Detlev Vagts/Jens Drolshammer/Peter Murray

2.48    Detlev Vagts, Jens Drolshammer and Peter Murray, mit Prozessieren den Holocaust bewältigen? Die Rolle des Zivilrechts und Zivilprozesses beim Versuch der Wiedergutmachung internationaler Katastrophen, in: Zeitschrift für Schweizerisches Recht (ZSR) Vol. 118, 1999, p. 511-528.

(Litigating the holocaust?- the role of civil law and civil procedure in attempting to redress international calamities)

a) Background

The text is a report which was published as a note in a Swiss law journal (Zeitschrift für Schweizerisches Recht) on a special seminar held by professors of civil procedure and a public event with the participation of prominent members at the faculty at Harvard Law School. The events were inspired by the encyclopaedic knowledge of the late Detlev Vagts on matters of World War II and transatlantic teaching and research on both sides of the ocean, the direct involvement in Holocaust matters of Jens Drolshammer, then visiting researcher and fellow at the European Law Research Center at Harvard Law School and Peter Murray, a longstanding expert on issues of comparative civil procedure. The event took place at the height of public criticism of Switzerland in particular in New England and in leading academic communities such as Harvard Law School.
The events of and the publication are a good example of a transatlantic dialogue even in the contested environments such as Harvard Law School. The events brought together law professors who had various active functions in the Holocaust issue: Arthur Miller was the class action specialist advising professor Bert Newborne, the lead lawyer acting on behalf of claimants in the bank cases, Arthur van Mehren and Detlev Vagts had advised and opined in various class action cases and Alan Dershowitz as a highly visible public individual on numerous occasions had pleaded the cause in public, in particular in the media.
Detlev Vagts was an eminent professor of law at Harvard Law School with particular knowledge of Europe, European history of many of the countries and the various legal and professional cultures of Europe. He was a leading figure of the post-World War II group of internationalists teaching at Harvard Law School. He was a bridge builder, in particular with legal systems and legal cultures in the Atlantic area. He is known for putting the internationalization of the legal professions on the map of the analysis of the legal process of globalization. Detlev Vagts has regularly commented on international sensitive and actual issues, in particular in his role as the editor and editor in chief of the American Journal of International Law. He always treasured his European background and embedded his teaching and writing in a true comparative and transatlantic tradition. Detlev Vagts was fluent in German.
Peter L. Murray is a Professor Emeritus of Law from Practice at Harvard Law School in Cambridge. He regularly was a Senior Fulbright Professor at the University of Freiburg im Breisgau and a Lecturer of Law at the University of St. Gallen in the Executive Masters of European and International Business Law Program. Murray had originally for many years been in private practice in Maine. He is a specialist in evidence and civil procedure. He is a comparative lawyer particularly known for comparative civil procedure and has an institutional relationship with the University of Freiburg, Germany. He is fluent in German. He was an architect and craftsman of many international endeavors – large and small – in Harvard Law School for many years.
Jens Drolshammer is a Professor Emeritus of Law at the University of St. Gallen and a former founding and senior partner of an international commercial law firm in Zurich. He practiced internationally for many years dealing with issues of American law and American legal culture as well. He has co-conceived at the University of St. Gallen a post-graduate masters program in European and international business law. In the past 15 years, he has focused his research activities and writing on the impacts of globalization and americanization on law and in particular on legal professions. He has worked in that context from 1999 to 2008 seven times in fall term as a Swiss visiting research professor at the center of European Law Research at the Law School of Harvard University, developing a new personalistic approach in analyzing the “travels” and the “impacts” of globalization, which lead to the publication of twenty essays in A Timely Turn to the Lawyer? – Globalization and the Americanization of Law and Legal Professions – Essays (2009).

b) Summary

The title Litigating the holocaust?- the role of civil law and civil procedure in attempting to redress international calamities captures the complexity of the issues of the seminar and the contested role of private litigations, in attempting to redress the international catastrophe of World War II in special areas, fifty years after the events. The lead questions dealt with are: Why did it happen? Why are issues of reparation for loss and damages from the international catastrophe of the Holocaust being litigated by means of class actions in American courts? Are class actions in front of American courts the fairest and most efficient way of handling the incomplete and unfinished business relating to the victims of the holocaust? Do settlements and other solutions in these cases bring the victims just compensation and financial benefits? Can the world thereby be convinced that justice is done?
At the outset the text deals with the complexity, the novelty and the historic conditions of the strategies of the claimants. Particularly important at the time of the event were the issues of dormant accounts, slave labourers, insurance policies and other related issues, which suddenly and unexpectedly have been taken up by class actions.
Under part I historic background of the discussion, the text discusses, based upon an internal memorandum of Detlev Vagts, the historic reasons for the fact that these claims originally had not been addressed in the reparation process immediately after World War II, the reasons for this sudden upsurge of public interest fifty years after World War II, and the issues and the reasons for the American Court system becoming part of the anticipated solution of the remaining claims.
Part II focuses on the topic of the efficiency of the American class action system as an instrument, to effectively bring forward claims for compensation in the name of various groups of victims in front of American courts. The text further deals with the question of the basic capabilities of American civil procedure for a comprehensive and final solution to the legal and moral claims for losses and damages of the victims of the Holocaust. The text further discusses the role of government officials and the attempts to influence the results of the settlement negotiations through the use of pressure. The text describes the efforts, which had and still have to be done to redress the losses and damages of the victims of World War II.
After discussing the various actual and potential class actions in various areas the text concludes:
“The discussion of March 23rd at Harvard Law School, the developments in the meantime have shown how important and enlightened, facts driven and mutual understanding inspiring dialogues among specialists and academicians on both sides of the Atlantic are, which focus on finding the best possible solution of the unsolved problems of redressing losses and damages of victims of World War II. “adversarial strivings both in and outside the courts, by parts with sizable economic interest will take us so far”, these issues at hand require the presence of persons who do not have a direct interest in the outcome of the proceedings, who strive for outcomes of proceedings which are fair for everybody involved and concerned and for results, arrived by elementary rules which are observed by everybody. Specialists in history, politics and law have to talk to each other. Only the united effort of all concerned in Germany, Switzerland and other countries of Europe and the United States including the governments, will lead to a satisfactory solution of this human tragedy.”

c) Text

You can find a scan (PDF) of the original text here:
A_2.48_VAGTS_Mit Prozessieren Holocaust bewaeltigen

© Prof. Jens Drolshammer, office@drolshammer.com,  www.drolshammer.net

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