Bernhard C. Lauterburg

Bernhard Lauterburg and Marcel Frey analyse a recently published decision by the Federal Tribunal dealing with the interpretation of jurisdictional clauses in bilateral investment treaties with China and the appeal means available in instances of expropriation or measures of an equivalent intensity.

"We have been conducting these trials for twelve years now, and the standard has risen massively in recent years," said the Arbitral Tribunal. This is particularly true in today's round with the Claimant SensorX plc represented by Nieves Malpeli (procedural issues) and Philipp Bürgi (substantive issues) of the University of Bern. The defendant Visionic Ltd is no less competently represented, namely by Sofia Heim (procedural issues) and Leonie Thommen (substantive issues) of the University of Basel.

The facts are the same: counsel on both sides have a difficult time, with SensorX challenging its counsels with complete organisational chaos, while Visionic is impressing with an extra dose of naivety in dealing with cyber risks. But the representatives of the claimant and the defendant are not fazed by such details. They impressed the arbitral tribunal – compose of the Prager Dreifuss lawyers Marcel Frey (chairman), Gion Jegher and Bernhard Lauterburg – with their confident and self-assured demeanor, which was supported by their solid knowledge of the arbitration file and the applicable legal sources, topped off with several international reference judgments.

Both sides are bursting with attacking spirit, trying to wrap the arbitrators around their fingers en passant: good eye contact, moderately supportive gestures and an eloquent use of the voice, these elements make the winner. Only today there was none, the four fighters neutralised each other and were allowed to split the prize money between them.

"While we're here, we might as well resolve two disputes, right?" This is one of the arguments put forward by the Claimant SensorX plc, represented by Marko Savkovic (procedural issues) and Niklas Graefen (substantive issues) of the University of St. Gallen. "To the contrary, the two transactions have nothing to do with each other, the second request is not covered by the arbitration clause!", is the reply of the Respondent, Visionic Ltd, represented by Nathalie Kneisel (procedural issues) and Giovanni Giusti (substantive issues) of the University of Zurich.

And then there's this: a hacker used a spoof e-mail to divert USD 38 million from Visionic, which believed it had paid this to its seller, SensorX. Visionic had ordered sensors for cars in this amount, SensorX had delivered them and was therefore expecting payment. In its defence, Visionic accuses its business partner of being partly to blame for the dilemma, since the hacker was only able to create the detailed fraudulent spoof e-mail after a successful cyber-attack on SensorX. SensorX had kept quiet about the attack, leaving Visionic in the dark and transferring the money to the hacker's account.

The arbitration tribunal – the Prager Dreifuss lawyers Marcel Frey (chairman), Gion Jegher and Bernhard Lauterburg – noted that both parties had not given sufficient attention to the cyber risks. Who will win this dispute? Based on the more convincing oral presentation, the St. Gallen team walked away with a slim lead, with the debate continiuing into the reception that followed.

Marcel Frey and Bernhard Lauterburg discuss a recent Federal Tribunal decision on the parties' duty of care in arbitration proceedings. The Federal Supreme Court clarified its case law on the extinguishing of grounds to challenge arbitrators. This is the case if the grounds for challenge could have been discovered in good time by applying due diligence and could have been asserted during the arbitration proceedings. This requires the parties to carry out extensive research of publicly available information on the arbitrators.

The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under Swiss law, confidentiality, local courts' role to assist arbitration, enforcement of awards and the available remedies, both final and interim, and the new provision giving companies the option of subjecting corporate disputes to arbitral proceedings.

The second Moot Court practice run this year at Prager Dreifuss! On 17 March 2023, there was another encounter before the arbitral tribunal, the case was the same. The hearing began with the respondent — state-owned Equatoriana Geoscience Ltd — represented by Tsagaanlkham Badamkhand (procedural issues) and Iphigénie Carbonel (substantive issues) from the University of Basel. Respondent presented convincing and well-argued points against the jurisdiction of the tribunal.

The claimant—drone manufacturer Drone Eye plc—was represented by Perla Bachmann (procedural issues) and Anaïs Frischknecht (substantive issues) from the University of Zurich. Counsel for claimant also argued in the very best English, already the briefs submitted by the parties were of the highest standard. The debate turned – inter alia – on the question what qualifies as an aircraft and is therefore excluded from the scope of the applicable treaty on international sales of goods (CISG). The students researched thoroughly the jurisprudence available, assessing decisions on hot air balloons, submarines and used cars.

In the end, the team from the University of Zurich, with its good arguments and convincing presentation, was able to secure a narrow advantage with arbitral tribunal. The arbitration panel consisted of Marcel Frey as chairman and the two party-nominated arbitrators Gion Jegher and Bernhard Lauterburg. We wish both teams every success in the competition!

Finally, another student showdown on the 6th floor at Prager Dreifuss! On 8 March 2023, the claimant, drone manufacturer Drone Eye plc, represented by Filippo Börner (procedural issues) and Manuel Constam (substantive issues) from the University of St. Gallen, attended the oral hearing in the arbitral proceedings against respondent, state-owned company Equatoriana Geoscience Ltd, represented by Julia Bischof (procedural issues) and Alex Brückler (substantive issues) from the University of Bern.

In substance, claimant wants to be awarded damages under the purchase and supply agreement for 6 reconnaissance aircraft which it concluded with respondent. However, allegations of corruption, fraud and misrepresentation as well as dubious machinations play an important role alongside questions of jurisdiction and applicable law. The St. Gallen team displayed good file knowledge and communicated well. The students from Bern counterpunched with solid technical details on the purchase objects and valiantly countered the barrage of questions by the tribunal.

Well done! But you can always learn something new. The party representatives were able to take home some valuable input from the arbitrators, who could not come to a unanimous finding and decided to split the prize money equally among both contesting teams.

A stable and comprehensible legal framework is of great importance, not only in crisis situations, but in general. Legal uncertainties are poison for the supply of a country with important medical goods. The life sciences sector has so far not raised any major competition law issues in Switzerland. Yet, recent jurisprudence as well as enacted and planned legislative amendments are not free of contradictions and ambiguities. The lack of an update of the Mutual Recognition Agreement and the related status of Switzerland as a third country vis-à-vis the EU brought additional uncertainties. The authors provide an overview of the current regulatory environment and discuss the implications of planned legislative changes.

On Wednesday, March 16, 2022, the second trial run hearing within a week took place at the Zurich office of Prager Dreifuss with counsel for claimant from the University of Zurich (Lara Langer and Hadjar Sbaih) and counsel for respondent from the University of Lucerne (Asia Ponti and Andrea Greub), this time “in personal attendance”.

Our attorneys Marcel Frey (chairman), Gion Jegher and Bernhard Lauterburg constituted the arbitration tribunal. They asked parties' counsel many challenging questions. The young law students gave detailed answers showing great command of the facts and the law. The tribunal was deeply impressed by the professional expertise of the four students. Its only advice to the new generation: More passion and less argument is sometimes more. The verdict in the end: a narrow win for Lucerne.

Hybrid hearing with counsel for claimant from the University of St. Gallen (Damian Wyss and Jens Neese) and counsel for respondent from the University of Basel (Roger Reschek and Océane Kessler) on Monday, March 14, 2022, at the Zurich office of Prager Dreifuss:

A sudden withdrawal from an “in person” attendance by the Basel team due to a Covid contact issue challenged us to find an alternate setup for the hearing at short notice. Thanks to our IT hero Patrick Schmidhalter, we were able to prepare a hybrid courtroom with counsel for respondent (Basel) on screen and counsel for claimant (St. Gallen) in person. Our attorneys Marcel Frey (chairman), Gion Jegher and Bernhard Lauterburg formed the arbitral tribunal. They were deeply impressed by the technical language skills and the compelling arguments displayed by the four law students acting as counsel. While the St. Gallen team had a slight advantage in the room, the Basel team was credited with the digital disadvantage. The verdict at the end: a well-deserved draw.

The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals.

Bernhard Lauterburg and Marcel Frey of Prager Dreifuss explain how the Federal Tribunal overturned a CAS decision ordering an eight-year doping ban of the Chinese Olympic swimmer on the discovery of circumstances justifying the removal of an arbitrator.

The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim, and the new provisions governing arbitration in Switzerland that came into effect recently.

This annual report on jurisprudence in Swiss competition law in 2019/20 summarizes the most important cartels, abuse of dominance and merger cases in this period. It further contains some comments on three state aid cases falling under the bilateral air transport agreement CH-EU in 2020 and on the ongoing reform of the Swiss Cartels Act.

This article provides an overview on the recent practice of the Swiss competition authorities in merger control and on the ongoing reform of the Swiss Cartels Act and the merger control reform respectively

A Q&A guide to dispute resolution law in Switzerland.

The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals.

To compare answers across multiple jurisdictions visit the Litigation and enforcement Country Q&A tool.

This Q&A is part of the global guide to dispute resolution. For a full list of jurisdictional Q&As visit global.practicallaw.com/dispute-guide.

A Q&A guide to arbitration law and practice in Switzerland.

The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim.

To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A tool.

This Q&A is part of the multi-jurisdictional guide to arbitration. For a full list of jurisdictional Q&As visit global.practicallaw.com/arbitration-guide.