Daniel Hochstrasser

Bär & Karrer Ltd

Zurich www.baerkarrer.ch

daniel.hochstrasser@baerkarrer.ch Tel: +41 58 261 50 00

Biography

Daniel Hochstrasser focuses on representing parties in complex disputes arising from M&A transactions, industrial and infrastructure projects, banking and finance and licence agreements, particularly in the pharmaceutical field. He is frequently chosen as arbitrator in large international disputes – party-appointed or as president of the tribunal. Daniel has published and lectured on arbitration and litigation in Switzerland and abroad, and is a lecturer at the University of Zurich. Since July 2015, he has been a member of the ICC Court of Arbitration, and since 2021 one of its vice-presidents. He holds law degrees from the University of Zurich and from Cornell University in the USA.

What a party should look for, both in a counsel and arbitrator, are three elements: knowledge, experience and dedication. Experience is, among other things, a function of age; however, what is equally important is availability and the dedication to actually handle the case and be involved. For an arbitrator, preparation for the hearing and efficient handling of procedural decisions are key qualities that an appointment should take into account. An important factor is the role that the arbitrator can play within the tribunal: will he be respected and listened to by his colleagues? You do not want to appoint an arbitrator who blindly supports your position – this could even have an adverse effect.

How effective are virtual hearings and arbitration proceedings compared to their in-person alternative? Do you see them becoming the ‘new normal’?

The quality and effectiveness of remote hearings in arbitration has improved significantly thanks to the growing familiarity of arbitrators and counsel with the technology used. In particular, everybody has learnt how to position cameras and microphones in order to make themselves heard and seen. On the other hand, remote hearings are and will remain two dimensional – ie, one can hear and see people’s faces and upper bodies, but misses other elements such as body language. In addition, one is only focused on the person actually speaking, and cannot easily take note of the reaction of other participants. It is a clear disadvantage, for instance, for counsel who cross-examine a witness, if they cannot easily detect the reactions of the arbitral tribunal to specific statements. I do believe that remote hearings will become the “new normal” for procedural hearings (such as case management conferences), but not for longer hearings on the merits of a dispute.

What further steps can be taken to ensure that arbitration professionals are more comfortable using arbitration hosting platforms and other technology increasingly used in proceedings?

The key is to practise the use of the tools and the availability of professional equipment. A full hearing conducted remotely should always be managed by a specialist, an IT technician or other person intimately familiar with the technology and software used for the hearing. It certainly cannot be the responsibility of the president of the tribunal to manage the hearing technology; this would detract from their main task in an unacceptable manner.

Have you seen many covid19-related disputes enter the arbitration space, or do you mainly see them in litigation? Why might this be, and how may it change?

So far, the main effect of covid-19 on the substance of disputes is that parties claim that performance of a contractual obligation was made impossible or overly burdensome as a consequence of the coronavirus pandemic. I expect to see more of those cases, and it will be interesting to see how the law will develop under the various legal systems and applicable theories (force majeure, clausula rebus sic stantibus, hardship and others).

What challenges and opportunities does virtual working present to lawyers for networking and training?

One of the major changes is that it has become almost impossible to meet and connect with lawyers for networking purposes. The informality of discussions at conferences and seminars has been totally lost. For training, this is less dramatic. Webinars and other net-based events are a relatively good alternative and have become increasingly helpful.

What do you enjoy most about your role as co-head of Bär & Karrer’s arbitration practice?

I am proud that in my firm, we have been able to develop our disputes practice from two or three partners and a few associates in 1993, when I joined, to 20 partners and 30 associates, all of whom are recognised in the market for their skills, and we are constantly ranked among the leading dispute resolution firms in Switzerland and Europe-wide, both in terms of strength of our team and the outstanding quality of our individuals.

I plan to continue to represent parties as counsel, because this is my passion, and I would miss it terribly as part of my portfolio of work. I want to maintain a good balance between counsel mandates and arbitrator appointments.

What is the best piece of advice you’ve ever received?

In addition to training in a law firm, try to also work for a district court, possibly followed by a stint at a court of appeals. By observing how litigation plays out in everyday cases, one learns a lot, not only about law and strategy, but also the human condition. This should then be followed by some time abroad, either studying at an Anglo-Saxon university or working in a law firm or legal department in the US or London. The resulting skill mix will provide a young lawyer with everything that is needed; whether that lawyer will develop into a successful litigator depends on whether he or she also has the character, temperament and devotion to succeed when the going gets tough.

WWL says: The “very skilled” Daniel Hochstrasser is “a top name in the field”, singled out as “an excellent choice for arbitration and litigation”.