Daniel Hochstrasser
Office:
Brandschenkestrasse 90
8027
City:
Zurich
State:
Zurich
Country:
Switzerland
Tel:
+41 58 261 50 00
Fax:
+41 58 261 50 01

Questions and Answers:

Who's Who Legal Thought Leaders: Litigation

Daniel Hochstrasser focuses on representing parties in complex disputes arising from M&A transactions, industrial and infrastructure projects, banking and finance, as well as licence agreements particularly in the pharmaceutical field.

Daniel Hochstrasser has published and lectured on arbitration and litigation in Switzerland and abroad, and is a lecturer at the Universities of Zurich and St Gallen. Since July 2015, he has been a member of the ICC Court of Arbitration, Paris. He holds a law degree from the University of Zurich and an LLM from Cornell University in the USA.

WHAT ATTRACTED YOU TO A CAREER IN COMMERCIAL LITIGATION?

As a young lawyer I started my career in the judicial system of Zurich, first at a district court and then the Court of Appeals and the Court of Cassation. Over almost five years, I dealt with a broad variety of cases covering family law and petty criminal matters as well as highly complex commercial disputes. After that experience, I felt that being an advocate was more fitting to my temperament and character than being a judge. After one year in the US to acquire an LLM degree, I joined Bär & Karrer. I was fortunate to begin my litigation and arbitration career with Marc Blessing, one of the leading figures in Swiss arbitration at the time. It was never an option for me to switch to a purely advisory practice; I always enjoyed the intellectual challenge of exchanging arguments, both orally and in writing, with skilled opponents, trying to obtain the best possible result for my clients.

WHAT ARE THE QUALITIES OF A SUCCESSFUL LITIGATOR?

First and foremost, you have to be intimately familiar with all aspects of the relevant procedural laws; this is paramount. In addition, a solid background in substantive law is required. Finally, language skills are important. You must be able to write clear and convincing briefs, and to present oral arguments in a way that captures your audience.

Moreover, I believe that you have to enjoy arguing legal matters and possess a strong fighting spirit, combined with the ability to develop a sound strategy for the proceedings, to achieve a favourable outcome. It takes a sharp mind to react to anything the other side throws at you, and also courage to incur calculated risks.

HOW HAS LITIGATION AS A SPECIALISATION EVOLVED SINCE YOUR BEGAN YOUR PRACTICE?

When I started as a litigator, litigation was still a bread-and-butter business for many lawyers. It was only in the course of the 1990s that a clear distinction between litigators and advisers began to develop. This went hand in hand with the growth of the biggest law firms in Switzerland, from about 25 to 200 lawyers in the past 25 years. Today, it is almost inconceivable that somebody who is not an experienced litigator would conduct a complex litigation. At the same time, litigators are not usually involved in sophisticated commercial transactions with the days of the all-rounder having passed.

Conversely, litigators in Switzerland are not yet so specialised that they would restrict themselves to just one area of litigation.

CLASS ACTION LITIGATION HAS CEASED TO BE A UNIQUELY AMERICAN PHENOMENON AND IS GROWING IN PROFILE IN CONTINENTAL EUROPE AND THE UK. IN LIGHT OF THIS TREND, WHAT DO YOU THINK THE FUTURE HOLDS FOR MEANS OF COLLECTIVE REDRESS IN SWITZERLAND GIVEN THE CURRENT IMPERMISSIBILITY OF CLASS ACTION CLAIMS?

I consider it indispensable that Switzerland, in the next few years, will enact provisions in the Civil Procedure Code that allow class action-type lawsuits. The most recent example for the need of such mechanisms is the Volkswagen Diesel scandal, where a large number of citizens (including myself) have been damaged. The amounts in question do not warrant individual lawsuits, but it is, from the perspective of justice, important that appropriate compensation is paid. I am optimistic the Swiss legislators will react soon.

ALTHOUGH SWITZERLAND REMAINS A POPULAR SEAT FOR INTERNATIONAL ARBITRATION, LITIGATION REMAINS THE FIRST CHOICE FOR RESOLVING DOMESTIC DISPUTES. WHAT FACTORS CONTRIBUTE TO LITIGATION’S CONTINUING POPULARITY AS A METHOD OF DISPUTE RESOLUTION IN SWITZERLAND?

First, I should point out that in larger M&A transactions, arbitration clauses are included even if both parties are domiciled in Switzerland. However, the preferred dispute resolution mechanism for ordinary business-to-business transactions is still litigation, and the parties to such contracts usually agree on the Commercial Court of Zurich. The reason is that efficient court proceedings, with a settlement conference, well-led by a judge, can produce a settlement that is satisfactory for all parties. This is exactly what you expect from a dispute resolution mechanism, isn’t it?

BÄR & KARRER ENJOYS AN EXCELLENT REPUTATION FOR DISPUTE RESOLUTION, HOW DO YOU ENSURE YOUR TEAM CONTINUES TO STAND OUT FROM COMPETITORS IN THE MARKET?

We are in a strong position as our current practice leaders are all in their prime and we have added two partners in Geneva to expand our team, Pierre-Yves Gunter and Alexandra Johnson. In addition, our main focus is on developing our young associates and to promote the best of them to become partners. I am proud to say that, once I retire, my successors at the helm of our practice will have been part of my team since their early days as junior associates.

WHAT ADVICE WOULD YOU GIVE TO YOUNG LAWYERS LOOKING TO SPECIALISE IN THIS AREA?

I would probably tell them to do the same thing I did: in addition to training in a law firm, acquire the necessary experience working for a district court, possibly followed by a stint at a court of appeals. By observing how litigation plays out in everyday cases, one learns a lot – not only about law and strategy, but also the human condition. This should then be followed by some time abroad, either studying at an English language university or working in a law firm or legal department in the US or London. The resulting skill mix will provide a young lawyer with everything that is needed. For that lawyer to develop into a successful litigator depends on whether he or she also has the character, temperament and devotion to succeed when the going gets tough.

Who's Who Legal Thought Leaders - Arbitration

Daniel Hochstrasser focuses on representing parties in complex disputes arising from M&A transactions, industrial and infrastructure projects, banking and finance, as well as licence agreements, particularly in the pharmaceutical field, and frequently sits as arbitrator. Daniel has published and lectured on arbitration and litigation in Switzerland and abroad and is a lecturer at the Universities of Zurich and St Gallen. Since July 2015, he is a member of the ICC Court of Arbitration, Paris. He holds a law degree from the University of Zurich and an LLM from Cornell University in the US.

HOW HAS BÄR & KARRER GROWN TO MEET THE CURRENT CHALLENGES IN INTERNATIONAL ARBITRATION AND MOVE AHEAD OF ITS COMPETITORS?

Bär & Karrer has a growing team of arbitration practitioners consisting of more than 30 partners and associates who devote all or most of their time to acting as counsel in international arbitrations or sit as arbitrator. We cover all three language areas of Switzerland with our offices and arbitration practitioners in Zurich, Geneva and Lugano, and have last year been able to add Pierre-Yves to the team, one of Switzerland’s leading arbitration practitioners according to all ranking agencies. Our team is consistently rated in the top tier for dispute resolution, as are our leading partners (Daniel Hochstrasser, Pierre-Yves Gunter, Andreas Länzlinger, Cesare Jermini, Matthew Reiter, Nadja Jaisli, Alexandra Johnson and Aurélie Conrad, as well as Michele Bernasconi for sports arbitration).

TO WHAT EXTENT ARE EXPERT WITNESSES NOW KEY ELEMENTS OF SUCCESS IN AN ARBITRATION?

One has to distinguish three areas where expert witnesses come into play. First, on legal questions, where experts play a role in cases where the law applicable in a particular dispute is foreign to the arbitral tribunal or parts thereof, and therefore the parties cannot trust the iura novit curia principle. Second, on technical issues where experts are used to elucidate the arbitral tribunal on matters where they lack the necessary knowledge. Finally, the most important role (in my view) that experts play is in the context of substantiating and proving damage claims, particularly when lost profits are at stake. Nowadays, a claimant cannot win if it is not able to present experienced and credible experts who base their work on convincing arguments.

EUROPE AS A MARKET SEEMS TO HAVE SHIFTED MORE TOWARDS COMMERCIAL ARBITRATION AND AWAY FROM INVESTOR-STATE ARBITRATION. WHY IS THAT?

I do not share this impression. Investor-state arbitration was always a niche, and will probably continue to be around, but one will never see the same number of cases as in commercial arbitration. There is, however, growing criticism based on the fact that states are subjected to far-reaching decisions rendered by “private individuals”, ie, arbitrators who are not subject to the control of the public, as are state court judges. What is neglected by the people criticising investor-state arbitration in that regard is that the very essence of taking away such disputes from the public courts is to make sure that an investor has even a reasonable chance of success when claiming compensation from a state – which is certainly questionable if such claims are decided by judges paid and controlled by the very state that is involved in the proceeding. Thus, in my view, whatever the solution is to the issue, it certainly cannot be to simply eliminate investor-state arbitration – this would lead to a substantial devaluation of BITs because it would deprive them of their essence, namely the possibility for investors to actually enforce claims arising out of a BIT in a neutral forum.

WHAT DO CLIENTS LOOK FOR WHEN INSTRUCTING EFFECTIVE COUNSEL IN AN ARBITRATION?

What a client should look for is three elements: knowledge, experience and dedication. It is of paramount importance that the case has a face, and that is the role played by lead counsel. Although success in arbitration is most often the result of a team effort, an arbitral tribunal will identify the representatives of a party by the one or two attorneys who have the lead and present the case with depth and charisma. Of course, experience is, among other things, a function of age; however, what is equally important is availability and the dedication of lead counsel to actually handle the case and be involved. I have seen barristers added to arbitration cases late in the game, ie, for the purpose of the hearing, who were clearly not sufficiently familiar with the details of the matter, and thus played a poor role, which could have been fulfilled much better by those people handling the case up to the hearing.

SHOULD THERE BE A BINDING CODE OF ETHICS ON THE CONDUCT OF ADVOCATES AND COUNSEL IN ARBITRATION, AS SUGGESTED BY THE SWISS ARBITRATION ASSOCIATION SEVERAL YEARS AGO?

I do not see the need for a code of ethics, simply because there is no effective way to enforce such rules. Attorneys come from a national background, where their professional activities are governed by national rules and regulations, and (contrary to what some seem to believe) I do not think that these rules are in fact so different as to distort the playing field in a way that makes an international code necessary. Ultimately, it is the arbitral tribunal who has to safeguard the integrity of the proceedings. To add, for example, an additional layer of oversight by creating an international body fulfilling that task, would not lead to more efficiency of arbitration, but rather to a further possibility for dilatory guerrilla tactics. This cannot be in the interest of anyone, and certainly not in the interest of the party seeking relief in arbitration.

WHAT IS IT ABOUT THE SWISS MARKET THAT HAS ALLOWED IT TO WEATHER THE ECONOMIC DOWNTURN IN EUROPE SO WELL?

Switzerland as an economy has done better than other countries for a number of reasons – the discussion of which would certainly go beyond the scope of this submission. In terms of arbitration, it seems that the long-standing experience and the high professionalism of Swiss arbitration practitioners is a quality that does not lose value easily, and the Swiss arbitration community works hard to keep its standing in the market.

WHAT CONSTITUTES AN EFFECTIVE CROSS-EXAMINER, AND WHAT TACTICS BY THE ADVOCATE MAKE FOR A SUCCESSFUL OUTCOME?

The most important tool of a cross-examiner is careful preparation and intimate knowledge of the file. In addition, one should be reactive and alert; the worst cross-examiners are those who go through a list of questions (possibly prepared by a collaborator) and are not able to react to the answers they get by following up. Another point that I consider important is to focus the cross-examination on those points that are actually relevant for the decisive issues; nothing bores a tribunal more than endless questioning without making any points that serve the enlightenment of the tribunal.

WHAT DO YOU CONSIDER TO BE YOUR MOST SIGNIFICANT ACHIEVEMENT SO FAR AS HEAD OF THE FIRM’S ARBITRATION PRACTICE?

I am proud that we have been able to develop from two partners and two associates in 1999 to 10 partners and 20 associates, all of whom are recognised in the market for their skills, and we are constantly ranked among the leading firms in Switzerland and Europe wide, both in terms of strength of our team and the outstanding quality of our individuals. Personally, I believe that it pays off to be transparent so that people know what you stand for both as an attorney and a person. Sometimes, it is necessary to speak out when things develop in a way which you consider unsatisfactory, even if in the short term you pay the price for that; in the long term, people will recognise the value of your standing up for the principles you believe in.

Who's Who Legal Thought Leaders - Switzerland

Daniel Hochstrasser focuses on representing parties in complex disputes arising from M&A transactions, industrial and infrastructure projects, and banking and finance, as well as licence agreements, particularly in the pharmaceutical field, and he frequently sits as arbitrator. Daniel has published and lectured on arbitration and litigation in Switzerland and abroad, and is a lecturer at the Universities of Zurich and St Gallen. Since July 2015, he has been a member of the ICC Court of Arbitration. He holds a law degree from the University of Zurich and an LLM from Cornell University.

WHAT ATTRACTED YOU TO A CAREER IN INTERNATIONAL ARBITRATION?

After five years in the Zurich judiciary as a lawyer and an LLM degree in the USA, I joined Bär & Karrer in 1993, and worked with Marc Blessing – at the time one of the leading arbitration specialists in Europe. Thus, in addition to litigation, international arbitration quickly became the main focus of my work. I cannot say that this was a conscious decision; it was rather a development that was inevitable. This does not mean, however, that arbitration was not an interest of mine from the outset; while in the USA, I studied international arbitration law, and even wrote a thesis on the New York Convention. What I like about arbitration is the multicultural flavour and the flexibility of the proceedings. You have much more freedom to try to structure proceedings appropriately than in state court litigation, where all cases follow the same pattern. This opens possibilities for counsel to influence the way your case is handled, which is beneficial to the client and the administration of justice. 

WHICH INDUSTRY SECTORS ARE CURRENTLY BUSIEST IN YOUR PRACTICE?

We always have a variety of cases arising out of different sectors of the economy and quite a wide range of transactions. Traditionally, I have a constant stock of pharmaceutical cases (licence, development, distribution). 

IN YOUR OPINION, HOW DO YOU THINK THE ADVENT OF ARTIFICIAL INTELLIGENCE WILL TRANSFORM THE INTERNATIONAL ARBITRATION ENVIRONMENT IN THE FUTURE?

I believe that the ability to handle the possibilities of artificial intelligence will be an important and distinguishing feature of an arbitration practice. The entire submission and management of documents will become paperless, and the search for information in those documents will be done by computers, not people. On the other hand, I believe that there will be always room for great human minds in both the presentation of a case and the adjudication. 

SOURCES HAVE HIGHLIGHTED THE IMPORTANCE OF GENDER DIVERSITY WITHIN THE INTERNATIONAL ARBITRATION COMMUNITY. IN YOUR OPINION, WHAT FURTHER STEPS MUST BE TAKEN TO PROMOTE WOMEN’S ENTRY INTO THE PROFESSION?

Gender diversity is as important in international arbitration as in every other area of society; there is simply nothing special here. It is my impression that arbitration institutions play an important role, and they accept this responsibility by making sure that their own appointments are diverse, and not entirely focused on the same old group of practitioners that we had 10 or 20 years ago. Now counsel and, particularly, clients have to follow. There is still sometimes the impression that parties, influenced by their cultural background, have a strict preference for male arbitrators. I am not sure that international arbitration alone will achieve cultural change in these countries that will lead to equal opportunities for both genders; however, arbitration can contribute in that regard, and those who have seen the signs should try to exercise their influence in the right direction.

WHAT ADVICE WOULD YOU GIVE TO SOMEONE STARTING OUT IN INTERNATIONAL ARBITRATION?

In my view, you need an extremely solid foundation in procedural law; for young practitioners in my country, I therefore believe that to spend a certain amount of time in the state court system is helpful to get an understanding of how procedures work. Thereafter, time at an arbitral institution, such as the ICC, can also be very enlightening. Finally, you should join a law firm with a busy arbitration practice, which allows you to be exposed to a variety of cases that will provide you with the experience that you need. Quite obviously, familiarity with both the civil and common law system is absolutely key; arbitrations quite often are at the cutting edge between the two systems, with elements from both legal systems playing a role. Their understanding is thus crucial. 

GIVEN THE CONFIDENTIAL NATURE OF ARBITRATIONS, WHAT EFFECT IS THIS HAVING ON THE DEVELOPMENT OF LEGAL PRECEDENT?

Several commentators have pointed out recently that the fact that entire areas of the law are dealt with in disputes, and in arbitration, limits the development of case law in those fields – case law that is, depending on the legal system, important or even crucial to learn how specific issues are decided in practice. The remedy I see is that the institutions and tribunals are encouraged to publish their decisions systematically, so that the accusation that arbitration creates a secret legal system cannot be upheld. 

WHAT HAS BEEN YOUR GREATEST ACHIEVEMENT TO DATE?

I am proud that in my firm, we have been able to develop our arbitration practice from two partners and two associates in 1999 to 10 partners and 20 associates, all of whom are recognised in the market for their skills, and we are constantly ranked among the leading dispute resolution firms in Switzerland and Europe wide, both in terms of strength of our team and the outstanding quality of our individuals. Personally, I believe that it pays off to walk a straight line so that people know what you stand for as both an attorney and a person. Sometimes, it is necessary to speak out when things develop in a way that you consider unsatisfactory. Even if in the short term you pay the price for that; in the long term people will recognise the value of your standing up for the principles you believe in.

HOW DO YOU PLAN TO DEVELOP YOUR PRACTICE OVER THE NEXT FIVE YEARS?

My plan is to further strengthen the arbitration practice group in our firm, allowing younger colleagues to get a wider exposure to case work, publications and speaking engagements. For me, now is the time to pass on my experience and knowledge to a new generation of arbitration practitioners, both within my firm and outside it. I plan to continue representing parties as counsel, because this is my passion, and I would miss it terribly as part of my portfolio of work. I want to maintain a good balance between counsel mandates and arbitrator appointments.

Biographies:

Who's Who Legal Arbitration: Lawyers

Daniel Hochstrasser is the senior partner and co-heads Bär & Karrer’s arbitration practice, concentrating on commercial litigation and international arbitration. He primarily focuses on representing parties in complex disputes arising from M&A transactions, industrial and infrastructure projects, banking and finance, as well as licence agreements, particularly in the pharmaceutical field.

In addition, Daniel Hochstrasser is frequently chosen as sole or party-appointed arbitrator and chairman of international arbitrations. While many of these proceedings are conducted under the ICC or Swiss Rules, his experience also extends to the rules of other institutions (such as DIS, VIAC, SCC, LCIA, SIAC, CIETAC) and ad hoc arbitrations. He has published and lectured on arbitration and litigation in Switzerland and abroad, and is a lecturer at the universities of Zurich and St Gallen. Since July 2015, he is a member of the ICC Court of Arbitration, Paris.

Daniel Hochstrasser holds a law degree from the University of Zurich and an LLM from Cornell University in the USA. He is a member of the Zurich as well as the Swiss Bar Association, and of the Ethics Court of the Zurich Bar Association. He is fluent in German, English and French. 

WWL says: Daniel Hochstrasser is a key name in the market who is appreciated for being "very strong and convincing both as an advocate and arbitrator".

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

Who's Who Legal Switzerland - Arbitration

Daniel Hochstrasser is the senior partner and co-heads Bär & Karrer’s arbitration practice, concentrating on commercial litigation and international arbitration. He primarily focuses on representing parties in complex disputes arising from M&A transactions, industrial and infrastructure projects, banking and finance, as well as licence agreements, particularly in the pharmaceutical field.

In addition, Daniel Hochstrasser is frequently chosen as sole or party-appointed arbitrator and chairman of international arbitrations. While many of these proceedings are conducted under the ICC or Swiss Rules, his experience also extends to the rules of other institutions (such as DIS, VIAC, SCC, LCIA, SIAC, CIETAC) and ad hoc arbitrations. He has published and lectured on arbitration and litigation in Switzerland and abroad, and is a lecturer at the universities of Zurich and St Gallen. Since July 2015, he is a member of the ICC Court of Arbitration, Paris.

Daniel Hochstrasser holds a law degree from the University of Zurich and an LLM from Cornell University in the USA. He is a member of the Zurich as well as the Swiss Bar Association, and of the Ethics Court of the Zurich Bar Association. He is fluent in German, English and French.

WWL says: Daniel Hochstrasser enjoys “a very strong standing in the country” when it comes to arbitration work, where he “stands out as both counsel and arbitrator”.

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

Who's Who Legal Litigation: Lawyers

Daniel Hochstrasser is the senior partner and co-heads Bär & Karrer’s arbitration practice, concentrating on commercial litigation and international arbitration. He primarily focuses on representing parties in complex disputes arising from M&A transactions, industrial and infrastructure projects, banking and finance, as well as licence agreements, particularly in the pharmaceutical field.

In addition, Daniel Hochstrasser is frequently chosen as sole or party-appointed arbitrator and chairman of international arbitrations. While many of these proceedings are conducted under the ICC or Swiss Rules, his experience also extends to the rules of other institutions (such as DIS, VIAC, SCC, LCIA, SIAC, CIETAC and others) and ad hoc arbitrations. He has published and lectured on arbitration and litigation in Switzerland and abroad, and is a lecturer at the universities of Zurich and St Gallen. He has been a member of the ICC Court of Arbitration, Paris since July 2015.

Daniel Hochstrasser holds a law degree from the University of Zurich and an LLM from Cornell University in the USA. He is a member of the Zurich as well as the Swiss Bar Association, and of the Ethics Court of the Zurich Bar Association. He is fluent in German, English and French.

WWL says: Daniel Hochstrasser is a pre-eminent practitioner who draws praise as "an outstanding and highly experienced IP litigator".

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

Who's Who Legal Switzerland - Litigation

Daniel Hochstrasser is the senior partner and co-heads Bär & Karrer’s arbitration practice, concentrating on commercial litigation and international arbitration. He primarily focuses on representing parties in complex disputes arising from M&A transactions, industrial and infrastructure projects, banking and finance, as well as licence agreements, particularly in the pharmaceutical field.

In addition, Daniel Hochstrasser is frequently chosen as sole or party-appointed arbitrator and chairman of international arbitrations. While many of these proceedings are conducted under the ICC or Swiss Rules, his experience also extends to the rules of other institutions (such as DIS, VIAC, SCC, LCIA, SIAC, CIETAC and others) and ad hoc arbitrations. He has published and lectured on arbitration and litigation in Switzerland and abroad, and is a lecturer at the universities of Zurich and St Gallen. He has been a member of the ICC Court of Arbitration, Paris since July 2015.

Daniel Hochstrasser holds a law degree from the University of Zurich and an LLM from Cornell University in the USA. He is a member of the Zurich as well as the Swiss Bar Association, and of the Ethics Court of the Zurich Bar Association. He is fluent in German, English and French.

WWL says: Daniel Hochstrasser is a top name in complex commercial litigation and possesses in-depth experience of varied areas such as pharmaceuticals, infrastructure and banking.

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

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