Erik Schäfer
Office:
Bleichstrasse 14
D-40211
City:
Düsseldorf
Country:
Germany
Tel:
+49 211 90 49 00
Fax:
+49 211 90 49 049

Questions and Answers:

Who's Who Legal Thought Leaders - Arbitration

Erik Schäfer is partner of COHAUSZ & FLORACK. His main areas of practice are IP and ICT, related transactional matters, and arbitration. Since 1994 Erik has been acting as arbitrator and counsel. Erik works in English, Spanish, French, and German.

WHAT MOTIVATED YOU TO PURSUE A PRACTICE IN INTERNATIONAL ARBITRATION?

When I started my career during the 1980s, arbitration was no viable specialisation in Germany and my arbitration knowledge was rather theoretical and limited. By chance, I read an ad in a law review for the post of “German” counsel at the ICC Court of Arbitration. Since I was also able to handle the handful of Spanish-language cases existing at that time, I was hired. This was my start into a fascinating world, full of highly motivated first-class lawyers, exciting cases, and fascinating procedural features. This kind of environment provides a level of personal fulfilment which is not easy to find elsewhere among the legal professions.  

YOU PRIMARILY ACT AS ARBITRATOR – WHAT IS IT ABOUT THE ROLE THAT APPEALS TO YOU?

I have a “second” life as advising party counsel and litigator in courts. From this activity, you obtain many ideas of how things could be done better as decider. Acting as arbitrator affords you with this possibility.

WERE THERE ANY CHALLENGES YOU FACED ESTABLISHING AN ARBITRATION PRACTICE IN AN IP FIRM WITHOUT A STRONG FOCUS IN THE FIELD?

The global IP community is as active, international and professionally enriching as the arbitration world. For most IP lawyers, arbitration is just an occasional side activity or non-existent. We are all very busy and, at least in Germany, have a preference for the state courts. Accordingly, the challenge is freeing and dedicating the energy and resources in a firm that thrives in the IP field.

YOU ARE WELL VERSED IN HANDLING ARBITRATION PROCEEDINGS IN RELATION TO IP AND TECHNOLOGY MATTERS. TO WHAT EXTENT IS SECTOR AND INDUSTRY-RELATED SPECIALISATION, ON THE PART OF THE ARBITRATOR, IMPORTANT? 

Disputes relating to IP and, more generally, technology tend to be factually complex and require special legal and background industry experience. In my personal opinion, it is not sufficient to educate counsel or arbitrators through expert witnesses or use of consultants in such matters, if one is interested in the quality and predictability of the outcome. There are reasons for arbitration having thrived during most of its historical development as a means of justice provided by experts in the field. Arbitration as a specialisation in its current form is relatively recent.

TO WHAT EXTENT IS ARBITRATION BECOMING A POPULAR FORM OF DISPUTE RESOLUTION IN THE IP SPACE?

Arbitration has always been the best choice for international licensing agreements and technology projects, for which national courts are too often ill-equipped. The arbitration community is presently drawn by high-value litigation prospects in IP-related matters which attract public attention, especially so-called FRAND disputes.

HOW DO YOU SEE THE GROWING ROLE OF TECHNOLOGY IN DISPUTES AFFECTING THE PRACTICE OF INTERNATIONAL ARBITRATION IN THE FUTURE?

Firstly, the fact patterns will change because transactions will occur through platforms that are highly automated. It will not be easy to understand the facts without understanding how these systems work. Secondly, the focus on fulfilment problems will change from legal issues to functional error/quality problems that can be detected, measured and evaluated by statistical means, sometimes even by use of predictive models. This will allow correction and risk allocation in ways that potentially reduce the number and scale of legal disputes. If people believe that pattern recognition and data extraction or predictive analytics, etc, will just be new tools for arbitration proceedings as we know them, they are probably going astray. Moreover, where such tools appear, lawyers will have to adjust to the system requirements, rather than the systems adjusting to human needs. These changes will be gradual but not necessarily slow.      

WHAT ADVICE WOULD YOU SHARE WITH OTHER LAWYERS WHO HOPE ONE DAY TO BE IN YOUR POSITION?

I do not know whether anybody does hope to be in my position, except for me. You probably need the will and energy to succeed, and a good dose of realism around your capabilities and external prospects, with windows of opportunity that open and close constantly. For the rest: always look on the bright sight of life!

LOOKING BACK OVER YOUR CAREER, WHAT HAVE YOU BEEN THE PROUDEST OF?

The cases that I successfully settled as counsel for my clients.

Biographies:

Who's Who Legal Germany - Arbitration

Erik Schäfer is a partner at Cohausz & Florack, a firm focusing on technology and IP. His main areas of practice are arbitration, matters with a technical flavour (technology law, IT), intellectual property with all aspects of its commercial exploitation, and commercial law. Since 1994, he has been acting either as counsel or arbitrator in national and international arbitration proceedings. The subject matters of the disputes included, inter alia, software projects, engineering and construction, oil exploration and development, IP licenses, outsourcing, purchase, distribution and R&D agreements, service and marketing contracts, shareholder and IP purchase agreements, e-payment clearance, know-how and patent-related disputes. He is a trained mediator.

Erik co-chaired the task force on IT and arbitration and the task force on expertise proceedings of the ICC commission on arbitration and ADR. He was a member of the e-disclosure task force and the IBA working group on the state-investor mediation rules. He is empanelled for IP matters at SIAC, HKIAK, and as arbitrator and meditator at KLRCA. He was among the founders and chairs of the Austro-German chapter of CEA and is a member of GRUR, LES, MARQUES, ASA, CEPANI, IBA, ICCA and DIS.

Mr Schäfer speaks and writes English, Spanish, French and German. He has conducted arbitral proceedings as chairman or sole arbitrator in these languages.

WWL says: Erik Schäfer is lauded by fellow practitioners as "one of the brightest gentlemen we have in the German arbitration market".

This biography is an extract from Who's Who Legal: Germany which can be purchased from our Shop.

Who's Who Legal Arbitration: Lawyers

Erik Schäfer is a partner at Cohausz & Florack, a firm focusing on technology and IP. His main areas of practice are arbitration, matters with a technical flavour (technology law, IT), intellectual property with all aspects of its commercial exploitation, and commercial law. Since 1994, he has been acting either as counsel or arbitrator in national and international arbitration proceedings. The subject matter of the disputes included, inter alia, software projects, engineering and construction, oil exploration and development, IP licences, outsourcing, purchase, distribution and R&D agreements, service and marketing contracts, shareholder and IP purchase agreements, e-payment clearance, know-how and patent-related disputes. He is a trained mediator.

Erik co-chaired the task force on IT and arbitration and the task force on expertise proceedings of the ICC commission on arbitration and ADR. He was a member of the e-disclosure task force and the IBA working group on the state-investor mediation rules. He is empanelled for IP matters at SIAC, HKIAK, and as arbitrator and meditator at KLRCA. He was among the founders and chairs of the Austro-German chapter of CEA and is a member of GRUR, LES, MARQUES, ASA, CEPANI, IBA, ICCA and DIS.

Mr Schäfer speaks and writes English, Spanish, French and German. He has conducted arbitral proceedings as chairman or sole arbitrator in these languages.

WWL says: Erik Schäfer "one of the brightest gentlemen in the German market" who is "always good at facilitating a settlement between parties and isn't afraid of sharing the truth".

This biography is an extract from Who's Who Legal: Arbitration which can be purchased from our Shop.

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