches almost every Swiss company: the legal basis for sending data to American providers.

Why this matters more than the AI headlines

Your Microsoft tenant, your CRM, your newsletter tool and most AI features you use all process data in or through the United States. That is lawful today, and the lawfulness rests on arrangements that are political as well as legal.

For Switzerland, the Swiss-US Data Privacy Framework has been recognised since September 2024, alongside the EU’s equivalent. Both rely on US commitments, on an independent oversight body, and on a redress mechanism for European citizens. Those are executive arrangements, and the incoming administration has broad latitude over them.

Two previous transfer arrangements, Safe Harbor and Privacy Shield, were struck down by European courts. That history is why a lawyer will tell you not to assume permanence.

The proportionate reading

Nothing is invalid today. Nobody should migrate anything this week. Alarmism here is as unhelpful as complacency.

What is reasonable is to stop treating the transfer basis as a settled background fact and start treating it as a dependency with a review date.

Three lines to add to your supplier file

• Where is our data processed? Not the vendor’s headquarters — the actual processing and storage locations, including their subprocessors.
• On what basis does it leave Switzerland? Data Privacy Framework certification, standard contractual clauses, or both. The vendor should answer in one sentence.
• What is the fallback? If the framework became unavailable, does the contract already fall back to standard contractual clauses, or would it need renegotiating?

That last question is the useful one, and most vendors have a good answer ready. The ones that do not have just told you something about how they handle change.

Ask now, while it is a routine enquiry, rather than in a quarter when it might not be.