Roberto Dallafior comes highly esteemed by peers as a brilliant litigator who focuses on representing clients in corporate and commercial disputes.
Roberto Dallafior is a litigation and arbitration specialist and managing partner of Nater Dallafior Rechtsanwälte AG, the first dispute resolution only firm in Switzerland. In his 30 years of practice, he has handled an impressive number of commercial disputes in contract and corporate matters, banking and financial services, insurance and reinsurance, (cross-border) insolvency, asset tracing and international legal assistance. He acts both as counsel before arbitral tribunals, state courts and administrative bodies and sits very often as arbitrator (ICC, Swiss Rules, LCIA and ad hoc).
How has commercial litigation changed since you started your career?
Commercial litigation has become much more international. Although there have always been connections to other jurisdictions, nowadays almost all cases handled by me and my team are cross-border with one or several international angles. This adds complexity and often requires a solid understanding of other legal systems. Therefore, in most of my cases we work with co-counsel from other jurisdictions.
What are the main challenges facing litigators when it comes to enforcement of judgments today?
Unlike in the past, the enforcement of judgments in Switzerland has become "commodity work". This is much due to the Lugano Convention and the multitude of international treaties as well as our well accepted conflict of law rules.
What is a challenge, though, is the enforcement of judgments from jurisdictions with a legal system that does not respect the rule of law and where judgments can be politically influenced or judges might have been corrupted.
What qualities make for a successful litigator?
In short: fast thinking, the ability to make judgment calls, the ability to understand the facts and the interests of the stakeholders, the talent for creative solutions, the talent to create a narrative.
A successful litigator needs an analytical mindset allowing handling extensive and complex matters, thereby always keeping a clear view on the relevant aspects of the case. This is the basis to shape the arguments and present the case in a manner that convinces the court or the arbitral tribunal.
Any analysis must include the economic circumstances and consequences. Therefore, a thorough understanding of the economy is key (and often absent).
Lastly, it is of vital importance that the client's needs always remain at the centre of any strategy. Therefore, no matter how complex a case, one must never lose sight of what really matters to the client. In my view, this includes that one should be open to seek pragmatic solutions.
What technologies are having the greatest impact on litigation proceedings?
Videoconferencing has had a great impact. While the technology was there, its acceptance is re-shaping the course of proceedings.
Probably an even greater impact I see from technologies used to get to grips with the analysis of large volumes of documents within a short period. The right software applied correctly can really make a difference, also in terms of cost and time efficiency. The technological progress achieved in recent years is impressive.
How have the litigation needs of clients changed the most in the last five years?
The complexity of disputes has increased in terms of factual background, legal implications of judgments and territorial scope. Transnational disputes therefore require judgment calls because conflicting interests do not allow for one answer that fits all requirements.
What key challenges arise for multinationals with litigation proceedings across several jurisdictions? How can practitioners best prepare for these challenges?
The "rules of the game" are completely different across different jurisdictions. This is best considered as early as possible, for example already when drafting contracts or other relevant documents, including communication. Once the need for litigation arises, a truly transnational team with understanding of the different cultural backgrounds involved must be assembled. Coordination is key.
Another aspect is the safekeeping and efficient locating of relevant information, including documents and know-how. Apart from the fact that disputes usually concern circumstances that occurred in the past (e.g., the conclusion of a contract a few years ago), which for itself can be a challenge to get hold of the relevant facts, the size and essence of multinational cooperations can add difficulties when it comes to the collection of necessary information. Experience in handling cross-border cases for large clients is an asset in this regard.
If you could introduce one reform into Swiss law regarding litigation proceedings, what would it be and why?
The Swiss Civil Procedure Code would require many amendments. My wish list includes (1) the introduction of witness statements as a means of evidence and of cross-examination, (2) the possibility of document production as this establishes greater transparency and thus enhances fairness for all parties involved, (3) the introduction of court reporting, (4) the abolition of the necessity for plaintiffs to advance the court fees as this is often a de facto obstacle for access to justice, (5) the appointment of judges based on qualification and merits by an independent body instead of by political affiliation by the parliament or government, (6) enabling the appointment of independent judges with a background in private practice.
Looking back over your career, what has been your proudest achievement?
I am proud of having been part of building up the first dispute resolution only firm in Switzerland, which at the start was seen by many as a very risky venture not likely to succeed. I am particularly proud that we have done so by implementing the principle that quality is more important than quantity.
For me, an achievement is a case that leads to a change of structure in a particular field of practice or that helps companies and individuals solving pressing problems. Examples from my work would be the abolition of player transfer restrictions in football, the abolition of the blacklist of FINMA for lack of legal basis, the successful restructuring of distressed companies which are now successful and the successful defence against claims that would have destroyed either a company, a career or a person's fortune.