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Thought Leaders

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Christoph Brunner

Christoph Brunner

Peter & KimSchweizerhof-Passage 7BerneBerneSwitzerland3001

Thought Leader

Thought Leaders - Arbitration 2020

Q&A

WWL Ranking: Thought Leader

WWL says

Christoph Brunner is endorsed by peers as "an excellent and no-nonsense practitioner" who is "highly qualified, reliable, and brings excellent knowledge on Swiss law and experience in arbitration".

Questions & Answers

Christoph Brunner has acted as counsel, presiding arbitrator, sole arbitrator, co-arbitrator and legal expert in more than 90 international commercial arbitrations governed by various institutional and ad hoc rules. His range of expertise covers, in particular, M&A and joint ventures (including shareholders agreements and post-M&A disputes); construction/infrastructure projects; sales; distribution; and agency, in various business industries such as commodities trading, construction, energy, high-tech goods, telecoms and pharmaceuticals. He is a member of the ICC Swiss Commission of Arbitration and titular professor at the University of Bern.

What attracted you to a career in international arbitration? 

International arbitration allowed me to combine and pursue various interests and talents: profound law expertise; marked curiosity for the factual elements of a case; a good memory; a liking for numbers; analytical skills; management and diplomacy skills; and the art of advocacy or persuasion. I always find it exciting to see that every new case is unique, even if it bears similarities to previous cases or involves, at least in part, legal issues I dealt with previously. 

What has been the proudest moment of your career so far? 

As an arbitrator, having been able to ensure and promote the fairness of arbitral proceedings and the integrity of arbitral awards; and being recognised by clients and peers as a knowledgeable, sharp-witted and reliable arbitration practitioner. As counsel, my proudest moment came in a recent multibillion-dollar case, where I achieved a settlement on favourable terms for my client at a very early stage. 

What steps do you need to maintain your profile in the arbitration community? 

Have an in-depth knowledge of the ongoing cases; work hard; be fair, efficient and firm; and make yourself known in the marketplace, for example, by taking on speaking engagements and contributing to publications, thereby increasing the chances of word-of-mouth recommendations. 

What do you believe are the most important issues for clients when looking to conduct an arbitration? 

First, selection of appropriate counsel in light of the particularities of the case: the industry and type of contract involved; the amount in dispute; the applicable law; and the required expertise, experience and availability. Second, selection of appropriate experts (if needed), separate from selecting the appropriate client representative and fact witnesses. Third, selection of appropriate arbitrators. Clients want the opportunity to present their case, and to persuade the arbitral tribunal of their position; at the same time, they do not want protracted and overly expensive proceedings. This requires good and efficient case management by counsel and the (presiding) arbitrators. 

What skills make a successful arbitrator? 

Profound knowledge of the file, combined with an in-depth command of the law, good analytical and management skills; willingness to immerse yourself in unfamiliar fields or technical aspects; sound judgement and cogent reasoning; flexibility in designing an appropriate procedural schedule; and firmness in enforcing this procedural framework reasonably. Also important are communication skills, both with the parties (especially in hearings) and the co-arbitrators (deliberations; the ability to earn the confidence and trust of your coarbitrators; and the ability to explain the paths of reasoning that leads to the proposed result). A successful arbitrator should also have utter impartiality and openness; a reverence for the law; a keen intellect; honesty and fair-mindedness; and a talent for being firm, where appropriate, and for managing a contentious situation. If there is a losing party, they should be able to fully understand, if not to accept, the reasons it was not successful. They must be given clear and comprehensive reasons for decisions. 

To what extent is Switzerland still a leading jurisdiction for arbitration? What has it done to maintain its prestige in the area? 

Switzerland has a very arbitration-friendly and stable legal framework. At a procedural level, losing parties should know that they have no opportunity to force delays and costs on their opponents by filing a challenge against an award in Switzerland. Consequently, they will in most cases refrain from initiating setting-aside procedures. Even if an award is challenged, only the highest court of Switzerland, the Swiss Federal Supreme Court, is competent to decide and will do so very quickly. According to empirical studies, the Court set aside less than 7 per cent of all challenges brought under chapter 12 of the Private International Law Act (PILA, including the Swiss law governing international arbitration) and decided on the merits of the challenge. This typically took between four and six months (ie, one month for the challenge, and three to five months for the subsequent submissions and the rendering of the decision). On a substantive law level, Swiss law and the abundant case law of the Swiss Supreme Court is characterised by a pragmatic and foreseeable approach, generally in line with international principles. 

In addition, Switzerland offers extensive experience and reliability from its practitioners and arbitration community, as well as a willingness to make improvements to the legal environment (for example, it has almost completed its revision of chapter 12 of the PILA).

What are the main challenges facing arbitrators at the moment?

Arbitrators need to cope with a constantly increasing regulatory density, including new guidelines (soft law) and administrative forms. The recent covid-19 situation has given rise to many delicate procedural issues, including the appropriate length of requested time extensions for submissions; adjustments to the procedural timetable; and recourse to virtual hearings on the merits if there is no agreement between the parties. 

What impact has covid-19 had on commercial arbitration?

Covid-19 has certainly had a significant impact in terms of making virtual procedural and merits hearings commonly acceptable, both in the arbitration community and by the users. So far covid-19 has boosted innovation in international arbitration, which is inherently destined to evolve and innovate, and should be adapted to the particular circumstances of each individual case. 

In my experience parties are predominantly willing to be flexible in principle, but often disagree on what is considered appropriate under the circumstances. Although there were occasional technical glitches, my experience with virtual merits hearings has been very positive and encouraging.

WWL Ranking: Thought Leader
WWL Ranking: Thought Leader

Global Leader

Arbitration 2020

Professional Biography

WWL Ranking: Recommended

WWL says

Christoph Brunner is endorsed by peers as "an excellent and no-nonsense practitioner" who is "highly qualified, reliable, and brings excellent knowledge on Swiss law and experience in arbitration".

Biography

Christoph Brunner is a full-time partner at Peter & Partners a new global specialist practice in Switzerland, South Korea and Australia, dedicated to international commercial and investment arbitration. He has been practising dispute resolution for more than 20 years. His practice focuses on international arbitration as well as complex and international litigation. He has acted as counsel, presiding arbitrator, sole arbitrator, co-arbitrator and legal expert in more than 85 international commercial arbitrations, governed by various procedural and substantive laws. His range of expertise covers, in particular, M&A, joint ventures, construction/infrastructure projects, sales, licence and distribution contracts, and international legal assistance.

He also regularly acts as counsel in international and complex cases before state courts in Switzerland, including the Swiss Supreme Court.  

Christoph Brunner was admitted to practise in 1994; received his doctorate in law (Dr iur) in 1996 (Eduard A Stein Prize); and graduated from the University of California at Berkeley School of Law in 1997 (LLM). He has been an adjunct professor of law for commercial law, comparative law and international arbitration at the University of Bern since 2007 and was appointed titular professor in 2014. Among others he is a member of the Swiss ICC Arbitration Commission. He has published several books and numerous articles on commercial law and international arbitration. He is the author of the well-known treatise Force Majeure and Hardship under General Contract Principles (Kluwer, 2009), and the author and editor of a commentary on the CISG (second German edition, 2014; English edition, Wolters Kluwer, 2019).

WWL Ranking: Recommended

National Leader

WWL Ranking: Recommended
WWL Ranking: Recommended
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