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GAR 100 - 11th Edition

Schellenberg Wittmer

04 April 2018

The Swiss firm won a victory for Russian athletes accused of doping

People in Who’s Who Legal 5
People in Future Leaders 8
Pending cases as counsel 43
Value of pending counsel work US$28 billion
Treaty cases 4
Current arbitrator appointments 40 (of which 22 are as sole or chair)
Lawyers sitting as arbitrator 10

Created in 2000 through the merger of Schellenberg & Haissly in Zurich and Brunschwig Wittmer in Geneva, Schellenberg Wittmer married two firms already in sync when it came to thinking about international arbitration.

In Geneva, Laurent Lévy and Gabrielle Kaufmann-Kohler built a team with sufficient horsepower to compete for non-Swiss work. Meanwhile, in Zurich, Georg von Segesser and colleagues thought that diversity and more international work was the way to go. When the two firms merged, the result was a team with unusual equipoise between Zurich and Geneva, a mixture of foreign-trained and Swiss lawyers and an emphasis on oral advocacy – not a skill set Swiss firms traditionally sought.

Nowadays, Lévy and Kaufmann-Kohler are successful independent arbitrators at their own shop, while von Segesser also left the firm to practise as an independent arbitrator in 2016. However, two more generations of lawyers continue to pursue the founders’ vision of a diverse team tackling non-Swiss arbitration work.

Since 2015, the practice has been chaired by Geneva-based partner Elliott Geisinger, the president of the Swiss Arbitration Association (ASA). The vice chairs are Philippe Bärtsch in Geneva and Christopher Boog, who divides his time between Zurich and Singapore.

Another highly regarded name is Nathalie Voser in Zurich, who is much in demand as an arbitrator and sits on the boards of the SCC Arbitration Institute and various other international bodies.

Schellenberg Wittmer reckons to be one of the few firms in Switzerland to field common law-trained advocates who do nothing but arbitration. In fact, the firm believes that among its competitors, only Lalive matches it in terms of size, diversity and expertise of the arbitration team.

The team has taken part in cases governed by English, Polish, Czech, UAE, Thai, Senegalese, Indonesian, Indian, Chinese, Philippine and Cameroonian law, none of which were heard in Switzerland.

Network

The firm is one of the few Swiss arbitration practices held in equal regard in the French and German-speaking parts of the country, with offices in Zurich and Geneva. In 2014, it made its first expansion into Asia, opening an office in Singapore.

Who uses it?

Clients from the pharmaceuticals, construction and oil and gas sectors are common, the firm says. Bayer Pharma, Ceylan, GE, Gucci, Johnson & Johnson, Hungary’s MOL, France’s Medex Petroleum, Procter & Gamble, Siemens, SGS, Watson Pharmaceuticals, Merck and Orange/France Télécom are recent examples.

The firm also acts for states and state-owned entities including Hungary and Algeria’s national oil and gas company Sonatrach. Russia used it in a Swiss court challenge to a decision in a Yukos-related treaty arbitration (see ‘Recent events’).

Track record

In 2016, the firm successfully defended Hungarian oil and gas producer MOL against a billion-dollar claim brought by Croatia. As co-counsel with Dechert, Weil Gotshal & Manges and Wolf Theiss, it persuaded an UNCITRAL tribunal to reject allegations that MOL paid bribes to Croatia’s former prime minister Ivo Sanader. The same team also defeated an attempt by Croatia to annul the award in the Swiss courts in January 2017.

Schellenberg Wittmer acted for a major pharmaceutical in a US$210 million ICC dispute over non-conforming drug products. The client won on the merits and was awarded a significant part of the damages claimed, plus costs. Another case for Watson Pharmaceuticals ended in 2009 with a US$100 million win.

It led another client to victory in 2015 in a Dubai-seated ICC arbitration under Saudi law, obtaining a €47 million award and the dismissal of all counterclaims.

The team has had a string of successes defending awards in set-aside proceedings before the Swiss Supreme Court. For example, it preserved a €220 million award in favour of Orange/France Télécom and an ICC award in favour of US company Hasbro.

Getting an award set aside by the Swiss courts is traditionally much harder than defending one – fewer than 7% of award challenges succeed. But the firm has achieved this also.

The firm emphasises that a significant number of its cases end in settlement before arbitration or early in the proceedings – but “if there is a fight, the gloves come off”. One such settlement was in 2013 for Merck in a US$2 billion dispute with a major US drug-maker. Another was for Técnicas Reunidas in a US$100 million ICC case over energy projects in the Middle East.

Recent events

Some of the firm’s most eye-catching work came in sports, particularly for a group of Russian athletes challenging their lifetime bans from Olympic competition for alleged participation in state-sponsored doping ahead of the Winter Olympics in Pyeongchang.

A team led by Boog and Bärtsch convinced a panel at the Court of Arbitration for Sport to overturn the bans for 28 athletes on the basis of insufficient evidence, while reducing bans for 11 more – although the International Olympic Committee still declined to invite the athletes to compete in the Games.

Russia retained the firm for a challenge to an UNCITRAL decision upholding jurisdiction over a US$13 billion claim by Luxembourg’s Yukos Capital – one of the second wave of Energy Charter Treaty claims relating to the expropriation of Russia’s largest oil company more than a decade ago. The Swiss Supreme Court ruled in January 2017 that the appeal was premature – a ruling that Geisinger says may influence how arbitrators in Switzerland carve up jurisdictional issues in future.

A US pharmaceutical company instructed Schellenberg Wittmer for a €500 million arbitration. It is also acting for a European energy company in a €340 million dispute and two other high-value price revision arbitrations.

The former head of dispute resolution in Zurich, Martin Bernet, left the firm after 32 years to open his own boutique in January 2018. Urs Hoffmann-Nowotny was promoted to partner in Zurich at the start of the previous year.

Client comment

Michael Barry of IMAR Trading & Contracting in Qatar used the firm for a multimillion-dollar arbitration over a large construction project in Abu Dhabi. He praises Philippe Bärtsch for providing “great leadership” and Anne-Carole Cremades for ensuring the accuracy and relevancy of the final arguments.

Ümit Yamantürk, deputy general manager of Turkish contractor Güris¸, hired a team led by Geisinger in a crucial dispute for his company. “We needed to regroup the line of defence at an advanced stage, and this was understood and executed very efficiently,” he said.

He adds that the firm has “a very good experience of our business” and that its lawyers are “imaginative in their defence strategy and very thorough – we have not been disappointed so far”.

Insight

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