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Swiss Arbitration Interview Series: Pierre Yves-Gunter
What was you dream job as a kid?
I would say becoming a lawyer was always a dream.
When did you decide to actually study law?
I decided to study law around the age of 17. I just felt attracted to the profession. One of my neighbours and a friend of my father was a lawyer. I had several discussions with him as well as with another neighbour who was a teaching assistant at the Law of Neuchâtel University. Those discussions probably convinced me to study law.
When did you start working in arbitration?,
At the time, there was no specialized program for arbitration. Usually, you would study arbitration at the end of the class on private international law. During my LL.M. at Harvard I applied to Lalive Budin (at the time). Prof. Pierre Lalive and Dr. Jean Flavien Lalive gave me the opportunity to start in arbitration. Before all this, my academic interest was medical malpractice – I even wrote my LL.M. paper on “A foreign view on the American medical malpractice crisis”.
Do you have any passions aside from arbitration?
Skiing (I was a ski instructor) and wine collection.
What book are you currently reading?
A book by Henry Kissinger called Diplomacy.
Any favourite travel destination?
I love going south to the Mediterranean. Recently, I really enjoyed travelling with my family to the Seychelles and South Africa. If I had to pick a place I would say the Seychelles.
What about your next travel destination?
It will be Costa Rica.
Is there something that makes you angry in arbitration?
Lack of honesty. For instance, although this is fortunately very rare, some party-appointed arbitrators will sometimes have ex parte contacts with the party that appointed them. This is obviously a very unfair practice for the party that is complying with the rules, because they obviously do not have access to the same inside information as the party that is benefiting from this lack of ethics of the arbitrator they appointed. Another thing that I find tiring (but I would not say it makes me angry as such) are submissions that are unnecessarily too long and repetitive. I think that the involvement of too many lawyers in a specific submission can cause that sometimes.
Have you noticed a tendency of submissions becoming longer in your several years of practice?
Yes! When I started in arbitration in 1991 both the written submissions and the awards were much shorter. It was not rare to have awards of less than 50-100 pages back then. I have actually kept some of these older awards as examples.
What do you think is causing these longer submissions / awards?
I think it is a mix of factors. One of these factors is technology. This might seem trivial, but for instance in the early 1990s you could not copy-paste. Another factor is the size of the counsel teams. This has an impact on the total length of the written submissions. And obviously, if the claimant is submitting a written submission of 1,000 pages, which I have seen in some cases, the other side has to address those points. The respondent cannot then simply submit 20 pages in reply.
However, what counsel tend to forget is inequality of arms between counsel teams and tribunals. Same as 30 years ago, tribunals are still composed of mainly three members. Further, what I have noticed is that if you read a ,1000 page submission, I think it is human, after 300-400 pages, to start forgetting what you read at the beginning.
How do you concretely deal with these very lengthy submissions as a tribunal?
I always ask my secretary to indicate the total number of pages of the submissions, expert reports and witness statements. I then divide this number by 12 or 15 per hour to know how much time I need to get ready for the hearing. For a recent case where I had 10,000 pages to read (without the exhibits), it took me around 6 months to get ready for the hearing.
How do you feel about imposing page limits to certain submissions?
In most cases, page limits are only imposed for the post-hearing submissions. I think they can also be a good thing for submissions related to procedural incidents. Another place where tribunals should consider page limits, with buy-in from the parties, is at the second CMC usually held between the two rounds of written submissions. However, parties’ support is critical.
How do you feel about tribunals giving indications to the parties during the second CMC as to what questions should be addressed / focused on in the second round of submissions?
Personally, I find that very helpful. The tribunal can raise what points it finds need clarification. It is a good occasion for a first substantive dialogue between counsel and the tribunal. This being said, I think it can only be helpful if the three members of the tribunal — not only the president — take time to really read the file before the second CMC.
What do you look forward to when a new case lands on your desk?
I think we are quite lucky in our profession to be able to learn so about so many new industries. As arbitrator or counsel, you should not only have a good command of the law; you also need to understand the industry where the dispute is taking place. In that sense I am always looking forward to working on new cases, in particular when they involve an industry in which I have not been involved previously. I also like encountering new legal issues (for instance, competition law or regulatory issues). The ability to work with counsel and arbitrators from different jurisdictions and cultures is also something I enjoy a lot. As an arbitrator, I think that it is important that you do not adopt a one-size-fits-all approach, and you need to pay attention to the cultural context of the dispute.
Tell us about Gunter Arbitration. Why did you decide to launch the firm?
Well, we actually celebrate our second anniversary today. We launched on April 1, 2023. The date gave me some pause, as I did not want people to think it was an April Fool’s joke, but I ultimately ignored that fact. I think there are two main reasons behind my decision to launch my own independent firm.
The first one was conflicts. I think there is a normal trend in arbitration where basically you start as an associate working as tribunal secretary or on a counsel team. Then you become a partner, where you continue doing counsel work and start sitting as an arbitrator. Sometimes the share of your practice shifts more and more towards arbitrator work. The conflicts then usually becomes a real issue.
The second reason is billing and leverage issues when working as an arbitrator in a large law firm. In large Swiss firms or international law firms, the expectation is that you should focus as much as you can on counsel work, because this is where you can leverage the work of numerous associates. When you sit as an arbitrator, you cannot use this leverage, which can create tensions in terms of profitability.
How do you feel about the growing number of younger arbitration practitioners launching their own firms?
This is a new trend that did not exist when I started out in the 1990s. We always believed you had to be part of a large structure, and that only at the end of your career that you could be independent. It seems to me that the dream of a lot of people in the young generation is to be independent. It is something I feel even through my interviews with younger people. However, I know that remuneration can be an issue, because it is not easy to be profitable from the start.
Do you have any advice to give to people who are starting their own firm, as someone who has done it successfully?
There are different factors to consider. The first one is whether some existing clients will follow you to your new firm. The ideal situation is obviously to start with a regular client for counsel work. This eases the risk of hiring someone to your new firm as hiring associates is important to be able to market yourself for counsel / co-counsel work.
Another factor to consider is what type of work you will be aiming to do. For instance, will you only focus on arbitrator work or will you also do Counsel/co-Counsel work? Will you assist Third Party Funders by issuing Opinions for them? Will you seek mandates as Emergency Arbitrator? Will you offer litigation services related to arbitration (appeals against awards, recognition and enforcement of awards etc)? I think this point about your business model is quite critical.
With respect to arbitrator work, an important point to keep in mind is that most of your remuneration will be paid only at the end of the case. So it is important to make contingency plans to ensure to you have enough funds to keep the lights on.
Overall, I would say it is challenging to launch your own firm without an established client base. I know many independent arbitrators who earn less than what they were earning as an associate in a larger structure. I also know people who are doing extremely well.
Has Switzerland gained or lost attractiveness as a seat over your career?
I think Switzerland as a seat has been reinforced over the years. You can just look at Geneva and the presence of foreign law firms. I think the statistics are also quite positive. If I recall correctly, we are still among the top three countries in terms of total number of arbitrator appointments for ICC cases. However, I think it is true that the landscape has become more challenging for Swiss law firms when it comes to Counsel work. International firms have over the years taken some of the work that typically used to go to Swiss firms (for instance, a Swiss seated arbitration under Swiss law).
What about Swiss law as applicable law to international disputes?
Once again, I think there are different factors to consider. Anecdotally, I would say that 90% of my cases as arbitrator are no longer governed by Swiss law. But I do not think that this is because Swiss law is less popular, it is just the nature of the work when you become an international arbitrator.
An evolution I have noticed is that more and more people heading legal departments in large European corporate groups are lawyers trained in common law. When I started out, civil law lawyers were much more common. This certainly has an impact on the applicable law to international contracts and on the selection of the law firms.
Certain domains have also become fenced off. If you look at commodity trading, English law is almost systematically chosen. In turn, English case law on commodity trading issues has become much more developed than, say, Swiss law. This reinforces in turn the choice of English law. Therefore, even if a great number of trading companies are based in Geneva, it is not that easy to convince them to apply Swiss law.
Do you have any final advice for young arbitration practitioners?
It may sound obvious, but like in every profession, you have to work hard. You need to develop your network (which is taking time). I think it is also very important that you like what you do and be patient. Patience is actually quite critical, because it takes time to be recognised by the market. Gradually, it is also important to have one or two fields of specialisation such as construction, oil & gas, energy, IP etc.