Jens Drolshammer/Michael PfeiferThe International Practice of Law: The Swiss Experience

2.26 Jens Drolshammer/ Michael Pfeifer, The International Practice of Law: The Swiss Experience, in Tulane European & Civil Law Forum, Volume 14, 1999, p. 66-99

a) Background

The text at hand is the first joint text of Jens Drolshammer and Michael Pfeifer. The article in its present form was written in May 1999. The article originally appeared at the request of Thomas Cottier in a slightly different form in the reader Der Beitritt der Schweiz zur Europäischen Union, L’Adhésion de la Suisse a l’Union Europeenne (the accession of Switzerland to the European Union (edited by Thomas Cottier and Alvin Kopse, 1998, p. 887-924). This pioneering volume was an early attempt to access the effects of a possible full adhesion of Switzerland to the EU on the Swiss legal system. The volume contains a representative cross-section of about forty articles addressing the challenges of a possible full accession of Switzerland to the European Union. The German title of the article was Beitritt zur Europäischen Union als Herausforderung für die schweizerische “International Practice of Law“? – Lagebeurteilung und Thesesn (Is the Accession of Switzerland to the European Union a Challenge for the Swiss “International Practice of Law”? – Appreciation of Facts and Theses). A purpose of the article is to take into account the most recent pan-European developments in the legal profession and to develop an agenda for enhancement of the international competitiveness and compatibility of the international practice of law in the areas of legal systems, legal professions and legal educations. Although legal professionals in post World War II Switzerland have been more influenced and driven by Anglo-Saxon, in particular American developments, it was obvious that possible adhesion of Switzerland to the EU would have serious impacts on international practice of law as well.

The text has to be read in conjunction with the text by Jacot-Guillarmod 2.22, Le juge national face on droit d’Européen, Perspective Swiss et communitaire, which attributes to both judges and practicing attorneys a constitutional and pivotal role in forming the Swiss law and legal culture in the process of Europeanization.

Michael Pfeifer is a senior partner of an international commercial law firm in Basel and Zurich and a lecturer at law at the University of St. Gallen and Basel. He has also practiced internationally for many years. He is one of the few pioneering Swiss attorneys who have regularly dealt with issues of the legal profession.

Drolshammer and Pfeifer have frequently worked together. They edited the book, The Internationalization of the Practice of Law (2001), which is a collection of articles by leading authors from all over the world in practice and academia dealing with the dramatic changes of the practice of law during globalization. The text is the first and major publication result of Drolshammer’s research visits at Harvard Law School starting in 1999.

Jens Drolshammer is an emerite (2009) professor 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 globalization. He has worked in that context from 1999 to 2008 seven times in fall term as a visiting research professor at the center for European Law Research at the Law School of Harvard University, developing a new personalistic approach in analyzing the effects of globalization on legal professions, 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 text at hand is a scholarly article that appeared in the Tulane European and Civil Law Forum (1999). It is a rare example of a text by Swiss authors published in an American Law Journal.
The text deals with observable trends in the framework of the international practice of law. It raises the issue of whether Switzerland’s experience is relevant for other European jurisdictions. It goes on to establish and argue for the necessity to focus on the International Practice of Law and underpins the observations of the trends by novel aspects of quantification. It addresses as major conditions and trends significant for the topic: the reorganization of the social environment; aspects of mobility, communication and efficiency affecting the economic environment; efforts and obstacles in the international perception and paves the way for a professional environment allowing to form – in sports terminology – a Champion’s League of law firms engaging in the international practice of law.

The second part of the text states theses and agenda items for further analysis of the “international practice of law.” This agenda and future orientation was necessary, since law firms deal with an emerging new field of legal observation and analysis, which at the time, was not yet established in Switzerland as an academic and professional subject. The text then deals with theses and agenda items in the clusters of “legal systems”, “legal professions” and “legal education”.
The conclusion of the text reads as follow:

“Swiss attorneys active in the international practice of law, like their counterparts in EU member states will have to take a path to integration parallel with the business integration paths of their main clients. A quickening economic integration process, even within the EU, will play a greater role than the political process. One’s own plans should in the short and middle-term be determined by the actual integration design. Those who timely recognize the described economical political trends are not indifferent to integration. Among Swiss practitioners, an indifference to the EU could have more important long-term consequences than the full entry of Switzerland into the EU. Anglo-Saxon developments now dominant in the European market, including the Swiss market, are more important than developments originating in the European or Swiss area. These Anglo-Saxon influences exist independent of whether Switzerland joins the EU, remains isolated from the EU, or achieves a mixed form of integration. Swiss international attorneys will therefore have to take into account globalization “à tout azimut.” Accordingly, the more isolated Switzerland or other Continental European countries become, the more likely that global trends for the international practice of law will be missed. The decreasing significance of Switzerland and Swiss law – or of other continental European jurisdictions – should spur participants in the legal business to steer the other way and to strengthen their relatively successful positions.

The authors suggest that the factors attributed to the specific Swiss situation are ceteribus paribus valid for the situation of attorneys in continental European countries, which are all affected by the hurricane called “globalization.” It is demanding for squadrons of European lawyers in their own intellectual and culturally sovereign jurisdictions to stand up against a superior Anglo-Saxon juggernaut consisting largely of American and English representatives of the legal profession.
Time waits for no one, as the artist Remy Zaugg suggests in his artwork “Titanic” displayed in the Swiss Federal Administrative Building, in Berne. The insular Swiss must engage with the outside world: The World – but I – I see you.”

c) Text

You can find a scan (PDF) of the original text here:
E_2.26_DROLSHAMMER_PFEIFER_International Practice of Law

 

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

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