Introduction

“The world – but I – I see you” (Remy Zaugg)

Introduction

The editor is the pilot, driver or captain of the users and readers of this Anthology of Swiss law and legal culture. In the following preliminary remarks the editor sets some flags on his guiding mission.

a)     The Anthology sails under the Leitmotiv “See it fresh – see it whole – see it as it works”from the American lawyer Karl Llewellyn. This stresses the importance of facts first and with respect to the Anthology texts first. “See it fresh” challenges us to see in an open, undisguised and new way; “see it whole” means we should see it impartially and holistically and – this is key to the whole text oriented and text based approach – “see it as it works” calls on us to understand the functional requirements and operation of the legally relevant social reality in the legal process of globalization. Using this Leitmotiv as a metaphor, the globalization part of the Anthology is a contribution to the weaving of a complex carpet of cultural encounters and exchanges in law and legal culture before and after f World War II .

b)     The Anthology situates the selected texts as objects trouvées in their broader context from a dynamic and evolutionary perspective in primarily dealing with the emerging new world order after World War II. The Anthology attempts to increase the awareness and the accessibility of legal and cultural knowledge. It caters to a variety of potential uses common to modern knowledge generation and knowledge management in academic writing. The Anthology has in mind the idea and vision of a college of international lawyers and their networking potential under the aspects of comparability, compatibility –and above all of interoperability. The Anthology is a starting platform of knowledge as a particular mis-en-scène of the legal dimensions of the historic processes particularly after World War II. It is meant to contribute to access, open up and to establish what Aby Warburg calls a “Denkraum” (thinking space) for further academic and practical legal work. The globalization part of the Anthology does not pretend to present a theory or a theoretical framework of structured sets of information. It is an organised aggregation of information and has the primary function of a tool facilitating further observations and analysis of the topics; it therefore is situated in the toolboxes of “skills” and not in the “salons” of lofty legal sciences which have obviously missed some – or many? – of the boats in the early – and timely – observation and analysis of the upcoming dramatic and far-reaching changes of the legal process of internationalization and globalization in Switzerland. The theoretical discussion of law and legal practice is a “reality science” as defined by May Weber. The specific features of thought and action in legal processes such as Americanization, Europeanization and Globalization are often dependent, at the meta-level, on a specific mindset open to globalization; we coin the term – a globalization – adequate mindset – which applies a motivational position that favours the exploration of the legal process in globalization and a motivational drive inspired by curiosity.

c)    The editor came to the conclusion that in view of the novelty and complexity of the processes and the texts found and in view of the constraints of the specific structure chosen and currently unknown possible uses in a modern electronic platform of communication that the writing an introduction as a foundation was advisable and even necessary. Because of the complexities of the processes of Americanisation, Europeanisation and Globalisation and particularly due to the fact that the Anthology includes works right up to present-day, the situation and the role of comments and introductions have a different and more pressing function than in other traditional parts of the Anthology. The totality of the editors comments in English therefore are conceived as a stand alone text. In that context, this introduction plays a key role in establishing with the reader certain basic informations on the topics and the method of treatment of the topics. The introductions as a module are conceived as represented in the framework of the Anthology, as stand alone texts as well.  The introduction is a mere non-footnoted description and a narrative of the process of Globalization by the editor for the purpose of this Anthology.

d)    The access of the reader and user to the accumulated materials may conceivably be selective in various ways. The reading of the introductions to the three parts for instance may give the user a general overview as to how Switzerland fared in legal matters after World War II and what the processes observed and analyzed are. The reading of the “background” and “summary” of the texts may convey a first and standardised insight into the content of the sequence of the texts in English irrespective of the texts original language. The selective study of bibliographical references might lead to systematic further research and legal analyses. A study limited to the study of the biographies of the authors might give a revealing insight into the life and the education of the persons, who penned the texts contained in the Anthology and who were lawyers and professionals sailing in the winds primarily of post World War internationalisation.
These varieties and variants of suggested partial and selective uses in this notion of stand-alone comments of the editor should not detract from the fact that the texts as such and as a whole are at the centre of the Anthology and are to catch the interest – this time – of the readers.

e)        In this autonomous notion of the comments of the editor there are a series of specific reasons for a stand alone role of the introductions to the parts of the Anthology as follows:
The choice of a new and different method of selection and description in the Anthology by establishing a process orientated perspective is better understood with an introduction. In view of the fact that the Anthology is a work in process, the transparency of comments thereby established in the introductions are a key element to communicate the method and the content of the endeavor; in addition the fact that a fully developed method under the heading of “how does law travel”, as the pivotal element of the selection and the description of the phenomena, does not yet exist, in particular merits comments and an introduction. The fact, that the rigid structure spreads and disperses the knowledge found in the backgrounds, summaries, texts, bibliographical references and biographies calls for a reintegration of the essential aspects in the form of holistic comments and introductions . The limiations of the primarily text orientation of the Anthology requires a re-integration complementing the texts with remarks from professional lawyers and shapers of legal reality and institutional environments breeding the respective legal creativity, if one wants to creatively deal with broader concepts of legal culture beyond law. In that context it has to be noted, that in Switzerland the discipline of cultural studies as part of modern disciplines of social sciences and humanities unlike in anglo-saxon academic environments is not yet fully developed; this particularly holds true in dealing with the issue of legal culture in the discipline of law. This enlarged field of observation and analysis can only be grasped by comments in the Anthology and introductory texts. The same holds true as regards to the inclusions of a modern multi – and transdisciplinarity including neighbouring social sciences and humanities which are relevant to law and legal culture.

As stated above, the comments and introductions are autonomous and are stand alone texts in the form of a non-footnoted narrative. It is legitimate and necessary to attempt to make accessible to the reader and user the preliminary results of the findings of the work of the editor. We have to accept that in various areas a full fledged academic knowledge does at the time of the making of the Anthology not yet exist however further research may shed more light on those findings.

f)    The Anthology is marked by the professional education and professional work of the editor as a practitioner in international legal practice and as a professor in academia. Jens Drolshammer is an Professor Emeritus of Law at University of St. Gallen, Switzerland and a founding partner of Homburger Rechtsanwälte, an international commercial law firm in Zurich. He practiced internationally for many years, dealing with issues of European and American law and legal culture. He is a Swiss born citizen of partially Norwegian and German origin and spent his educational and professional life in post World War II and post Cold War times. He studied law at the University of Zurich, Geneva, as well as at Michigan and Harvard Law School.

He spent about an aggregate of three years in the Swiss army, mainly in strategic matters and has been a member of the International Institute for Strategic Studies for more than twenty years. Drolshammer has taught at the law school of the University of St. Gallen for more than thirty years, primarily on American law and American legal culture and on complex transactions. From 1999 to 2008 he has been a visiting research professor at the Center for European Law Research at Harvard Law School mainly focusing his projects in the area of globalization and the americanization of law and legal professions. Therefore and faute de mieux he is also an author of various texts in the Anthology.

The editor presently as an emeritusis an individual entrepreneur without a university chair, secretaries, scientific assistants and research grants. He revels in the lower surgery of generating tools to better grasp the dimensions of the new world order that took root following World War II and after the end of the Cold War by looking at the processes in the areas of Americanization, Europeanization and Globalization of Swiss law and legal culture. He shifted attention and work into this craftsmanship of lawyering after having realized that the conceptual, terminological and scientific suboptimalities and the limits of dealing with the “travels” of law and “impacts” of foreign legal cultures on the sea of Globalization are – as Americans say – “an elephant to big  to chew”. In this search for tools the editor had to constantly strive to juggle between search and vision, because he realized and is convinced, that knowledge of law and legal culture in its historic and international dimensions is a part of the general education of a national or international lawyer in present-day as it always has or should have been. The editor does not regret to have worked on this tool as a “lonely longdistance runner” and has read more than four thousand pages of preselected texts in order to attempt to find a working structure and a tool kit to better understand the processes of Americanization, Europeanization and Globalization of Swiss law and legal culture. Without this search of the phenomena and the corresponding conceptual bricolage and collage one is lost with his one-man-kajack on the sea and in the fog of Globalization.

g)     The part Globalization of Swiss law and legal culture of the Anthology uses the leitmotiv of the words on a planned although unrealised  wall drawing of the Swiss artist Rémy Zaugg “The World – but – I see you”. The insular is engage with the outside world, – even in Switzerland. Besides the parts on Americanization and Europeanization, the part on Globalization uses again the idea of “travels” and “impacts” of law and legal culture as a guiding principle to describe the complex and underresearched legal processes. The metaphorically rich and imaginatively provocative guiding principle on analogy takes its lead from the essays of the literary critic The essay  Edward Said namely “Traveling Theory” and “Travelling Theory Reconsidered..As described below, the process of Globalization adresses a recent stage and phase of the time after the Cold War. In this part the Anthology embraces international phenomena in so far as they are evidenced in texts, beyond the processes of Americanization and Europeanization.

1.1 Purposes of the part on the Globalization of Swiss law and legal culture and its relationship to the parts of Europeanization and Americanization

The general purpose of the Anthology is to make significantand representative texts on Swiss law and a legal culture accessible to an non-Swiss as well as Swiss audience. The Anthology focuses on legal texts – a specific and narrow aspect of legal culture – and to some extent on lawyers and legal institutions as important aspects of a broader concept of legal culture The Anthology aims to cover the time period from World War II up to the present-day (June 2013). It provides evidence of the dramatic and far reaching internationalization of the legal process driven by new stages of Americanization, Europeanization and in particular Globalization, which is a more recently noted phenomenon. The latter part attempts to catch the broader lines of “travel” and “impacts” of these developments on Swiss law and Swiss legal culture beyond the texts selectedby placing particular emphasis on the question how Swiss institutions and authors dealt and deal with the legal process of globalization.

The categories of Europeanization, Americanization and Globalization refer to neighbouring and overlapping areas and processes. Americanization, as a major factor in this historic development, has a strong direct and indirect impact and is not unrelated to the factor of Europeanization.

Globaliza¬tion, as an overarching and overlapping legal process has a significant influence on the evolution of European law, which in turn is influenced by American law. Again, the process moves across time and space as American law has an influence on Swiss law and Swiss legal culture as part of the process of Europeanization. Beyond Americanization and Europeanization, Globalization is the most evident and most important general legal process of “travels” and “impacts” on law and legal culture in Switzerland. The concept of Globaliza¬tion goes beyond the concept of Americanization and Europeanization and attempts to grasp the internationalisation of Swiss law and legal culture on a meta level from a general¬ized perspective – a global perspective – as part of the phase of globalization that has taken place following World War II and after the Cold War. The expression, globalization is not used as a technical term, it attempts to grasp aspects of “travels” and “impacts” of Swiss law and legal culture by the process of Americanization and Europeanization. Since a generalized and unified methodology of describing phenomenologically and analysing the “travels” and “impacts” of the process of globalization does not exist in Switzerland yet, we use a selection of process – and globalization – adequate methodological tools and primarily attempt to observe and to understand the legal process of globalization. The novelty of the phenomena and the lack of general observation and analysis require a stand alone introduction.  The Anthology intends to in¬form as to how Switzerland as a so called “small” state (Kleinstaat) has fared after World War II and after the Cold War in times of a fundamental internationalisation of the historic, political, societal and legal processes associated with an increasing globalized world. It addresses not something other but something more and something beyond – again an “elephant too big to chew”, as the Americans say,in the “new world of law in globalization” (Mathias Reimann). Legal sciences seem to be at an early stage of a conceptualized grasp of the legal processes of globalization. The criteria of observation used in the part of Europeanization and the part of Americanization in looking at “travels” and “areas of impacts” have to be modified selectively and sectorially in this part, yet again.. Contrary to the part on Europeanization, these “travels” and “impacts” have not developed in an evolving structure part of a political design respective to the state of Swiss law and legal culture of the realisation of the principle of integration of the European Union which, as described in the introduction of Europeanization, is realised mostly by cooperative and contractual legal instruments. Contrary to the methodological observation in the chapter on Americanization the “travels” and “impacts” of globalization are less driven by political and power considerations directly or indirectly focused on specific aspects of Swiss law and legal culture such as banking secrecy, tax evasion, corruption, money laundering as well as money of potentates and a generalised strategy of extraterritorial applications of laws on set of facts outside of the United States.

In that context it finally has to be recalled, that Switzerland historically especially has a globally organised and globally integrated economy active far beyond the geographic areas of the United States and the European Union. Switzerland therefore has followed and still follows a foreign policy of universality which in turn brings it into contact with many more jurisdictions – and international and regional organisations – as a result of the nature of the interdependence of Switzerland with the world at large. The influences of the legal process of globalization also to a considerable extent differ from the influence of the European Union and the United States, which often are mainly exercised together with other jurisdictions and in international organisations in areas particularly relevant to Switzerland. In these traditional international organisations such as the OECD and WTO and more recently G20 and the Forum, Swiss law and legal culture is exposed to an ever-growing influence of international “standards” and “soft law”. Swiss law and legal culture moreover are affected by a series of international organizations in particular in these industries in which more important interests of Switzerland are affected by the areas of the legal process of globalization. Switzerland often is actively involved in the international law making process and has participated in taking note, working with and even contributing to these parts of global law. In the more critical of those fields some recurring patterns of behaviour are notorious: Switzerland usually is first taken aback, then starts to do its homework and sometimes even ends up as “best in class” (Mark Pieth). This is the case in areas such as banking secrecy, certainly money laundering, and corruption as well as more recently money of potentates. Further analyses may have to help to find a globalization – adequate methodology of observing and then analysing the “travel” and “areas of impacts” of the legal process of globalization.

1.2 Swiss law and Swiss legal culture faced with the new phase of globalization beyond Europeanization and Americanization

Globalization of economic and cultural relations due to the advances of communication technology and international trade in goods and services has been of considerable impact beyond the influence of European law (Europeanization) and of US law and legal culture (Americanization). The influence induced by the process of globalization, however, is more difficult to trace and more diffuse and problematic to identify. Partly it is caused by processes in international economic law, in particular the body of law of the World Trade Organization post the Uruguay Round of multilateral trade negotiations completed in 1995, and efforts induced by the G-20 following the financial and debt crisis, in particular in the field of financial regulation and banking supervision. These developments tend to stimulate harmonisation of domestic law, and thus influence the law and legal culture of all countries alike, including Switzerland. To a certain extent it reflects enhanced tensions among different legal systems and the need to address conflicts of law. Globalization to some degree exerts factual and cultural influences  which indirectly influence the law and legal culture of a country. The internet and instant accessibility of information beyond borders is of particular importance in this context.  It is also here that a clear separation from Europeanization and Americaniation cannot be made as the influence of these legal cultures are partly driven by globalization themselves. Switzerland – “the world – but – I see you” – is part of the legal process of globalization and therefore these observations per definition are related to Switzerland as well.
For the purpose of the broader view of this introduction the legal process and the impact of globalization on law and legal professions requires a new global perspective – Globalisation – adequate perspective – as a prerequisite to understand the categories of “travels” and “impacts” of these legal processes.

Working definitions of globalization
In this sketch drawn with a rough brush we use the following working definitions for “globalization” as a process: a progressive interlinking of the world economy as well as the internationalization of all spheres of life of the economic, political, social and culture relations. Globalization is not only driven by economic but also by political, technological as well as social and cultural factors. It is motivated  by revolutionary technical achievements in transportation and telecommunication as well as by innovation within information technology. The process leads to a manifold and selective Iinternationalisation of the national legal systems, the legal professions, and the legal educations from a global perspective.

Besides and beyond debates on the notion of “globalization” a consensus has been reached that two approaches and concepts have become generally accepted (Ulrich Beck: What is Globalization? First published in Germany, Wo ist die Globalisierung; 1997, first published in 2000 in Polly Press, reprinted 2000).

The first approach perceives globalization in the sense of a growing interconnectedness manifestin an increase of networks, interdependencies, transboarder movements, identities and social networks. The second approach emphasises the undoing and unraveling of time and space brought about by new communication. More individuals behave economically internationally, work internationally, travel, consume, cook internationally, the kids are educated multilingual, education happens in a generalised nowhere of TV with political identities and loyalties no longer adhering to the rules of national loyalty – managed legalisation (Beck).For the following reasons globalization in theory is accepted as irreversible nowadays: the geographical expansion and increase of density of the continuing international trade; the global networking of finance markets and the growing power of transnational cooperation, the ongoing revolution of information and communication technology; the universal demands for human rights; the stream of images from the global culture industries; the emergence of a post national, polycentric world; the unquestionable world poverty; the issue of global environmental destruction and the transcultural conflicts in one and the same place (Beck).

The “Brave New World of law in the age of globalization”
Several of the texts included under 3. reflect aspects of a “Brave New World of law in the age of Globalization”. The editor will identify these influences in the respective parts on “background” and “summary” of those texts.

A key dimension of this process of globalization is a corresponding legal process, in which globalization brings about changes of a fundamental nature in law and legal culture.
According to Mathias Reimann the “Brave New World” of law in the age of globalization is characterized among others by four elements: the manifold coexistence of overlapping and sometimes contradictory legal systems (pluralism); the growing influences of the catching of legal reality in databanks (digitalisation); the growing dependency of law on political decisions and economic developments (loss of autonomy) and the progressive giving up of terminological order in favour of analyses in context of issues (the de-systematisation of system)(discussion paper for an encounter, among friends held at the editors The Salon, see www.drolshammer.com). These trends leading to a pluralisation, digitalisation, loss of autonomy and collapse of the notion of system in the age of globalization generally conflict with the European legal tradition of which Switzerland is a part. Since  the beginning of the modern age, European and Swiss legal tradition has emphasised the unity of the legal order as portrayed in text books teaching the autonomy of law in the face of politics and business and clear definitions and systematic thinking. These trends in the “Brave New World” of law in the age of a new wave of globalization, according to Reimann, tend to reflect the current legal situation above all in the United States, which from the outset has been dominated by pluralism, a more associative organisation of material, a highly politicised understanding of the law and a focus on concrete issues.

Reimann holds the controversial view that American jurists, or rather jurists trained at American law schools, deal more effectively with the current legal world, and particularly with the effects of globalization than their continental European colleagues. This is said to be mainly because the whole structure of American legal thoughts is a better “fit” for present – day law, at least in Western industrialised nations. This United States legal thinking is said to be in harmony with today’s world, rather than in conflict with it. Reimann believes that jurists educated in the United States, have a head start on their continental European colleagues and others brought up in the civil law tradition. The differences between American and continental European legal thoughts is seen as differences between the “modern” and “post modern” world views on both sides of the Atlantic. Reimann is talking not about current trends but long-term structures with deep historical roots. In other words a jurist who thinks of himself as “post modern” is more at home in the post modern legal world than one who is still straight jacketed by “modern” thought processes. This view is controversial as well- “if these considerations are true, then they also help to explain, no more and no less, why international legal practice today – almost worldwide in this introductory overview – is primarily American” (Mathias Reimann).

Elements and key drivers of the legal process of globalization
In the following remarks the editor uses the findings in his own writings.

The key drivers of the changes in the legal process of gobalization – (here primarily exemplified with respect to the legal professions involved (see the texts by Jens Drolshammer, text 2.12 and 2.20) – beyond the general phenomenon of globalisation as described above are: Those drivers have primarily been developed in the context of the writing on the internationalisation of the practice of law. They of course can and have to be analogised and extended to other professions and relevant areas in the legal process of globalisation.
Legalization The legal process of globalization has changed the role of law and legal professions substantially because there is a growing legalisation, a growing expansion of law, in the most diversified manner. The applicability of different national legal systems based on the territorial principle moreover has increased the significance of the creation and planning of legally enforceable relations in a neo-liberal context. The spread of information means, the behaviour of international actors in globalization is characterized by an increasing tendency for goods – from an economic perspective – and chattels – from a legal perspective – to be essentially replaced or complemented by information. The approach to the international practice of law, which seeks to take account of the situation will require an integrated approach to communication, which in turn is inherently tied up with information as well as with the modern concept of knowledge management. A driver of the legal process of globalization is the growing interdisciplinary approach. The increasing complexity, specialisation and division of labour has brought about a new interdependence of separate disciplines, which must be integrated both in the practice of and the training for the international practice of law and law in general. The ability to understand and integrate this new inter- and transdisciplinaryity is of great importance.

Professionalisation as a driver means, that changes in the international practice of law in the legal process of globalization are characterized by professionalisation in several respects.Market orientation and commercialization of the legal process of globalization of international law practice is characterized by a fundamental change of perspective as far as providing legal services to private and public actors is concerned. In this case, there is a change of focus to the market and competition (7).

Specialisation means that the huge growth in certain areas of law and an increasing number of legal issues is leading to a corresponding specialisation in the international practice of law in the legal process of globalization, which is having a fundamental impact on professional roles, career prospects, organisation of law firms, fundamental entities such as legal administrations and courts, provision of services by private and public actors and, also, on legal education. The trends to a specialisation in the international practice of law have certain technocratic elements, which sit uncomfortably with the simultaneous demand for judgement – in providing legal services.
Diversification of content, techniques, and style in legal services The need for a conceptual framework remains when we look at the changes in the provision of legal services as such. The change in respect of content, techniques and style in legal services in the international practice of law is marked. The following elements and aspects are simply characteristics of this change and are not intended to be generalisations within any theoretical foundation. The changes include a relative change of emphasis from an activity based around court and administrative decisions to one focused around planning and structuring. Perspective shifts from “content to process”, from legal advice to the solution of legal problems and the treatment of issues in a wider context. There is  substantially increased significance of the communicative dimension in dealings with law, the increased need to work together with other service providers in an integrated and interdisciplinary form, and the development of strategic legal advice as a consequence of new management methods and new legal developments. There is also a growing use of information technology. New skills and tools are being developed in the methodology for the solution of legal problems. There is a growing significance of emotional intelligence in the delivery of legal advice, as well as a growing importance of attitudinal elements, such as legal ethics. Overall, there is a continuation of the trend to move from legal consulting to legal management and from legal management to business consulting.

The growth in numbers, geographical reach and specialization of international lawyers and the international practice of law, together with the above-mentioned professionalisation and commercialisation in the legal process of globalization, effectively mean that the professional life of an individual is more and more carried out within the organisational context of a company. The trend for international law firms to become professional service firms means that organisational principles such as “one firm”, “one-stop-shopping” and “top-down management” are threatening the effective survival of the “partnership principle” and bring about a marked shift in focus from the persons to the organizations.

Education and training in the international practice of law is being adapted “from a global perspective”. This is essentially leading to the internationalisation of education and training. University training is being supplemented by lifelong learning; new networks are springing up of those involved in legal education and further professional training in the international practice of law. Cognitive intelligence is being supplemented by emotional and cultural intelligence. Knowledge skills are being contrasted with activity skills; intellectual, commercial and cultural skills and being contrasted with ethics and attitudinal skills. New technologies such as bio-technology, material and information technologies, call for general and interdisciplinary knowledge of aspects of life either already subject to, or about to be subject to, legal regulation. This trend makes for new professional roles such as the international lawyer as facilitator, as enabler, as process and information engineer, etc.

“Tendency for Americanization” – was and remains a key driver of the legal process of globalization. The international practices of law are now essentially characterised by a tendency for Americanization and beyond that Anglo-Saxonisation. The material seeds of the most recent spread of American legal culture still mark a growing dominance by the United States in a world subject to globalization. Apart from influencing various aspects of foreign and security policy, the economy and the information society, this growing US dominance still has a strong influence on the law, legal education, and the legal professions in the legal process of globalization. This trend is increased by the spread of the English language as the lingua franca in international relations and international trade as well as by the spread of American management methods in both the management of organisations and in management consultancy. There is a growing consensus that these developments require a European response.

As said above, the description of the drivers of globalization effective for legal professions of course have to be analogized and extended to other professions and relevant areas of the legal process of globalization.

1.3  “To take it global” shows a new legal mindset to observe and analyse the “travels“ and “impacts” of the legal process of globalization on Swiss law and Swiss legal culture – a globalization – adequate mindset

The search and the analysis of the texts in this part on Globalization and the former research and writings of the editor have led him to believe that the process of “taking it global” show important paradigmatic shift in legal observations and analysis. This has to be included in this  introduction. We have to realise and accept that this phenomenological and analytical endeavor “to take it global” requires a different and a new mindset of the participating observers and analysts with respect to law and legal culturel. This analysis should accept, as Peter Sloterdijk suggests (Peter Sloterdijk, im Weltinnenraum des Kapitals, Frankfurt am Main, 2005), that globalization confronts us with a new absolute imperative, that for the first time mankind no longer is an abstract concept but has a name of a living community (Verkehrsgemeinschaft). The same holds true of Jeremy Rifkin’s, paradigmatic trend and turn to an “empathic civilization” (see Jeremy Rifkin, The Empathic Civilization, 2009).

The approach to deal with “the travel of ideas” and the “impacts” of the legal process of globalization has to reflect – and does reflect in a series of texts included in the  Anthology– these changes, which have arisen from an interdisciplinary perspective. The changes, which have been advanced by neighbouring scholarly thinking about globalization, are relevant to the thinking on the legal aspects of the process of globalization as well. This complements and goes beyond taking into account the major consequences of the legal process of globalization of Mathias Reimann’s “Brave New World” of law in globalization., The exploration in the “reflection space” requires a new legal mindset to grasp the legal process of globalization and to adequately observe and understand it. The editor calls this a globalization – adequate mindset.

Elements of a Globalization – adequate mindset for seeing and understanding globalization
We speak of an important element of a methodology to the observation and the analysis of “the travels” and “the areas of impact”  We must also accept that it isance of the necessity to include a new “globalization adequate” mindset is of key relevance and as a precondition to understand globalization’s influence on Swiss law and legal culture. This area is underresearched with what constitutes a “globalization adequate” mindset and methodology , in our view, not yet developed. The editor in his publications usually refers in that context to the books of Howard Gardner Five Minds for the Future (2006), who introduces categories for a globalized mind such as the disciplinary, the synthesizing, the creating, the respectful and the ethical mind. Gardner asserts that we live in a time of vast changes that include accelerating globalization, mounting quantities of information, the growing hegemony of science and technology, and the clash of civilisations. Those changes according to Gardner call for new ways of learning and thinking in school, business and the professions. In Five Minds for the Future, Garnder defined the cognitive abilities that will command a premium in the years ahead in the continuing process of globalization:

These aspects of a globalization – adequate mindset – as evidenced in the texts under 3.- directly influence aspects of the mindset necessary to understand and write about the legal process of globalization. Books on the corresponding establishment of a globalization – adequate use of interdisciplinary authors are to be found in Jens Drolshammer’s essay “The Path to a Turn to the Lawyers” – Amerikanische Konzepte und Ideen, für einen Blue Print “to take it global” in A Timely Turn to the Lawyer? – Globalisierung und die Anglo – Amerikanisierung von Recht und Rechtstexten, Zürich / St Gallen – Baden – Baden, 2009, p. 863 ff.

Elements of this paradigmatic change to a globalization – adequate mindset to observe and understand the legal process of globalization, according Jens Drolshammer in The Global Groove of the Harvard Yard – Personal aspects of the person in the Globalization and the Anglo – Americanisation of law and legal profession (see text 2.42 Americanization) are;
A motivation of legal thought and action in dealing with globalization marked by an exceptional curiosity and openness, which is bottom-up and facts-and issue-driven, and which focuses on legally relevant realities and which is axed on reality and per-sistent in the observation and investigation of this reality – “see it as it works”.

An equal and balanced incorporation of “behaviour’ and “effect” alongside the “be-ing” and “acting” of legal actors – all embedded in a special connection between “knowledge” and “activity”
A conscious positioning of legal thought on a meta-level and a deliberate choice of a global perspective and associated with this an explicit making of globalization an academic topic
An understanding of the relevant reality as soon as possible after the event in the le-gal process and a striving simultaneously to tackle and describe change in this legal process as early as possible.

A situational and issue-related use of theory as the foundation of a theoretical con-ceptualization for instance of the New International Lawyers from a global perspec-tive.

A reality based choice of an appropriate interdisciplinarity between different findings of the humanities and social sciences for instance in the concretization of the aspects of person, situation, position and profession of the New International Lawyer.

An academic openness to raise the issue of change from “modern” to “postmodern” in the history of ideas, including the effects of globalization on law and the legal professions, and to include this within an overall perspective.

An imaginative and optimistic “mindset” concerning other key ideas and visions for the future roles of “international lawyers” in globalised international practice – from the “invisible college of international law” to the “visible college of international law” and the “visible college of international lawyers”.

These eight findings relate to dimensions of a new and different mindset which have become a part and a precondition of a “globalization – adequate minset” exploration of the legal process of globalization. These findings are rooted in an especially globalized, open “mindset” in a “motivational position” that favours the exploration of legal practice, and a “motivational drive” inspired by curiosity. They are, as a sidermark, at the origin of a significant attraction of American soft and smart power of academic thinking and research in grasping the process of globalization. These eight findings moreover are sources that facilitate the access to the “reflection space” of a personalistic conceptualisation of the new world of international lawyers which is likely to be more adequate and flexible  to respond to the complexities of the legal process of globalization than an approach based on “systems”.

For the reader and user we advise to take note of the following particularities evidenced in the texts under 3. below
This world of law and lawyers is not flat (Thomas Friedmann).

Curiosity and mindset so far have been less developed in legal theory and culture, unlike in related social sciences and humanities. While to a large extent national laws and national legal cultures are still the basis of the way to approach globalization, the proposed new mode of observation and description –observed in certain texts of the Anthology already mentioned – is located on a meta-level compatible with globalization. The observations and descriptions on that meta-level take place from a different and new global perspective. Two remarks are important if one “takes it global”. Lawyers in general underestimate the difficulties of bringing about the prerequisites of these predispositions in favour of globalization as part of the mindset: and this conscious choice of level and perspective creates other and wider conditions and opportunities for access to the legal of globalization process.These two steps represent a deliberate move away from the more traditional and limited perspectives. This makes it easier for the phenomena of the legal process of globalization to be observed and analysed in a global context.

1.4 Types and examples of “travels” and “ impacts” of the legal process of globalization on Swiss law and Swiss legal culture

The following passages are a sketch of the legal process in the timeframe covered by the Anthology under the aspects “routes of travel” and “areas of impact” of the legal process of globalization on Swiss law and legal culture. We first identify elements, which are different from the methodologies applied in the parts on Americanization and Europeanization. They should help to better understand the cbackground and the texts themselves of this part of the Anthology.

The phenomenon of globalization as already stated is broader and deeper and not subjected to a political finality. It is essential and important to identify “routes of travel” and “areas of globalization” of this broader and overall process of globalization and at a later stage, extend the methodological toolkit in that respect. The chronology and the content and style of the texts in the part on Globalization in the Anthology makes one wonder on the timelines of the emergence of the new globalization – adequate mindset necessary to grasp the change in the new world order after World War II. Some biographies at least show an early and sophisticated exposure of the “new world of law of globalization” which are an integrated part of the holistic view proposed.

With regard to additional dimensions concerning “routes of travel” the following may be highlighted.
With regard to globalization, the “travels” in globalization are part of a communication dimension of the international legal process, which is rooted in the pervasive use of the means of communication in information society in the realm of law and legal culture als well. The “travels” have to be viewed as an essential part within a “global – legal – village”, in which “the media – is – the message-diffusion” of the legal process is instant and all encompassing. Connected therein is the rise of the function of perception and reputation in legal matters as a new and effective reality of for the dealing with “travels” and “impacts” of the legal process of globalization. In this context, the strongest network in globalization is the English language, the lingua franca of law and lawyers of the “travels” and “impacts” in globalization. In the foreground and sailing the winds of globalization in general are international lawyers as legal actors in various functions such as lawyers in private practice, heads of legal departments of enterprises, justice and regulatory officials as well as members of courts; this opens an option to move away from or  to compliment a system based approach to a person based approach in grasping the legal process of globalization  (see Jens Drolshammer, text 3.20 Americanization).The subcultures of personal legal actors are linked and operate in complex international networks. This constitutes a new modern network theory based phenomenon of “travels” and “areas of impact”.  The diffusion of the legal process of globalization has spread beyond traditional concepts of “legal adaptations”, “legal receptions” and “legal transplants” in the area of “legal travels” and “areas of impacts” in globalization
The perspective in this part of the Anthology is geographically broader and brings new and other national, regional and supranational regimes of legal cultures into play, which interact simultaneously and bring into the foreground new international organisations as actors such as OECD, WTO, certain organisations of the United Nations. International conferences such as the Hague Conferences, organisations such as the International Red Cross, and specialized international public law based conferences The legal process of globalization has lead to a dynamic internationalisation of the professions of lawyers, the professions of enterprise lawyers, the professions legal and regulatory officials, and of judges as well as the academic world observing and analysing the legal process of globalization The professional organisations of these legal actors have been internationalised, such as the International Bar Association (IBA) and organisations of corporate counsels, the Institute of Financial Accountants (IFA) and the International Association for the Protection of Intellectual Property Rights (AIPPI) some of them being general professional organisations, some of them being specialised professional organisations. At the same time scientific national organisations have become internationalised in various traditional fields of law such as corporate law, tax law, comparative law, procedural law, financial law, property law, etc.

Internationalisations in most parts have lead to an internationalisation of their form and style as well as of their activities. The function of academics has also been internationalised in this way.
The function of law schools has gradually adapted to the needs of the legal process of globalization; new concepts of international and transnational law are addressing transboarder sets of facts. One finds courses of programs in English, with subjects addressing the internationalisation of the parts of law, new programs on the graduate and post graduate levels, new forms of international cooperation between law schools as well as new forms of international institutions of legal educations based on the principle of lifelong learning. The legal process of globalization in particular has become an independent research topic, sometimes as university projects, sometimes as private initiatives. A variety of subjects on international public law and international economic law were gradually extended to deal particularly with the intersections of international and national law as part of the legal process of globalization.

The drivers of globalization described above have a direct and far reaching influence on the professional activities of lawyers as legal actors in globalization and on scholars in academia. Globalization has replaced a former generation of books on legal systems with a dynamic and process and person oriented view. International concepts of autonomy of law as a static discipline have gradually been challenged and supplemented and – at times replaced – by other social sciences, such as economics, international relations and sociology. Judge Richard Posner even has written a book called Overcoming Law that speaks to this evolutionary process within legal theory and practice with Posner speaking  of the partial replacement and displacement – of legal theory in the competitive context of academic disciplines.

New forms of legal regulations and norms come into existence such as standards and standardising soft law, which is distinct to the legal process of globalization. The national, international and supranational concepts such as corporate governance and human rights have appeared and have “travelled” across the countries and legal cultures with a multiplier effect; issue- focused organisations with an international ambition have “travelled” fast and have been formed and operate with a global reach such as Greenpeace, Amnesty International, Human Rights Watch, Transparency International and Médecins sans Frontières etc. Many NGOs have become visible and effective actors of civil society as part of the legal process of globalization affecting the legal process of globalization as well.

In a complex fashion, a globalized information society rises to a priority within international legal issues; new findings and inventions in technical science and in natural science have revolutionised some areas of law.

As we will see below these expressions of globalizations specific follow “routes of travel” and emerge as areas and ways that impacts the legal process. Iinstantly and simultaneously, they become part of the “Denkraum” (thinking space) of Swiss law and legal culture – a historic development without borders.

1.5 Characteristics and peculiarities of dealing with the “travels” of “impacts” of the legal process of globalization in Switzerland

A purpose of this Anthology beyond “selecting” the texts is to describe how Switzerland, as a “small nation,” has fared in relation to the internationalisation that has taken part since World War II and how Swiss law and legal culture has been influenced and transformed. Bringing to the foreground the contextual background of the legal process of globalization is an integral part of this endeavour. The Anthology primarly focuses on texts and not institutions and persons. This broader purpose may only be achieved, if before and beyond the texts the characteristics and peculiarities of the background dealing with the legal process of globalization in Switzerland after World War II is at least addressed and sketched with a rough brushfor the purpose of this introduction.

The main observations of the search and choice of the texts in this part of the Anthologyare the following: The selection of texts shows, that the writing of texts has been the prerogative of professors of law and not practitioners in law. The authors of the texts in this part of the Anthology are exclusively Swiss. The texts selected have only been written starting about fifty years after the end of World War II. In view of the complexity of the legal process of globalization the majority of the texts chosen are a patchwork of individual issue related analyses.  Coherent analyses and descriptions cannot yet be found.

The following further observations and comments are worth bearing in mind, that Switzerland traditionally has above average educated and experienced lawyers in various legal professions such as attorneys in international legal practice, general counsels in multinational enterprises, governmental officials working in international matters and judges. Switzerland also maintains above average integration of English as lingua franca of law in professional – and more recently – academic legal processes.

The prevalent inward looking mindset in the post-World-War-II- period in Switzerland was not conducive to an early and timely phenomenological description and analysis of the legal process of globalization and its impacts on law and legal professions. This was in particular due to the novelty of the general nature of the development and its increasing speed of change. This led in certain areas to a suboptimal ability to act and react by the legal actors as well as by the political actors faced with these developments. The writing activities were largely dependent on the mindset and the specific educational and professional activities of certain individual lawyers in practice and in academia. As regards to the exposure to the legal process of globalization the lawyers in practice operate in an above average internationalized economy in Switzerland; they generally “act” and don’t “write”. Therefore the contributions in the Anthology in the part of globalization are less abundant.

It should be noted that texts on the legal process of globalization in neighbouring social sciences such as economics, international relations and sociology are less likely to be address it interdisciplinarily than some anglo-saxon subcultures that also deal with globalization. At least in the German speaking part of Switzerland, full chairs of sociology and political science and international relations were only instituted in the late sixties and there is less integration of legal thought in these departments than we see  in the anglo-saxon world. In the endeavours to deal with the global legal process of law in Switzerland after World War II a marked inward looking mindset and a desire to keep the discipline of law an autonomous discipline as regard to the developments in other social sciences, was evident.

In that context, one also notes that – contrary to general expection and common knowledge – the actual role of Swiss law and legal culture as an important factor of Switzerland’s general competitiveness in dealing with the process of globalization was underestimated and remained subconsious for a long time. The role of law and the importance of the contribution of legal factors in the various reports of competitiveness of nations in the assessment of Switzerland’s legal reputation, such as World Economic Forum (WEF), are responsible to an important extent for the above average rankings.

Only recently the legal process of globalization and its impact on Swiss law and legal culture has been made part of a governmental process of communication. Bearing this in mind, one has to note that for a long time Switzerland has suboptimally communicated Swiss law and legal culture to the rest of the world. Only recently has the Swiss government started to translate some new laws into English.

We observe that after World War II eminent Swiss practitioners and professional individuals have reached international positions such as president of the International Fiscal Association (IFA), the International Bar Association (IBA), the International Association of Industrial Property (AIPPI), despite the fact, that the Swiss bar has no members or member law firms, which are international in the true sense. This is another reminder that a broader concept of legal culture has to include – besides institutions – lawyers as legal actors.

In general, Swiss law schools in post World War II times have applied a concept of autonomy to the Swiss legal system and Swiss jurisprudence.  They tend to apply rigid categorisation of legal subjects in the Humboldtian tradition. This generally was not conducive to an open attitude and to flexible adaptability of the curricula vis-à-vis phenomena such as globalization. With these structural and mental limitations of legal science “to take it global” globalization research was hardly a topic on its own andwas certainly not a high priority on the academic agenda. The level of limited interest to initially observe the facts of globalization phenomenologically in legal science has been low. Thus it has not helped to raise awareness of the constant and continous integration and adoption of foreign legal concepts into Swiss law and legal culture in the growing waves on the sea of globalization after World War II. The context of gradual contrarian decline of the academic subjects of comparative law, of conflict of law, and of teaching on foreign law as autonomous academic disciplines is to be noted in Switzerland and elsewhere after World War II. The centre of discourse on globalization in various social sciences gradually shifted into the Anglo-American part of the world and for a long time has almost exclusively been carried out in English. This had an influence on the access to and the accessibility of most modern knowledge and research and did not help to raise the level of awareness of a pressing need to deal with the legal process of globalization in Switzerland. The role of legal institutions and/or libraries as specifically dealing with the legal process of globalization has been small in Switzerland.

A further factor is a decline and disintegration of general courses in law schools and concepts on topics such as international public law, which was dislodged, superimposed and replaced by a gradual fragmentation into subdisciplines. The anglosaxonisation of the dialogue on globalization and the inward looking of the United States regarding international matters in turn made it more difficult to bring relevant contributions of other legal systems into play in the present day discourse on the legal process of globalization. However, the tide has obviously turned in certain areas. In Switzerland many courses are nowadays taught in English. There are a number of law schools that offer double degree programs in cooperation with non-Swiss universities and have a considerable network of academic institutions in the world. European law and specific parts of Anglo American law such as the discipline of economic analysis of law have made inroads into Swiss curricula. There has been a marked increase in the number of foreign law professors teaching and conducting research as visiting professors in Swiss law schools. These factors have contributed to a general awareness of the implications of globalization on the legal process and its impact on Swiss law and legal culture arising.

This overview of aspects of the legal process of Globalization would be narrow and shortsighted.if one would not briefly look at the actual legal process of globalization and its impact on Swiss law and legal culture by legal actors in private and public legal practice. This includes a view of the Swiss as internationally active attorneys, general counsels of Swiss multinational enterprises and international legal officials and judges.

Switzerland has an above average population of internationally experienced and internationally educated legal practitioners. This reflects the general internationality of the Swiss economy and the society as a whole. One million Swiss live within the EU, another half a million in the rest of the world. Switzerland is in several OECD countries number one or close to in the ranking of the direct investments. Switzerland has, compared to its size, an above average manpower active in multinational enterprises. Switzerland plays an above average role in some of the specifically important markets in globalization, such as the financial markets. Contrary to general expectations, there are aspects of Swiss law and legal culture, which are internationally relevant in the legal process of globalization, such as international commercial arbitration, the tradition of choice of law in certain areas of international contracts, the regular use of Swiss legal forms of associations and cooperatives to organise multinational service organisations in Switzerland etc.

The direct and indirect exposure of the various legal professions to the legal process of globalization is in our opinion more intense and more direct in legal practice than in legal academia.In general, those practitioners have profound knowledge of and experience in the process of globalization. This is not reflected in the Anthology of texts because in general they do not write, be it for reasons of business secrecy, sometimes merely because of time restrictions or due to a systemic lack of interest in the academic community in their activities. It is shown in the selection of texts in the chapter on the trends to Americanization, that there is a substantial presence of practitioners who generally have also held academic functions . In this context, we see internationally above average sophisticated general counsels and enterprise lawyers, above average experience in governmental officials as well as judges. The selections in this Anthology make a point to reference their activities in relation to foreign laws. As outlined above, Swiss legal practitioners have been presidents of the IFA, the IBA and the AIPPI. Several Swiss governmental lawyers or professors have been lead prosecutors in international criminal tribunals, presidents of the Iranian Claims Tribunal and have been General Counsels of the General Secretary of the UN. These sociological facts, which are an important part of Swiss legal culture, have to be factored in when one assesses how Switzerland fared in the dynamic internationalisation and the international legal process of globalization after World War II. Therefore we make a case in the Anthology for the inclusion of institutions and persons beyond texts in the assessment of a broad spectrum of effects on Swiss law and legal culture, of which written texts are special elements contributing to a broader concept of legal culture.

1.6 Characteristics and peculiarities of the selection of the texts and of authors in the Anthology writing on the process of globalization of Swiss law and legal culture

The editor, as said at the outset is a pilot, driver or captain for the reader and user of this Anthology. He facilitates the access and the walking through the various roads he might take in obtaining information on the process of Americanization, Europeanization and in this part Globalization of Swiss law and legal culture. Since the Anthology uses new methods of knowledge generation and management and especially since it inclludes cotemporary developments there naturally occurs a problem. Namely the knowledge generated by such new methods in the first stage has not yet been further analysed by the academic or professional community. The process of making the Anthology itself however, produces an agenda for possible further analysis and research on the processes of Americanization, Europeanization and Globalization. It seems to be inefficient and unrealistic to wait until such further analysis and research has been elaborated in the community of scholars before highlighting their importance. The editor therefore takes the liberty to use as an essential element of guidance with some preliminary observations that are relevant to the use of the Anthology. This is all the more warranted in view of the lack of a systematic and coherent present analysis of the phenomena. From this vantage point we summarise a few basic information on the type and style of texts found and on the education and profession of the authors of such texts in the ensuing part on Globalisation in particular. The basic information of the contents of the texts found are contained in the paragraphs “background” and “summary” for each text.

In general the following findings may be mentioned:
Most of the texts have been written for special occasions and on special topics. It is therefore difficult to have an overall view in the Anthology of the phenomena in Switzerland of the specific avenues of “travels” and “impacts”, because they do not deal with the processes of Americanization, Europeanization and Globalization as such. Most of the texts are short and have been published in traditional academic publications of law. Only a minority of the texts are excerpts from major publications such as monographs. The majority of the authors are Swiss. The texts by and large have been published by Swiss publishers, which is a revealing element of the “Swissness” of the attempts to selectively grasp the process of Americanization, Europeanization and Globalization after World War II. Because of an earlier direct exposure of international lawyers and members of the legal administrations in international legal matter, new trends of “travels” and “impacts”, have generally first come to the attention of practitioners and only later to internationalists in academia. As regards to the process of globalization this area has been almost exclusively dealt with by law professors or by practitioners having parallel academic appointments. The majority of authors of texts work in the German speaking part of Switzerland. Exceptions are the texts written in the institutional environment of Lausanne and Geneva, which are situated in the French speaking part. Under a concept of legal culture it is necessary and advisable, to turn to the biographies of the authors, which are an integral part of the Anthology. There is a high correlation between internationalist educations and/or international professional activities and authorship in the Anthology. The phenomenon of Americanization, Europeanization and Globalization therefore can only be grasped, if the user follows the gradual internationalisation after World War II of the legal education and the professional activities of the authors represented in the Anthology. Under the broader aspect of legal culture the same holds true for a necessary inclusion of the institutional environments in Switzerland catering to international legal matters. It has to be noted, that only a small number of the texts of the Swiss and non-Swiss authors have been written in the period directly following World War II either written or translated into English. It is only roughly forty years after World War II that more texts have been directly written in English. The part on Globalization finally contains a series of texts, which really“took it global”; They deal with specific contributions of Swiss lawyers to the international discourse of the legal process of Globalisation, as well as with specific examples of “outbound travel” of elements of Swiss law and legal culture.

In the context of a standalone concept of the various categories of comments of the editor, he advises readers and users to first read the parts “background” and “summaries” on all non-English texts contained in the Anthology.

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