2.8 Thomas Cottier, Die Globalisierung des Rechts – Herausforderungen für Praxis, Ausbildung und Forschung, Zeitschrift des Bernischen Juristenvereins, 1997 p. 217 ff.
[Globalization of Law – Challanges for Practice, Education and Research]
The text included here is a written version of a lecture given to the Bernese Lawyer’s Association, offered at a time when awareness on globalization of Swiss law hardly existed. It is based on the author’s professional experience as a university teacher, a scholar and a consultant. In many respects, the text epitomizes the issues and topics Cottier increasingly dealt with in his teaching as the first professor of European and International Economic Law at the University of Bern to which he was appointed in 1994.
Thomas Cottier is a Professor of European and International Law at the University of Berne, formerly with the Department of Foreign Economic Affairs (now SECO) and Deputy-Director General of the Swiss Intellectual Property Office (now an institute) and a member of the Swiss delegations to the GATT (1986-1993) and the EEA negotiations (1989-1992). He was a member and a chairman of several GATT and WTO panels. Thomas Cottier is the Director of the World Trade Institute at the University of Berne. As a scholar, Cottier is part of a small group of leading specialists in international economic law in the world. He is one of the few Swiss scholars who continuously has embedded his writing and teaching in the process of globalization of law.
The text links a description of globalization to a description of integration using a historic and a holistic perspective. Thomas Cottier views the legal process of globalization as a dynamic process with a multiplicity and a multi-dimensionality of legal systems at a new stage of interaction in legal cultures from a global perspective. Starting with an overview of globalization, the text goes on to identify its challenges and develops proposals for coping with it for legislation, legal education, legal science and legal research. The concept of globalization differs from the concept of regional and European integration in that it does not have a special political finality. The increased forces of globalization and integration have replaced the metaphor of internationalization. The analyses shows, that while the metaphors and names are new, the substance is part of a broad historic development and already known in its essentials. The phenomena and the effects of globalization and the legal process are as yet unclear and under researched.
Furthermore, the text focuses on a practical perspective. It addresses the key question: What are the structural effects of these developments on law? Cottier’s assumption is that, in a marked change of paradigm, law slowly and firmly has started to undergo considerable changes. Leaving out the complex dimension and the development of the architecture of contracts in the private sector the following major trends are described: (1) Globalization and regionalization bring about more creative legal development in the sphere of international public law as well as challenging the function of traditional legislation making new constitutional structures necessary; (2) Globalization and regionalization bring about a specialization of the international practice of law; at the same time, a marked specialization of courts is to be observed, since the traditional and formal principles of the distinction between public and private law are being weakened and general principles of law and human rights grow in importance. Globalization and regionalization require a fundamental change of legal education; (3) the ability to cope in various languages with the growth of legal information is of paramount importance; (4) Globalization and regionalization change the structure of legal science. The categorizations of disciplines are being replaced by the focus on individual issues and the “walks of life”.
In conclusion of an analysis of the state of affairs, Cottier notes that part of globalization and regionalization leads to a shift of the creative and innovative developments of law to the international level. This not only holds true with respect to economic law, but also with respect to other spheres of life. The shift is put into effect by the use of various instruments, which are being followed by force of reality or by political decision or as source d’inspiration. It is characteristic for this process, that they primarily are moved by experts and administrations and by international organisations.
Faced with these challenges, the text draws substantial conclusions for the legislative process, the juridical process, legal education, legal science and legal research. Law is not outside of globalization and regionalization, but takes part of it. Globalization and regionalization offer opportunities to law and new perspectives to justice for a better future with new structures.