Christoph Brunner

Peter & Kim

Bern www.peterandkim.com

cbrunner@peterandkim.com Tel: +41 58 317 70 50

Biography

Christoph Brunner has acted as counsel, presiding arbitrator, sole arbitrator, co-arbitrator and legal expert in more than 100 arbitrations. His range of expertise covers, in particular, M&A and joint ventures (including shareholders’ agreements and post-M&A disputes), construction/infrastructure projects, sales, distribution and agency, in various business industries such as construction, energy, high-tech goods, telecommunications and pharmaceuticals. He is a member of the ICC Commission on Arbitration and ADR and titular professor at the University of Bern.

International arbitration allowed me to combine and pursue various interests and talents: profound law expertise, marked curiosity for the factual elements of a case and good memory, liking for numbers, analytical skills, management and diplomacy skills, and the art of advocacy or persuasion.

What qualities make for a good arbitrator?

• Profound knowledge of the file, combined with an in-depth command of the law, good analytical and management skills. • Willingness to immerse yourself in unfamiliar fields or technical aspects. • Sound judgement and cogent reasoning. • Flexibility in designing an appropriate procedural schedule; firmness in reasonably enforcing this procedural framework. • Communication skills. • Utter impartiality and openness. • If there is a losing party, it should be able, if not to accept, but at least to fully understand, the reasons why it was not successful.

How will the ongoing sanctions continue to affect Russianrelated construction projects and arbitration?

On 6 October 2022 the EU adopted its eighth package of sanctions against Russia, which includes prohibitions to provide architectural and engineering services, legal advisory services and IT consultancy services to the government of Russia or Russian entities.

Even though the relevant regulation limits “legal advisory services” to “noncontentious matters” and excludes “any representation, advice, preparation of documents or verification of documents in the context of legal representation services, namely in […] arbitral or mediation proceedings”, operators may still be reluctant to provide legal advice to Russian entities because such advice may be interpreted as non-contentious, for example if pre-arbitral legal advice leads to no action being taken. Due to the same regulation, Russian-related construction projects will likely be affected by sanctions as well.

There has been a lot of activity in Europe regarding infrastructure, with major highway and rail projects expected to impact the market. How effective is arbitration at dealing with such cases at the moment?

Arbitration is generally faster at resolving disputes about infrastructure projects involving international actors than state courts. In furtherance of this, creative dispute resolution mechanisms can be adopted, for example, the appointment of a sole arbitrator with subject matter expertise to render an award on a single issue in a fast-track arbitration.

With creative, party-agreed approaches like this, I would expect arbitration to continue to be an effective method of dispute resolution, particularly in the complex field of construction and infrastructure.

In what ways is arbitration becoming greener? Do clients also have a role to play in this transformation?

First, arbitrators may find themselves in a position to reduce their own carbon footprint. Measures include holding virtual meetings and hearings. Clients have their own role to play, for example, by agreeing to virtual hearings, or by offsetting their own carbon footprints.

Second, arbitration is well-established in resolving environmental disputes. With growing climate change related investments, especially in the energy sector, we can also expect to see a growing number of climate related disputes.

How big is the issue of geographic exclusion in arbitration (i.e. where small states don’t

have the infrastructure to participate effectively in arbitration proceedings)? How could this be effectively addressed?

Geographic exclusion remains an issue even following trends of growing digitalisation, which help to mitigate this problem. Ongoing efforts to establish arbitration institutions and seats of arbitrations outside the historically dominant locations must be noted as well. There is value in developing different geographic locations, particularly in Africa and India, provided that the host state is able to set up arbitration-friendly legislation and court systems.

What are the stated goals of the ICC task force on corruption, and do you think they are ambitious enough?

The ICC task force’s goal is to raise awareness of the manner in which arbitral tribunals have addressed issues of corruption by identifying and analysing past and current practices of tribunals, applicable laws and rules, red flags, etc.

This is quite ambitious given the number and complexity of the issues involved. It is generally understood that while corruption cannot be condoned, parties should not be allowed to free themselves of their obligations easily.

What has been your greatest achievement to date?

As an arbitrator: • Having been able to ensure and promote the fairness of arbitral proceedings and the integrity and persuasiveness of arbitral awards. • Being recognised by clients and peers as a knowledgeable, sharp-witted and reliable arbitration practitioner.

As counsel: in a high-value case, having achieved a settlement on favourable terms for clients at an early stage.

WWL says: Christoph Brunner is “very highly regarded” and “very much in demand” thanks to his sterling reputation as “an excellent arbitrator” with “tremendous experience” and “an analytical mind”.