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GAR 100 - 12th Edition

Schellenberg Wittmer

05 April 2019

Representing Russia in treaty-related matters in the Swiss courts

People in Who's Who Legal 4
People in Future Leaders 11
Pending cases as counsel 53
Value of pending counsel work US$27.6 billion
Treaty cases 5
Third-party funded cases 0
Current arbitrator appointments 30 (23 as chair or sole)
Lawyers sitting as arbitrator 9

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.

While those partners have long since left, their legacy at the merged firm is a team with unusual equipoise between Zurich and Geneva, a mixture of foreign-trained and Swiss lawyers and an emphasis on oral advocacy.

Since 2015, the practice has been chaired by Geneva-based partner Elliott Geisinger, the president of the Swiss Arbitration Association (ASA). The vice chairs of the practice are Philippe Bärtsch in Geneva, another active ASA member, and Christopher Boog, who divides his time between Zurich and Singapore. Both have been at the firm since 2003.  

Another highly regarded name is Nathalie Voser in Zurich, who is much in demand as an arbitrator. She sits on the board of ASA and is a vice president of the LCIA.

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. Alpiq, Bayer Pharma, Ceylan, GE, Gucci, Ingersoll Rand, 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 has used it for Swiss court challenges to treaty awards relating to Yukos and Crimea.

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 (IOC) still declined to invite the athletes to compete in the Games.

Boog and Bärtsch subsequently helped one of the 28 athletes – cross-country skier Alexander Legkov – defend his CAS award against a challenge by the IOC, which was rejected by the Swiss Federal Tribunal in early 2019. In the wake of the court ruling, the IOC said it had decided against proceeding with appeals in the remaining 27 cases. 

The firm represented Russia in high-profile proceedings before the Swiss Federal Supreme Court, where the state sought to challenge a pair of investment treaty awards that upheld jurisdiction over claims by Ukrainian investors over property in Crimea. The court upheld the awards after a rare public deliberation between the judges.

In another Swiss court action, the firm represented TP Ferro, the insolvent former operator of a high-speed rail link between Spain and France. The court refused the client’s request to set aside an award that had prevented it from withdrawing a €300 million arbitration claim against the Spanish and French governments. (Quinn Emanuel is acting for the client in the arbitration, which is being heard by a four-member tribunal.)

Geisinger has been instructed as co-counsel for a construction consortium in several ICC cases relating to the enlargement of the Panama Canal. Other work includes representing a German client in a US$575 million construction dispute with a Kazakh counterparty; a US pharmaceutical company in a €530 million arbitration; and a European energy company in a €340 million dispute and two other high-value price revision cases.

Nathalie Voser received her first appointment as an ICSID arbitrator. The insolvency administrator of a German construction company appointed her to hear its claim against Turkmenistan.

It emerged that Alexander von Ziegler in the Zurich office was sole arbitrator in a Swiss Chambers case, ordering Tajikistan’s state-owned Agroinvestbank to pay US$20 million to an Austrian businessman’s company. The dispute has since spawned an ICSID claim.  

The firm promoted three women to the partnership: Julie Raneda in Singapore, and Anya George and Anna Kozmenko in Zurich, who are all recognised as “future leaders” by Who’s Who Legal.

Client comment

The legal director of one client that Schellenberg Wittmer recently helped enforce a Netherlands Arbitration Institute award before the Swiss Supreme Court praises the firm’s ability to provide “brief, accurate, targeted explanations”. He says that the ratio of results to fees is the best his company has found in Switzerland and singles out Nathalie Voser, Anya George and counsel Benno Strub for praise.

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.

Insight

Reviews

Regional analysis from arbitrators around the globe, focussing on key developments in specific industry areas and jurisdictions.

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The Middle Eastern and African Arbitration Review 2019

Highlights

CRCICA Overview

Ismail Selim and Dalia Hussein

The Cairo Regional Centre for International Commercial Arbitration (CRCICA)

DIFC-LCIA Arbitration Overview

Alec Emmerson

DIFC Arbitration Institute (DAI)

Robert Stephen, Matthew Harley and Katy Hacking

DIFC-LCIA Arbitration Centre