Simon Gabriel

Gabriel Arbitration AG

Zurich www.gabriel-arbitration.ch

s.gabriel@gabriel-arbitration.ch Tel: +41 44 206 20 80

Biography

Simon is the founder of the Swiss arbitration law firm Gabriel Arbitration AG in Zurich. He has participated in over 100 international arbitration proceedings as chairman, co-arbitrator, sole arbitrator and legal counsel. Simon is admitted to all Swiss courts, holds a PhD in dispute resolution and an LLM in common law advocacy. Simon is member of the Swiss ICC Arbitration Commission and is endorsed in various arbitrator panels and legal directories.

What did you find most challenging about entering the field of international arbitration?

When I left university after my PhD, I had to find a law firm that first, had international arbitration work on a regular basis and, second, was not already packed with enthusiastic young arbitration lawyers. Already 15 years ago, this was quite a challenge. And today, it appears to me, it has certainly not got any easier.

What qualities make for an effective advocate in contentious proceedings?

A good storyteller and systematic thinker who is well prepared on the file will be an effective advocate. A good storyteller knows that the story of a case must be lifelike – and if it is not, there must be a very good explanation why a case is indeed exceptional. As arbitrator, I hear a lot of excellent lawyers who develop sophisticated factual and legal theories. But sometimes I miss the link to reality: what did really happen there? Why is there a dispute? Advocates who answer these questions in a lifelike manner based on the evidence on file are often extremely convincing.

A systematic thinker has a big advantage as consistency is a must. Every contradiction or change of factual or legal position during adversarial proceedings diminishes the credibility of the advocate and his or her case. In big cases, it can be quite challenging to keep the overview.

Victory loves preparation. The best advocate who appears in court unprepared will lose the case. It is as simple as that.

Since you began your career, what has been the biggest change you have seen in relation to the way that arbitration proceedings are conducted?

It is probably the lengths of the submissions. When I started, a senior arbitration partner in a major international law firm told me (and everybody else): “A claimant who is not in a position to present its case on 20 pages has no claim.” After some years, I asked him: “Should we maybe raise the threshold to 40 pages? Otherwise, we will hardly see any justified claims, anymore…”.

Nowadays, we often start with 50 to 100 pages for statements of claim and end up with multiple-hundred pages submissions in the second exchange of briefs (plus voluminous expert reports and very comprehensive witness statements).

I am not always sure to what extent the big teams of lawyers who author these exceptional submissions care about what is still manageable and persuasive for the members of the arbitral tribunal – sometimes, less (volume) is more (convincing).

How do you, as an arbitrator, try to ensure hearings are fair for all parties?

I try to offer reasonable expectation management before and during the hearing. So that counsel know what to expect and are thus prepared. If there are no (big) surprises on the manner in which the hearing is conducted, the hearing is typically considered as fair by the parties.

How efficient have online proceedings become since the beginning of the coronavirus pandemic?

In my experience, virtual hearings can work out fairly well, if they are carefully prepared (eg, with the assistance of a professional third-party host) and all parties agree to have a virtual hearing.

However, in cases where numerous voluminous documents must be discussed with witnesses (and maybe even compared), the “share screen” functions on Zoom and other platforms quickly reach their limits.

What long-term effects do you see covid-19 having on arbitration practice?

There will certainly be less hesitation to agree on fully virtual or hybrid hearings, which is positive in the sense of an additional option for suitable cases. Whether or not the handshake will be back soon remains to be seen. But, frankly speaking, I hope that there will not be too many longterm effects of covid-19 – neither in arbitration, nor more generally speaking…

What steps can younger arbitration practitioners take to improve their chances of getting arbitrator appointments? Is there an important role to play here for experienced lawyers?

I think “generating trust” is the keyword. Other lawyers must first get to know the names of these younger colleagues and then gain the trust that they are capable and fully devoted to deliver the bestpossible service as arbitrators.

This is sometimes neglected: the arbitrator is not the boss of the case – she or he is rather the first service provider.

Finally, a well-communicated “unique selling proposition” can be helpful in this regard (eg, specialisation in a certain industry or legal system), so that people remember.

Peers and clients say: “Simon is excellent as both counsel and arbitrator” “He is very experienced and has an excellent track record” “An excellent and very smart lawyer” “He’s a really good and effective co-arbitrator”