Heinz Aemisegger, Die Bedeutung des US-amerikanischen Rechts bzw. der Rechtskultur des common law in der Praxis schweizerischer Gerichte – am Beispiel des Bundesgerichts, Archiv für juristische Praxis, 2008, p.18-30, full text
[The significance of US-American law and legal culture of the common law in the practice of Swiss courts – The example of the Swiss Federal Tribunal]
a) Background
The text is a scientific article that appeared in “Archiv für Juristische Praxis”. It is a written version of an oral presentation in an interuniversity seminar between the universities of Zurich and St. Gallen (see above text 3.16). It is entitled “From the horse’s mouth – legal professions in the winds of Americanization.” How are general counsels of Swiss multinational firms, international attorneys, regulatory officials and courts in Switzerland and in Europe affected by American law and legal culture, and how do they deal with the effects at their workplaces in Switzerland?
The Federal Tribunal has a longstanding tradition of openness to foreign law and of making use of foreign laws in its decisions. In the post-World War II era and in times of globalization new forms and new types of influences of international legal developments became a reality for Swiss courts. According to justice Aemisegger, Anglo-American law has had an intense and lasting influence on continental laws and Swiss law and legal culture in the past. The inspiration, influences and impacts of American legal thought actually happened directly by US-AUS-American law, partially indirectly through the reception of foreign or international law, which has been influenced by US-American law and legal culture. Economic and military power has underpinned this process. In the past 30 years the influence of the European Convention on Human Rights for instance has been particularly strong. The Convention and its application by the European Court of Human Rights in Strassburg are, according to Justice Aemisegger, influences and impacts deeply rooted in Anglo-American legal thinking. A further direct influence is the formation of the Criminal Court of Justice in The Hague whose rules of procedure are heavily influenced by Anglo-American law. This is also now evidenced in the new Federal Rules of Criminal Procedure of Switzerland. According to justice Aemisegger the Federal Tribunal regularly deals directly with US-American law. The statistics of the cases published on the internet in 2007 under the key words “United States-Switzerland” has shown in the years between 1954 and 2007, 1953 precise and 1999 partial hits. The same search under the search word “judgment” since 2000 shows 165 direct and 1083 partial hits for judgments that have been rendered with a close connection to the United States.
Heinz Aemisegger is a Justice of the Federal Tribunal, the highest court in Switzerland. He was a vice president between 2001 and 2002 and the president of the court from 2003 and 2004 in the court’s rotating system. Heinz Aemisegger is a known as an active justice who communicates with the professional and the academic community.
b) Summary
At the outset Heinz Aemisegger states that the obvious similarities between the US-American and the Swiss traditional legal structures lead to the handling of substantive issues in a similar or the same way therefore making a comparative law approach an attractive proposition. The text mainly deals with the indirect influences of US-American law through the application in Swiss courts of the European Convention on Human Rights, the principles of fairness being in the foreground.
Aemisegger shows that the different historical roots and the different attitudes of the traditional systems vis-a-vis the principle of freedom of information in government (Das Öffentlichkeitsprinzip) and the privacy in personal matters become evident in the judgments of the European Court of Human Rights, which in turn has a direct influence on Swiss courts. The text deals with the judgment in the Caroline of Hannover case between the German constitutional court and the European Court of Human Rights as an example.
The text carefully analyzes the influences of US-American law on the Freedom of Information Act of July 2006 and on the now enacted new Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure with regard to the court proceedings. Article 13 subtitle 3 of the Swiss Constitution states that court proceedings are public, which is influenced by the European Convention on Human Rights, that is by United States law for instance in connection with the comparison between prejudicial effects of judgments in both jurisdictions. Both systems lead to a binding and prejudicial effect of the court decisions. Based upon this observation, Aemisegger traces the influences of the United States law on the principle of freedom of information in government (Öffentlichkeitsprinzip) of Switzerland. The US practice of publishing court decisions has greatly influenced the handling of these issues by the Federal Tribunal. Since January 2007, the Federal Tribunal has published all decisions on the internet. The leading cases are published in the official journal “Decisions of the Federal Tribunal”.
In the areas of “fairness in proceedings” a marked contrast is that Anglo-American court proceedings use oral pleadings. In areas such as the requirement that decisions should be made by judges in the area of avoiding double functions of judges in proceedings and in the area of the right to a public hearing. Both examples are clear evidences of indirect influences through the Convention of Human Rights by Anglo-American legal culture in everyday life of the Federal Tribunal of Switzerland.
The most recent examples of adaptation in connection with terrorism financing are the principle of acceleration (Beschleunigungsgebot), rights for counsels, rights to the access to the files in pending proceedings, “Miranda Warnings” and actual refusal to testify. In international legal assistance in criminal matters recent changes in American laws have led to critical points of contact.
Since the English language has become the “lingua franca” of international legal matters, justice Aemisegger at the end of the text shows that the Federal Tribunal has enough language capabilities and English speaking lawyers to cope with those issues, despite the fact that English is not an official language in Switzerland.