Led a German utility to victory in a billion-dollar technology dispute
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Founded in 1969, Swiss firm Bär & Karrer began to develop an international arbitration practice in the early 1980s. A key member of the group was Marc Blessing, a highly regarded arbitrator and honorary president of the Swiss Arbitration Association. Blessing retired as partner in 2007 but retains a counsel role at the firm.
Originating in Zurich, the firm opened offices in Lugano and Zug in the early 1990s, and Geneva in 2000. In arbitration terms, it has traditionally been seen as more of a force in the German-speaking part of Switzerland, with the majority of the team based in Zurich, including long-term practice head Daniel Hochstrasser.
As of 2017, the practice is co-led from the Geneva office by Pierre-Yves Gunter, who joined after nearly two decades with GAR 100 firm Python. He brought with him a team that includes partner Alexandra C Johnson, a Harvard-educated member of the ICC Swiss Commission of Arbitration.
Another Zurich-based partner, Michele Bernasconi, frequently sits as arbitrator in cases at the Court of Arbitration for Sport (CAS). Partner Saverio Lembo has overseen the arbitration team in Geneva as well as heading the white-collar crime practice. Also in Geneva, partner Nadja Jaisli Kull is a member of the board of the Swiss Arbitration Association.
There is a small team in Italian-speaking Lugano, including Cesare Jermini, vice president of the Arbitration Court of the Swiss Chambers’ Arbitration Institution.
In addition to its own client base, the firm is popular with international law firms looking for local co-counsel in a Swiss-seated arbitration.
Who uses it?
Swedish-Finnish telecoms operator TeliaSonera, Italian engineering group Ansaldo, insurer Generali, European football’s governing body, UEFA, and the Swiss Broadcasting Corporation have all used the firm. Other recent clients include Sandoz (the generics division of pharmaceutical group Novartis), German power utility Energie Baden-Württemberg (EnBW) and the Israeli state-owned Israel Electric Corporation.
The firm has had some big wins. It helped French nuclear company Areva win more than US$920 million in a dispute with Siemens concerning a collapsed joint venture.
For TeliaSonera it secured an award of US$932 million plus interest against Turkey’s Çukurova Holdings in an ICC dispute over a share purchase agreement, also defeating a mirror claim by Çukurova. The award has since been the subject of enforcement proceedings in the US, UK, the Netherlands and the British Virgin Islands.
One of Gunter and Johnson’s last cases at Python was defending the National Iranian Gas Company (NIGC) in a pair of ICC arbitrations brought by Turkish state pipeline company BOTAŞ under a longterm gas supply agreement. The first case, in which BOTAŞ sought a US$13 billion price reduction, was dismissed in its entirety in 2014. In the second case, the Turkish company won a 13.3% price adjustment rather than the 37.5% it had sought. NIGC was also permitted to reimburse BOTAŞ by making deductions from future invoices, rather than a lump sum payment.
Working with Luther and Allen & Overy, Bär & Karrer advised Ansaldo in a US$436 million dispute with Siemens over the use of a gas turbine technology it had licensed to the Italian engineering company in 2004. In 2016, a tribunal dismissed Siemen’s claim, and ruled that Ansaldo could not only use the technology, but sub-license it to third parties in the China and South Korean markets.
Bär & Karrer successfully defended Sandoz against an ICC claim worth US$125 million brought by US biotech company Monsanto. In 2012, a tribunal rejected claims that Sandoz had failed to meet quality assurance obligations, and awarded costs and attorneys’ fees to the firm’s client.
The firm’s lawyers helped UEFA win a dispute with FC Sion concerning the sanctions for use of non-eligible players in UEFA play-off games. A panel of CAS arbitrators upheld the sanctions that UEFA had imposed on the Swiss football team, holding that the team should not be included in the UEFA Europa League 2011/2012.
A team led by Matthew Reiter in Zurich won a final award in March 2017 in favour of their client EnBW in a US$1 billion dispute. German inventor HG Kiss had brought the ad hoc arbitration, alleging breach of duties of loyalty arising from EnBW’s acquisition of a minority interest in Thermoselect, the company behind a waste-gasification technology developed in the 1990s. Kiss’s claim was dismissed in its entirety, and EnBW was granted legal costs of US4.4 million.
Daniel Hochstrasser led a team that persuaded the Swiss Federal Supreme Court to uphold an ICC award worth US$1.7 billion plus interest in favour of their client, Israel Electric Corporation, against two Egyptian state entities. The award arose from the termination of a deal to supply gas from Egypt to Israel in the wake of the Arab Spring.
Gunter has been chairing an ICC tribunal in a high-value ICC arbitration relating to the expansion of the Panama Canal. He and Johnson also successfully defended a US$50 million claim under the Swiss Rules.
Partner Michele Bernasconi continued to advise UEFA before the CAS on a variety of disciplinary matters, including the exclusion of clubs from the UEFA Champions League, match-fixing and media rights. He also acted as sole arbitrator in the dispute between Real Madrid and FIFA over the transfer of minor players, as well as several high-profile doping cases.
Alfred Gerber, general counsel at gas company Winterthur, used the firm in an UNCITRAL case over an international licence agreement in marine business. He says the case was “100% decided in our favour”. He says the team showed “good business savvy” and that Nadja Jaisli-Kull in particular was “calm, concentrated, fact-driven, highly effective”.
Another client, who did not wish to be identified, praised Hochstrasser as an “experienced, strategic thinker, good at focusing on what is relevant and a tough counsel”.