Harold Frey is one of the best-known litigators in the market and an expert in disputes over acquisitions and licensing matters.
Harold Frey leads the firm's litigation and arbitration practice in Zurich. He has secured favorable settlements and judgments for public companies and boards, private equity firms and their portfolio companies in high-profile disputes across the country and abroad. Matters have included a wide range of legal issues and industries, with a particular focus on energy, construction, pharmaceutical and financial industry. Harold has extensive experience in all aspects of corporate and M&A dispute resolution.
What made you choose a career in law, and why commercial litigation?
First it was because of the variety of opportunities a career in law would present. But also for some of the skills and abilities that I thought could be well used in the legal profession, including communication skills, critical thinking and a passion for problem-solving. To this day, I enjoy the intellectual challenge that legal and factual issues present and I continue learning about different industries.
After joining Lenz & Staehelin, it was the valuable mentorships and related exposure to fascinating cases that drew me to commercial litigation and arbitration. I had the great fortune to work for outstanding practitioners, including Peter Hafter, Michele Patocchi and later Gary Born (at Wilmer Hale).
As the leader of Lenz & Staehelin's litigation and arbitration practice in Zurich, what types of commercial disputes have you represented clients in – and what were the industries?
Frequently clients retain me for corporate matters (including shareholder actions) and M&A disputes — I have been involved in more than a dozen post-acquisition disputes in the last 24 months alone.
Other key areas of my practice are construction and energy-related disputes as well as disputes in the pharmaceutical industry.
Currently I am involved in several matters for or against states and state-owned companies.
What do clients look for when selecting counsel for high-value litigation proceedings?
The ability to efficiently and effectively manage large and complex litigations and to compose the right team for a case. Apart from ensuring the necessary skills and capacity in the core team to conduct all essential litigation tasks, counsel should be able to draw on the experience of specialists from other practice groups to overcome any litigious hurdles at short notice.
Equally important, clients expect that counsel understand the business and its needs, that they are able to communicate with management on an equal level and that they provide workable solutions, quickly.
How has the role of litigator changed since you started your career?
Cases in my practice have probably become even more complex over the years, often involving regulatory and cross-border aspects. Moreover, a modern litigator’s role is not limited to that of a legal representative in proceedings but may also include a broader spectrum such as business, strategic, political and reputational/communication advice at a client's management level.
How does your experience as an arbitrator impact your approach to representing clients in commercial litigation cases?
Sitting as an arbitrator gives me a different perspective on how certain advocacy tools are used by counsel, including the various aspects of presentations in memorials and oral arguments. It helps me to better understand from the perspective of the decision maker what works, and what doesn’t. And I try to continuously apply that to my own counsel work to further develop and improve the advocacy in our arbitration practice. It also helps me to advise clients as to how arbitrators or judges may assess certain aspects of a case, and ways in which facts or evidence are presented to them. In turn, I think my experience as counsel has also had a positive impact on my approach when acting as arbitrator: As an arbitrator, I certainly do appreciate the amount of work and the difficulties counsel face in their role.
Can you share an example of a particularly complex or high-profile commercial dispute that you have successfully represented a client in, and how your expertise contributed to achieving a favourable outcome for your client?
Together with my team I represented Sika AG in various litigations over the attempted sale of the Burkard family’s Sika participation to Compagnie de Saint-Gobain, the longest and most protracted take-over battle in Switzerland during the last few decades. In its landmark judgment of 27 October 2016, the Cantonal Court of Zug dismissed the Burkard family’s challenge against certain shareholder resolutions which prevented the change of control. Most notably, the court held that the board of Sika was legally entitled to restrict the voting rights of the Burkard family to 5-percent due to its attempted circumvention of a transfer restriction clause in Sika’s articles of incorporation. Pending the appellate proceedings against this judgment, in May 2018 Sika, the Burkard family and Saint-Gobain reached an overall settlement under which Sika remains an independent company and all litigations were terminated. Our successful defence of Sika in the various litigations was a key element in achieving this favourable outcome.
As one particularly challenging and inspiring example, we successfully represented the State of Palestine in a Swiss Rules arbitration against a private investment vehicle that claimed far-reaching extensions of a state concession for a casino and related licenses/permits as well as damages in a billion USD amount. The case involved very complex historical, geopolitical and international law aspects, and it was truly rewarding that we managed to convince the tribunal with our concise case presentation, to our client’s entire satisfaction.
What advice do you have for up-and-coming professionals in the commercial litigation space?
First, the basics: You need a profound understanding of the law, and in particular master the code of obligations (that part is law school). Then, it is practice, practice, practice. Try to become part of a legal team that offers a challenging, inspiring work environment and learning experience. Show commitment but stay modest: watch and learn. What I want to see in a young lawyer is enthusiasm and a steep learning curve.
Of course, you then need to develop a practical understanding of the business, including its needs and challenges.
Throughout your career, keep your willingness and the intellectual capacity to really engage with the facts of a case, identify the key drivers of the case and present the argument in a compelling way — be it in legal briefs or oral arguments.
And at all times, stay curious.
What do you hope to achieve in the future?
Remain the go-to team for complex commercial litigation involving mergers and acquisitions, contests for control, shareholder claims, corporate governance and joint ventures, etc.
Attract the best talent and educate them through training on the job.