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Swiss Arbitration Interview Series: Felix Dasser

Why did you become a lawyer and more specifically an arbitration practitioner?

After high school I thought that I could study anything – I liked everything. However, most subjects – like chemistry, history, math, etc. seemed too narrow. What I really liked about law was that it opened the path to many different professions. Law also required a lot of general understanding, logic, and languages. That’s why I went into law.

I ended up working in arbitration a bit by luck. I liked private international law and decided to write my thesis on the first open issue in the 1982 Message to Parliament on the PILA – which happened to be the determination of the applicable substantive law in arbitration. Then I discovered that Julian Lew had the same idea a few years earlier. So I focused on the use of lex mercatoria as substantive law. When I started working at my law firm, I first did a bit of everything, but soon specialized in litigation and arbitration because of my academic background.

What was your dream job as a kid?

Like Rick in “Casablanca”, I did not plan so much in advance [laughter].

What was your last holiday?

I spent a week in Austria with my wife after the ASA Arbitration Practice Seminar in Eisenstadt.

Besides working as a lawyer, what do you enjoy doing in your free time?

For most of my professional life, I had to work 150% and had four children who were growing up. So there was not much time left for hobbies anymore. Still, I played handball and squash and did a lot of rock and roll dancing until my body suggested that I’m getting too old for all of that. All the while, the whole family enjoyed and still enjoys traveling to exotic places. Now, I’m taking up some old hobbies again, like  playing  the guitar, although I’m not sure anyone would enjoy hearing me play [laughter]. With the children grown up, I also have more time to go to prog rock concerts and operas. I used to paint a lot too and hope to start again soon.

After all these years in practice, what is your main source of motivation when a new case lands on your desk?

It’s the fact that each case is new. The fact that I am far from “having done it all”. I look at each case as a new challenge.

Why did you decide to become President of ASA?

Becoming president of ASA was never an objective or life goal of mine. The opportunity presented itself and it sort of happened. I like to take challenges as they come. It’s a bit like in the Matrix movies. In one scene, Neo is in a hallway and behind every door is a different part of the world. I try to take the same approach to life. When a door opens – and a new challenge arises – I like to walk through and check it out.

Is there anything you particularly enjoy in your day-to-day work in international arbitration?

The unexpected! In each case, the underlying business issue is different, the strategy is different, and the challenges are different.

Is there anything you wish would change in international arbitration?

Arbitration is becoming more and more like litigation. That’s not for the benefit of the users. They do not want arbitral proceedings to last for years, have extensive taking of evidence and extensive memorials. This overcomplication of arbitration goes against its very essence.

If your law firm tasked you with buying CHF 500’000 worth of pens from a Brazilian company (enough for the next 100 years), what would your dispute resolution clause look like?

Swiss Rules, obviously! I guess I would choose Geneva as seat, as it’s closer to Brazil than Zurich [laughter].

What will be the main changes and the main trends in the coming 30 years in international arbitration?

That’s a question for the younger generation! I won’t be around in 30 years. More seriously, that’s a question I think about a lot. I think arbitration will be more and more used. State courts won’t be a real alternative anytime soon. Neither will mediation; it is steadily growing but from a very low base. I also think that the push to hold procedural hearings online is going to continue, but I do not see hearings on the merits for important cases being held fully remotely.

In the coming years, do you think we will see more and more international contracts with dispute resolution clauses providing for the jurisdiction of state commercial courts (for instance, the Singapore International Commercial Court) or will arbitration continue to be the prominent dispute resolution mechanism?

I don’t think that state commercial courts will take off big time. Parties are more likely to pick the national courts of one of the parties – which the other party will not want. State courts of third countries – for instance, the Singapore International Commercial Court or a newly created Zurich International Commercial Court – will hardly become very popular anytime soon. These courts have no track record yet. And you also need to consider that these courts are attached to a legal system, usually common law or civil law. One of the parties might not want to use one of these systems. But what I see is a push from certain countries to push their own arbitration commissions. This is for instance the case with China.

So you don’t think Switzerland should set up the Geneva/Zurich International Commercial Court with English as a working language?

I don’t really see a need. Then again, maybe it’s worth a try – but only if they adopt a procedure that is more in line with international expectations than the usual local traditions.

What about the use of Swiss law to govern agreements of non-Swiss entities? Do you see it growing or shrinking?

The push of English law and New York law will continue. We will see more and more agreements using these laws as governing laws. However, I think that Swiss law will keep its place as the preferred civil law. It’s important that we continue to promote Swiss law. A good example is China. When China opened to foreign trade in the 1990s, the first foreign lawyers to enter China were mostly common lawyers. These lawyers helped Chinese companies enter the international market by drafting contracts for them, including the choice of a common law. There’s important work to be done in China in promoting Swiss law instead of common law. Swiss law has all the advantages: it’s accessible, neutral and flexible – and has actually served as one of the sources of modern Chinese law.

Do you think that Swiss law would benefit from more articles/books being published in English?

Definitely. I’m very happy that Prof. Christoph Müller published his new book “Swiss Contract Law in International Commercial Arbitration” in English.

What is your take on Switzerland as a seat? Do you think it will grow or shrink?

I am very optimistic about that. If I wasn’t, I wouldn’t have wanted to become the President of ASA. We had excellent days in the 1960s and 1970s. After 1990 we started to lose market share to new arbitration venues. The case load remained steady, but this is because the overall number of cases increased. We have an excellent multicultural community, probably the best arbitration law, a wonderful judiciary which assists arbitration, we are a neutral country, and we have a stable democracy. Thanks to these assets, I think Switzerland can grow as a place of arbitration.

Final question – do you have any advice for young arbitration practitioners?

I will refer again to the Matrix example – accept any challenge that happens to come your way.