E_2.20_LIECHTI-COTTIER_Einleitung und Synthese
a) Background
In the Anthology the reader finds a history of more than 20 years of selective writing by Swiss lawyers on the principle of Eurocompatibilty. After Daniel Thürers text 2.15 of 1989 muted his general idea of “Euro-friendliness”, is Euro-compatibility nowadays an established principle of creation of law and the Swiss government. The multifaceted developments of the past 25 years reached a point of maturity, which allowed a more systematic and in-depth account to take place regarding legal reality of Europeanization in Swiss law and Swiss legal culture. Thomas Cottier and his researchers affiliated with the World Trade Institute at the University of Berne were at various stages the frontrunners of this evolution. The text at hand is testament to those research efforts.
The text is an introduction to a study The Eurocompatibilty of Swiss Economic Law: Convergence and Divergence, which is largely based on Phd-thesis supported by the Swiss National Fund of Research. The text appeared in the library of the Swiss Law Review (Bibliothek zur Zeitschrift für Schweizerisches Recht) in 2012. The text is an introduction and synthesis and mainly refers in summaries to these case studies on aspects of the Cassis de Dijon-principle, value added tax and antitrust law. The texts contain rare in-depth analysis of issues of effects of European law and Swiss law under the Principle of Euro-compatibility; Included in the publications are Matthias Oesch, Die Europäisierung des Schweizerischen Rechts (see text 2.19); Emilie Kohler, Le droit européen à l’aide de l’interprétation du droit Suisse; David Herren, Das Cassis de Dijon-Prinzip im schweizerischen Recht: Gemeinsamkeiten und Divergenzen zum EU-Recht; Ralf Imstepf, Der europarechtliche Einfluss auf das schweizerische Mehrwertsteuerrecht and Monique Sturny, Der Einfluss des europäischen Kartellrechts auf das schweizerische Kartellrecht.
The text at hand therefore is a summary of summaries which contains notable considerations on the role of the development from general comparative law to special Eurocompatibilty law in the past 20 years.
Thomas Cottier is a full professor of European and international economic public law at the University of Bern, and is the director of the World Trade Institue. Cottier has an international academic education at the Universities of Cambridge (United Kingdom and Michigan at Ann Arbor (United States). He has experience in legal practice in the function of Deputy Head of the Swiss Office of Intellectual Property ans as a negotiator for Switzerland in the GATT- and WTO process. As an international scholar he is part of a small group of leading specialists in international economic law in the world.
Rachel Liechti, born on 10 September 1956 in India, living in Switzerland since 1970, studied law at the University of Berne and graduated in 2001. She has been a Senior Research Fellow and Deputy of professor Thomas Cottier, Director of the Institute for European and International Economic Law, University of Berne since 2008. Prior to taking up her current position, she worked at the same Institute as an assistant from 2002-2007. During her employment at the Institute she has, inter alia, been doing research on European Law and its influence on Swiss law, and has co-authored and co-edited various publications together with Thomas Cottier on the subject.
b) Summary
The text seeks to incite the curiosity of law students in Swiss law by looking at its effects and influences in the past outside of Switzerland. It argues, that in times of notorious insecurities about one’s own identity, law as an eminent social cultural phenomenon should be recalled into reality and lead to a more affirmative attitude of the students, teachers and practitioners towards law and legal culture in Switzerland. The influence of Swiss law outside of Switzerland is primarily analyzed from a private law perspective and explained by the almost literal adoption of the codification of Swiss civil law by the Republic of Turkey in 1926. It is an interesting fact, that the law of a country, which at the time of formation of the codification had 3.5 million inhabitants, should govern the private relationships of a country, which at that time already had 60 million of inhabitants. From a dynamic perspective the growth of the population and the increasing influence of Turkey well beyond its borders, this influence could reach according to Pierre Tercier 125 million people today.
Tercier also looks at the international influences of penal law, bankruptcy law and above all constitutional law and finally business law, which have traveled far beyond the Swiss borders. The text states some specificities of Swiss law which might be at the source of this travel, migration and export of law such as the fact, that the law is simple, its language is direct, and that Swiss law is open and broad in its wording. The text addresses issues of quality of Swiss law. It notes the multinationality and multiculturality of the law and its important links to European traditions and raises the question, if the success of Swiss law outside of its border has anything to do with its privileged position of Switzerland in the history of the past centuries. Pierre Tercier notes the decrease of this influence of Swiss law abroad and advocates that it is an eminent task of universities to open the eyes of students to the internationalization of law and legal work and to give them confidence in grasping these phenomena. According to Tercier, law is a hidden sociopolitical treasure the potential of which is often underestimated.