Peter V. KunzSchweizer Wirtschaftsrecht im 21. Jahrhundert: Ausblick(e) zwischen Hoffen und Bangen

Peter V. Kunz, Schweizer Wirtschaftsrecht im 21. Jahrhundert: Ausblick(e) zwischen Hoffen und Bangen, AJP 2015, p. 411-426.

Background

In this essay, Prof. Dr. Peter V. Kunz provides an overview of the status quo in economic law as well as an outlook for potential developments in the first half of the 21st century.

Economic law is a combination of private law, public law and criminal law; it is a “transversal” subject. Thus, economic law scholars need to possess excellent knowledge in all fields of law; Prof. Kunz describes such scholars as legal “all-rounders”.

In economic law in general and in financial markets law in particular, a tendency can be observed in the legislative process of a shift from laws to ordinances. The author is of the opinion that this development will continue in the future whereas legislative options are in place to ensure a democratic participation, or at least an involvement of the parliament.

Also noteworthy is that, from a legal policy point of view, the tendency towards regulation has been criticized for some time, and, with good reason, reference is made to positive examples of self-regulation. Economic reality and economic law are highly complex subjects. Therefore, an “expertocracy” cannot arise out of legal policy as well as democratic considerations. However, Prof. Kunz points out that with regard to many technical economic issues (for e.g., in the law of mergers, securities law, etc.), the “normal” parliamentarian is already overstrained and hence exposed to external influences.

Prof. Kunz is further of the opinion that there will not be a “methodological revolution” in the 21st century. However, some methodological peculiarities can be identified in economic law. As an example, the Swiss Federal Court always makes reference to the practicability of the interpretation of a norm or to the economic approach. Prof. Kunz believes that the discussion as to whether (for example) other courts specialized in economic law should exist together with the commercial courts and the Federal Patent Court will continue in the future; still, he also considers the realization of such courts unlikely.

Prof. Kunz is convinced that there are signs of “more regulation” as well as “more mandatory rules” in (economic) law, primarily with regard to the upcoming reform of the Swiss Corporation Law. Furthermore, the increasing conformity of the legislation with model statues and model contracts has been an obvious economic reality for years. Also, the demand for business lawyers will increase in the future. In fact, economic law has been the high-growth field of law per se for a decade and new faculties have been created in several universities.

The rapid developments of global economic activities and technical innovations will create additional economic law issues, such as “Internet-GV”, “Bitcoins” or “Crowdfunding”. The author also investigates the internationalization of economic law, concluding that, in the coming decades, international organizations, in particular, will increasingly and intensively influence economic law. He also notes that China will represent a dominant law system, which will affect Switzerland.

The author also points out that the interest of the (international) media audience on economic topics has been bolstered by investigative journalism; and, he notes that, in particular, the “International Consortium of Investigative Journalists” (ICIJ) has revealed several alleged scandals.

Prof. Kunz’s essay highlights the need for a review of company law and makes reference to several areas where this is already occurring. He also notes that in the field of financial markets law, self-regulation will forge ahead. Finally, he prophesizes that in the next years, the Swiss financial center will undergo a radical structural change.

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