Harold Frey

Lenz & Staehelin

Zurich www.lenzstaehelin.com

harold.frey@lenzstaehelin.com Tel: +41 58 450 80 00

Biography

Harold Frey leads the litigation and arbitration practice of Lenz & Staehelin in Zurich. He has acted in numerous large-scale cases (also involving states) before arbitral tribunals and state courts. Matters have included a wide range of legal issues and industries (with a particular focus on energy, pharmaceutical and construction). Mr. Frey has profound knowledge and extensive experience in all aspects of corporate and M&A dispute resolution. In addition to his work as counsel, Harold Frey regularly sits as arbitrator.

Since my studies and bar exams in Zurich and New York I have been practicing international arbitration at Lenz & Staehelin for more than 20 years (with an interruption in 2005/06 when I worked as an associate in the arbitration group of WilmerHale in London). I became head of our Zurich arbitration practice in 2009 and head of the joint litigation and arbitration practice in 2014.

What did you find most challenging about entering arbitration?

I had the great fortune of working for outstanding practitioners, including Peter Hafter, Michele Patocchi and Gary Born, in the first years of my career. Thanks to their valuable mentorship and exposure to great cases, entering arbitration was not the challenge. If anything, the challenge was to quickly rise up to their expectation.

What are the advantages and disadvantages of arbitration compared to litigation?

The single most important advantage of arbitration is the flexibility it offers, allowing parties with different backgrounds to select arbitrators and conduct proceedings as they deem fit and tailored to the specific needs of the case. Depending on the parties’ arrangements, or if abused by one side or the other, this flexibility naturally has an impact on timing and costs of proceedings – often criticised as arbitration’s biggest disadvantages.

How does your experience assisting clients in a wide range of sectors enhance your arbitration practice? How do you ensure you develop indepth sector knowledge?

While specialised industry experience is important, a varied sector experience gives you a better ability to appreciate and understand commercial issues as they may arise in any dispute. It allows you to compare practices and results on a broad scale, enabling you to present your arguments in a way that would appeal to common sense and to arbitrators from different backgrounds and with different industry experiences. And many types of disputes occur over a broad range of sectors – mergers and acquisition disputes, to name just one example.

Some practitioners report that, post pandemic, arbitration costs are deterring parties from bringing matters. Is this your experience?

This is not my experience. During the pandemic, especially at the beginning, clients often appeared rather risk averse and, thus, hesitant to start arbitrations. Post pandemic, however, considerations as to whether or not a matter should be brought to arbitration are similar as they had been before. As one notable shift in practice, users are now increasingly willing and prepared to conduct case management conferences and in certain cases even hearings online to save travel and infrastructure costs.

What are the key qualities that make for a successful arbitrator?

A genuine interest to engage with the facts. Being lawyers, arbitrators naturally take a keen interest in the law – and mastering the law is of course an indispensable quality for a successful arbitrator. But what often makes the difference between a good and an excellent arbitrator is the willingness to address – and the intellectual ability to understand – complex facts, be it in the first instance when examining witnesses and experts or eventually in the award.

Another key quality, in particular for a chairperson, is the ability to master procedural aspects in a way ensuring efficiency yet providing each side a fair opportunity to present its case. Sometimes this may also require the courage to discipline unruly parties.

Where, in your opinion, does the future of the practice area lie?

Notwithstanding certain criticism about the length and costs of arbitration proceedings (and recent trends in document production have added to that criticism), arbitration will remain the single most important dispute mechanism to resolve international commercial disputes. I doubt that international commercial courts will become a true alternative in the near future. Still, arbitrators, counsel as well as party representatives and the arbitration community at large must work hard to improve the efficiency of the process – not by introducing new rules and guidelines, but by using common sense and sensibly applying existing case management tools in every single case.

What is your greatest achievement to date?

Over the years, I had the fortune to work with outstanding practitioners and be involved in fantastic cases (recently often for or against states or state-owned companies), most of which I like to think turned out very favourably for our side. Personally, my greatest achievement so far is that I was able to build up and grow an important arbitration practice at our firm in Zurich over the past 15 years.

WWL says: Harold Frey comes highly recommended for his vast skill and experience in commercial arbitration and litigation.