Roberto Dallafior is a litigation and arbitration specialist and managing partner of Nater Dallafior Rechtsanwälte AG, a Zurich law firm specialising in commercial litigation and arbitration. In his 30 years of practice, he has handled an impressive number of commercial disputes in contract and corporate matters, banking, insurance and reinsurance, (cross-border) insolvency, antitrust and public procurement, asset tracing, and international legal assistance. He acts as counsel before state courts, administrative bodies and arbitral tribunals, and as arbitrator – mainly in ICC, Swiss Rules and ad hoc proceedings.
What inspired you to pursue a legal career?
It was primarily my interest in how, and to what extent, society and its economic activity can and must be organised that inspired me to study law. Laws and regulations, and all implicit principles, were and still are the preferred mechanism to organise economic activity. I was particularly interested in the thinking behind, and the process leading, to legislation.
What do you most enjoy about working as a litigator?
Legal provisions have meaning and effect only if they are enforced. Hence, in my professional activity I developed a strong focus on making sure that the law is not just an empty word but is actually turned into facts and reality. I found out early in my career that a comprehensive establishment and thorough analysis of the facts of a case are often much more important for the outcome of a case than the legal argumentation. I always enjoyed – and still enjoy – investigating and analysing the facts and devising a winning strategy.
What qualities make for a good litigator?
A good litigation specialist will enforce his or her clients’ legal entitlements forcefully and consistently. He or she attaches great importance to an all-encompassing economic assessment, and is characterised by strategic and economic thinking, allowing him or her to best accommodate the clients’ needs. The primary objective should be to create added value, either by recovering funds, solving a problem, building a market position or reducing systemic risks. A successful litigator should further be completely unbiased and independent at all times, serving exclusively the interests of his or her clients and observing the principle pleasantly in manner and powerfully in deed.
Why did you decide to set up your own firm?
I wanted to be fully independent, which is an indispensable prerequisite for a strong and dedicated activity exclusively in the interest of the client, irrespective of other interests. A full-service firm cannot cater for the same level of independence, because of the multitude of diverging interests of different departments and their clients.
What are your main priorities for Nater Dallafior over the next five years?
My primary priority is a further specialisation. The team leaders of the new generation will need to focus even more. My vision is to further develop the set-up of different teams that deal with litigation and administrative proceedings for specific areas of law, such as banking and financial services litigation, insurance/reinsurance litigation, or corporate and commercial litigation.
Why do you think there has been an increase in insurance litigation in the past couple of years?
I identify two main reasons. First, the increase is certainly attributable to the financial crisis. In the aftermath, carriers had to struggle with their solvency. A second reason is a more general trend. While in the years prior to 2000, the European market, in particular, had a strong inclination to amicably settle disputes and generally followed a more cooperative approach, the carriers nowadays have adopted a more adversarial style that relies on disputes as a decision mechanism.
What advice would you give to younger practitioners hoping to be in your position one day?
In order to be a successful litigator or arbitrator in the future, you need to be diligent and perseverant; and to have a good grasp and understanding of commercial issues and economic reality, and the willingness to focus. Finally, yet importantly, you need the willingness to win and persuade, and the related analytical and communication skills are a prerequisite. In practical terms, we advise young lawyers to do what they are passionate about and stick to that. Then, the success is a result of doing what you really like.
Roberto Dallafior is a litigation and arbitration specialist and managing partner of Nater Dallafior Rechtsanwälte AG, a Zurich law firm specialising in commercial litigation and arbitration. In his 30 years of practice, he has handled an impressive number of commercial disputes in contract and corporate matters, banking, insurance, antitrust and public procurement, asset tracing and international legal assistance. He acts as counsel before state courts, administrative bodies and arbitral tribunals and as arbitrator mainly in ICC proceedings, Swiss Rules and ad hoc proceedings.
WHAT MOTIVATED YOU TO SPECIALISE IN LITIGATION WORK?
At the beginning of my career, I had the privilege of learning from the best in all fields (contracts, corporate, M&A, banking, disputes) as law firms in Switzerland considered business law to be the specialisation. My experience during that time ignited my passion for the enforcement of claims. The proof of the pudding and of all prior legal work is in the enforcement and defence of claims. Only effective enforcement and/or effective defence guarantees the respect of the rule of law (and of the contract), which I consider fundamental for a society that wants to provide a maximum of freedom to its citizens to act and to do business. The enforcement and/or defence requires strategic thinking and thorough economic analysis. This mix of challenges is fascinating again and again because every situation is different and calls for new solutions.
WHAT ARE THE GREATEST CHALLENGES CURRENTLY FACING LITIGATORS AND THEIR CLIENTS IN SWITZERLAND?
In my view, fact-finding is the biggest impediment to the effective enforcement of claims in Switzerland. Under our procedural rules, the burden of fact-finding lies entirely on the parties and there are virtually no procedural instruments that assist the parties in their endeavours. In particular, Swiss courts are extremely reluctant to order the production of documents. Effective tools such as pretrial depositions are not available at all. By contrast, defending claims requires thorough preparation and careful devising of the defence strategy.
Practical challenges are language barriers and the delay in implementing the advantages of digitalisation.
More general problems such as the duration and costs of proceedings are challenges, but probably not specific to Switzerland.
HOW DO YOU EXPECT THE SWISS FEDERAL COUNCIL’S BILL TO AMEND THE CODE OF CIVIL PROCEDURE TO IMPACT THE MARKET?
The bill encompasses very balanced provisions for collective redress. Unfortunately, these measures are unjustly contested in the political arena. In my view, the new system for collective redress would offer a possibility for companies to efficiently settle systemic claims and mass claims and to implement foreign class action settlements also in Switzerland. However, it is not yet clear whether the bill will collect the necessary backing in the parliament in this respect.
A less-disputed novelty is the protection of legal privilege of in-house counsel. This is a very welcome alignment to international practice.
HOW, AND TO WHAT EXTENT, HAS THE RULE OF LAW BEEN STRENGTHENED IN RELATION TO ADMINISTRATIVE PROCEEDINGS IN THE FINANCIAL SERVICES SECTOR RECENTLY?
After the financial crisis, FINMA developed a tendency to aggressively intervene once a problem was detected without carefully investigating the facts. There is a tendency of the Swiss Federal Supreme Court to enforce the rule of law in proceedings brought by FINMA. In a recent judgment, the Supreme Court upheld the principle of the right to be heard when imposing sanctions against individuals. Further, in another recent judgment, the Supreme Court held that no data on individuals may be collected unless based on facts properly gathered in constitutional proceedings. This type of judgment will strengthen the parties’ rights in administrative proceedings. Moreover, it will make future decisions of FINMA more effective as only decisions based on carefully investigated facts allow to identify causal links that have detrimental effects. The identification of proven causality is a prerequisite for imposing measures that lead to effective redress of systemic failures or irregularities.
IN YOUR OPINION, TO WHAT EXTENT HAS THE BANKING SECTOR RECOVERED FROM TAX COMPLIANCE ISSUES AND SCANDALS SUCH AS LIBOR AND FOREX?
In my experience, the disputes in these sectors are coming to an end and no additional fires are anticipated. In general, the industry has done a lot to implement the learnings from the crisis and, more importantly, avoid new problems.
HAVE YOU NOTICED AN UPTICK IN INSURANCE DISPUTES IN RECENT YEARS? IF SO, WHAT HAS CAUSED THIS CHANGE?
In Switzerland, insurance disputes were normally settled before reaching the courts. In the past five to 10 years, the carriers have stopped avoiding litigation. The reasons are probably multiple. Certainly, the more adversarial US approach has had an impact. The financial crisis also influenced the behaviour. And further, the stakes are higher, which does not favour settlements.
HOW HAS THE PRACTICE OF LITIGATION EVOLVED OVER THE COURSE OF YOUR CAREER? HOW DO YOU EXPECT IT DO SO OVER THE NEXT FIVE YEARS?
The overall trend is specialisation. Litigators tended to be generalists. Unfortunately, these days litigation is no longer a specialisation. Nowadays, we have specialists for all sorts of disputes; in our practice, we have specialists for corporate and commercial, banking, insurance and IP/IT litigation as well as for arbitration and white-collar crime/asset recovery.
WHAT ADVICE WOULD YOU GIVE TO YOUNGER LAWYERS HOPING TO ONE DAY BE IN YOUR POSITION?
To be a successful litigator or arbitrator in the future, you need to be diligent, to persevere, and to have a good grasp and understanding of commercial issues and economic reality, as well as the willingness to focus. Last but not least, you need the willingness to win and persuade, and the related analytical and communication skills are a prerequisite. In practical terms, we advise young lawyers to do what they are passionate about and to stick to that. Then, the success is a result of doing what you really like.
Roberto Dallafior is “an excellent lawyer” and a standout name in the market. He specialises in banking and regulatory disputes, and is very highly regarded for his work in the space.
Roberto Dallafior, born in 1961, is a litigation and arbitration specialist and managing partner of Nater Dallafior, a Zurich law firm specialising in commercial litigation and arbitration.
His primary focus is on representing domestic and international clients in complex proceedings before state courts, administrative bodies and arbitral tribunals, including the coordination of disputes in different jurisdictions. He is frequently asked to act as party-appointed arbitrator or chairman in domestic or international arbitration cases.
In his 30 years of practice, he has handled numerous commercial disputes in all areas of corporate and contract law, M&A, director’s liability, inheritance, media, antitrust, insolvency disputes, banking, unfair competition, public procurement, outsourcing and international legal assistance in civil and criminal matters. Recent cases involve coverage claims in insurance matters, both in litigation and in arbitration, banking disputes including regulatory matters, director's liability and contractual damages claims.
Roberto Dallafior is a member of the Zurich and Swiss Bar Associations, the Swiss Arbitration Association, the International Bar Association, the International Chamber of Commerce and the London Court of International Arbitration.
Roberto Dallafior studied at the University of Zurich (Dr iur 1990) and was admitted to the Bar in 1990. In 1992, he obtained his Diploma in Advanced European Legal Studies at the College of Europe. He worked as a foreign associate with Cleary, Gottlieb, Steen & Hamilton in Brussels; with Brosio, Casati & Associati in Milan; and for several years as associate with Homburger Rechtsanwälte in Zurich before starting his own practice.
Roberto Dallafior was raised bilingual in German and Italian. He is equally fluent in English, has a good working knowledge of French and is able to work in Spanish.