Heinrich Koller, Globalisierung und Internationalisierung des Wirtschaftsrechts – Auswirkung auf die nationale Gesetzgebung, Referate und Mitteilungen des schweizerischen Juristen Vereins, Zeitschrift für Schweizerisches Recht, 2000, p. 113 ff.
[Globalization and Internationalization of Swiss economic law – The effects in national legislation]
a) Background
The text is one of the lead texts from the annual meeting of the Swiss lawyers associations in 2000. It is an honour for a lawyer to be asked to be a contributor and presenter. Professor Heinrich Koller’s text was part of a group of four presentations under the lead title Globalisierung und nationales Wirtschaftsrechts (Globalization and National Economic Law). It is the first time that this topic has been addressed officially and presented to a great number of readers and participants of the annual meeting of the Swiss Lawyers association. These reports are published in the Schweizerische Zeitschrift für Recht (Swiss Journal of Law). The written text is a scientific article. At the annual meeting the rapporteurs limit themselves to present an oral summary on the topic at the outset of a plenary discussion. The text is an overview and overall assessment of the effects of globalization and international economic law by the highest legal official of Switzerland.
b) Summary
At the outset Heinrich Koller describes his understanding of the special characteristics of globalization beyond internationalization, transnationalization and supranationalization. He argues, that globalization differs from the past with respect to the controlling concepts, the principle actors as well as the extent and the consequences for the economy, society and government. The points of references in globalization are no longer the nation states, but the world as a whole. The political assessment of the phenomenon is controversial. The opinions on the perspectives and the options for action are controversial as well. Koller opts for a pragmatic middle solution and favours for this argumentation a nation state with a strong government.
With regards to the challenges and the effects of globalization to deal with the challenges of the process of globalization on government and law, development is undeniable and requires analysis and action by government and law. In that context according to Koller, the importance of international law is growing. Among the new tendencies observed are a trend to Europeanization and Americanization and a trend of bilateralism and “package solutions.” Displacement of legal innovation on an international level is an important trend as well.
As regards to the effects of globalization on legislation, the text summarizes with a series of pertinent and specific examples of developments in the past ten years. Koller notes, with reference to legislation, these important changes in Swiss economic law: have passed without resorting to referenda; that the competitive pressure on Swiss economy to adapt has not ceased; that Switzerland adapted international standards in many international treaties; that the market oriented renewal of the Swiss economy has been effected in several steps and that the ability to adapt has not been hindered by the democratic system.
At the conclusion, the text addresses issues and effects of a trend toward deregulation, a trend toward a greater density and a multiplicity of legal norms, a trend toward the rapprochement of public and private law. Koller finally notes that these developments have led to the creation of adequate forms of organizations and solutions. Koller underlines the necessity of an incontestable flexibility for reforms to be realized in the relationship between government and the economy in facing the challenges of the process of globalization. In assessing the effects of globalization, he finally notes marked changes in the allocation of power within the legal system and in the allocation from nation-state to international levels as regards to the determination of the substance and the procedure of how law comes about.