“Given its neutrality and political stability, Switzerland is well-placed to host international commercial courts”

LEADERS LEAGUE: You have worked at several leading law firms in Switzerland and abroad. Can you explain your background a little further and why you decided to create your own firm?

Franz X. Stirnimann Fuentes: I am both a civil and common law-trained lawyer (Swiss attorney (non-practicing), English solicitor and New-York admitted attorney), with legal training and work experience in Switzerland, Spain, England and the US. I am both a Swiss and Peruvian citizen and work in English, Spanish, German, and French. Throughout my career, I have worked as counsel and arbitrator on Swiss legal matters as well as those subject to the laws of other civil and common law jurisdictions, often related to Latin American countries and Spain, while also using the Spanish language.

Over the past 20 or so years working in large Swiss, Spanish, and US law firms, I have developed a significant network of international contacts. I prefer the conflict-free boutique structure over a large (international or national) firm for my work as an international arbitration and litigation counsel and arbitrator. It allows me to work with foreign firms and team up with specialists and experts in other jurisdictions without the organizational restraints of a large firm. That is why two years ago I started my Geneva-based firm, Stirnimann Fuente Dispute Resolution, which specializes in providing international dispute resolution services.

Expect the rare earth metal industry to drive industrial reports as the energy revolution continues

What upcoming developments should we watch out for in the arbitration sector?

The energy crisis is encouraging countries to turn towards alternate energy sources such as wind, solar photovoltaic, biofuels, and hydrogen. A variety of contracts come into play in the context of the energy transition: the construction of wind farms, and the creation of financing agreements for green energy production, among others. The ICC Commission Report on Resolving Climate Change-Related Disputes through Arbitration and ADR is a good primer on the kind of disputes that are likely to arise in the energy sector.

The demand for rare earth metals, such as lithium, is likely to rise in light of the energy revolution. The mining sector is economically important for sovereign states. It is not surprising to see them regulate the mining sector with increasing force. For instance, Mexico has nationalized the exploration and mining of lithium. Similar moves have been discussed in Chile. I expect the rare earth metal industry to drive international disputes as the energy revolution continues.

The tech wars of yesteryear have morphed into a geopolitical struggle as attempts are made to control the flow of information and technology by sovereign states. For example, technologies developed by companies allegedly under the control of sovereign states (such as TikTok and China) have been banned by other sovereign states. Cryptocurrency disputes are on the rise as well. Given the recent financial stresses in this industry, it would not be surprising to see major disputes in the coming years.

The global pandemic, financial crises, and waves of trade sanctions have disrupted the execution of contracts and the global supply chain. This has given rise to a myriad of contract issues including contract renegotiation and termination, issues of hardship, force majeure, and frustration. Different jurisdictions have varying approaches toward remedies for the difficulties posed by unforeseen events. The resolution of disputes arising out of these disruptions depends on the domestic laws and international conventions (such as the United Nations Convention on Contracts for the International Sale of Goods) that apply in the given case.  

ESG (environmental, social, and corporate governance) continues to gain importance in the arena of arbitration, in line with the increasing importance of ESG in cross-border transactions and investments. 

Switzerland is a well-known location for arbitration, and now there is talk of it becoming a center for international disputes, thus broadening the country’s legal expertise on a global level. What are your thoughts on this?  

Any country that wishes to become a hub for international disputes for litigants that have no direct connection with that jurisdiction needs to establish or bolster commercial courts that can handle commercial cases in other languages (particularly, English), appoint judges who are savvy in international matters, and have a sophisticated bar that knows how to service international clients.

Also, the law should make it easier for foreign litigants to overcome forum non-conveniens barriers by either excluding them completely or limiting their application. Such efforts must be complemented by a good network of treaties that allow for the easy enforcement of judicial decisions.

We can learn some lessons from London, which has a highly developed and sophisticated judiciary and international bar, or from France, the Netherlands or Singapore, where initiatives are underway to bolster commercial courts there to handle international disputes. In Switzerland, which now allows setting-aside applications against Swiss arbitral awards to be filed in English before the Swiss Supreme Court, there are also initiatives for the establishment of the English language in international commercial courts. Given its neutrality and political stability, Switzerland, already a well-known hub for international arbitration, is well-placed to host international commercial courts.

Any country that wishes to become a hub for international disputes needs to establish commercial courts that can handle cases in other languages

What advice would you give to a young professional wishing to emulate your career?

It depends on where they come from. If you are an American or English lawyer, it is probably easier to join an international disputes practice; if you are a lawyer from another country, it is more challenging to f ind the right opportunity, but the potential is significant, particularly if you come from a country that has important foreign investments.

English language skills are essential for a career in international arbitration. Additional languages are a nice bonus.

Get solid training in substantive commercial law. Rather than being an international arbitration wizard, understand how contracts work, how they are negotiated, and how local commerce, courts, and regulators work.

Even if you work abroad, stay well connected to your local home market. Either you will return there at some point, or it will be the source for your business. Do not become a complete ex-pat. If you are from a jurisdiction with growth potential, it may be better to move back and become a rising star there. It is possible to make an international career at home. 

The important thing is to stick to the international law practice in your own jurisdiction and not get bogged down with municipal matters.

Do not lose contact with those law school classmates of yours who did not go into arbitration. They may go in-house, become transactional lawyers or take other paths such as the judiciary one. Each is a vital contact in building part of an effective network.