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Swiss Arbitration Interview Series: Nicole Alpert
Could you share a bit about your professional journey and how you came to your current role now as in-house counsel?
I started like many other in-house counsel in private practice, in Geneva. As a young lawyer, actually already during my lawyer traineeship, I was working on a lot of arbitrations. This admittedly was perhaps not the best preparation for the bar exam, especially as I was working mostly in English, but it gave me great insights into the field. Following this, I stayed five more years at Tavernier Tschanz (now NKF Geneva) where I almost exclusively practiced arbitration. I loved this work, but came a time when I wanted to see something different. I first joined Alstom in the power business (later acquired by General Electric) and after a few stints at different energy companies, I joined ABB last year.
Can you tell us more about your role at ABB?
ABB currently has four business areas (soon to be three), and I am the Global General Counsel for one of these business areas called “Process Automation”. I report directly to the Group General Counsel.
What different views on arbitration have you encountered in your career in-house?
I have generally seen quite positive attitudes towards arbitration in my field. Some companies have clear guidelines regarding the use of arbitration and the specifics of the dispute resolution clause. For instance, in some places we had threshold rules, with arbitration to be used for contracts above a certain contract value. I have also seen very detailed rules on what institutions were acceptable, what seats, what applicable laws, etc. Other companies adopt a more flexible approach, empowering their in-house lawyers to decide when to push for arbitration or not, and what specifics to go for.
What is your personal position?
It depends a lot on the contract and jurisdiction. I look at the pros and cons of each option. The question of arbitration versus state courts may also be a negotiation point, and sometimes I may be prepared to give up our preferred arbitration option for another acceptable arbitration institution or state courts as part of a compromise on other key terms.
Over the course of your career in-house, have you noticed a shift towards more arbitration or more state court litigation?
I think companies are more and more open to state courts. At least that is the feeling I have. I find this particularly true for contracts subject to English law, where I now very often see English courts. I also see state courts more and more in our customers’ terms and conditions. At the same time, traditional arbitration business areas such as oil and gas and big infrastructure will continue to see a lot of arbitrations.
Can you tell us a bit more about the in-house process of selecting an outside counsel to represent you in a case?
I think the basic rule is always trying to get at least three quotes from law firms for larger (and frankly even medium) matters, and certainly for litigation cases. I have seen this with nearly all the companies I have worked at. The question is more whether you should be very prescriptive with your request for quotation or whether you should give more flexibility to the law firm. Being very prescriptive (for instance, on the fee structure considered, the number of submissions, witnesses, experts, days of hearing, etc.) has the advantage of making it easier to compare the different quotes. But personally, I actually prefer leaving it more open. This allows me to see what is the view of the firm on the case and how well they understand the case and the process, and what options they can offer. For instance, if the case is very fact heavy and the firm’s quote only includes one witness statement, it shows a lack of strategic understanding in my view.
So the quote, in addition to giving you the price, is a way to assess the different firms?
Exactly!
And is there a quality you are particularly interested in your outside counsel having?
I think this is very case dependent. In some cases, you will want a more aggressive counsel, in other cases someone who is more seeking to collaborate. Generally speaking, I think companies want outside counsel who has reasonable positions, but is firm about them. Besides the usual legal thinking, business affinity and outside-the-box thinking are certainly important aspects that we need from our counsel.
Once the case has started, do you think in-house teams should follow the case closely or give more freedom to outside counsel?
That is very case dependent. It also depends on how we are set-up internally. Some companies have dedicated litigation departments, meaning they can have specialists dedicated to certain disputes. Larger cases will always be scrutinised more closely. But sometimes a smaller case will be very important to a local division, and will accordingly be more scrutinised. As a general rule, I think in-house counsel should follow the case, as that is also a learning experience; and outside counsel should keep the company informed of all relevant developments.
Over the course of your career you have probably worked with multiple arbitration lawyers in Switzerland and abroad, have you noticed any difference in how they approach the cases?
I think there has been a lot of evolution on the Swiss side in the course of the past 20 years. Twenty years ago, UK firms were in my view indeed a bit ahead of us in terms of understanding what the client needs. They would give a fast short answer to a discrete question, and provide a full memorandum only if this was requested by the client. Swiss firms on the other hand were much more prone to replying to relatively simple questions with long memorandums accompanied by even longer disclaimers. But this is changing in Switzerland now, and I see a convergence in this respect between Swiss and international firms. When choosing outside counsel, we just look for the right firm and don’t really consider if they are Swiss or not. We actually recently used a Swiss firm for a New York law case (in conjunction with a New York firm).
You mentioned New York law, what is your opinion on the increasing number of international contracts subject to New York law and English law?
Over the course of my 25-year career, I have seen a very big shift from Swiss law to English law. I am not sure whether the same shift has happened in favour of New York law. For instance, I have seen a clear evolution from Swiss to English law for agreements in the Middle East. I think people just choose the law they are the most used to, and this is increasingly becoming English law. Swiss law still plays an important role in business, but maybe more for companies who are looking to subject their contract to a civil law system. I would say that in this case Swiss law is probably still the premier choice.
So should younger Swiss arbitration lawyers qualify in the UK in your view?
For private practice lawyers, I don’t think so. Your expertise still is Swiss law. It would be difficult for a Swiss-trained lawyer to grab English law arbitrations. However, I think that gaining this additional qualification is useful for in-house lawyers. I personally did it and being a qualified English solicitor is of great benefit to me.
What is your view on arbitration lawyers switching to in-house positions?
I remember the manager who hired me for my first in-house position also was very active in the arbitration field. This position actually involved negotiating different large contracts and the manager asked me what my experience negotiating contracts was. I replied that I had extensive experience negotiating settlement agreements [laughter]. I didn’t get the senior project lawyer job that I had applied for, but I was offered a position developing the legal function in supply chain. I think litigators make very good in-house lawyers. You have to deal with a lot of details, make them comprehensible to a tribunal, as well as the client, and more often than not help finding ways to avoid or settle litigation. Ultimately, this is what is required of in-house lawyers – deal with a lot of details, make them comprehensible to the business and find practical solutions.
Thank you very much, Nicole, for taking the time to answer our questions.