Hans-Ueli Vogt, § 7 Das Recht in der Globalisierung, excerpt: in Konvergenz von Gesellschaftsrechten, ein rechtsvergleichender Befund und seine rechtssoziologische und rechtstheoretische Erklärung im Lichte der Globalisierung, Zürich/St. Gallen 2012, p- 282-308
G_2.10_VOGT_Das Recht in der Globalisierung
[Law in Globalization]
a) Background
The text at hand is a chapter from the book by Hans-Ueli Vogt Konvergenz von Gesellschaftsrechten – Ein rechtsvergleichender Befund und seine rechtssoziologicshe und rechtstheoretische Erklärung im Lichte der Globalisierung (Convergence of Corporate Laws – a comparative law based observation of the phenomenon and a sociology of law and theory of law based explanation in the light of globalization, 2012). The excerpt chosen is paragraph 7: Law in Globalization. The book is the habilitation thesis of Hans-Ueli Vogt, accepted 14th June 2006 at the University of Zurich and published in 2012. The book is a rare and most remarkable analysis of the convergence that has taken place in corporate law in light of globalization. It offers a delocalized as well as denationalized analysis. It is a description based on a comparative law inspired observation of a phenomenon and an explanation of the phenomenon based upon concepts of sociology of law and theory of law in the light of globalization. The text has been written with the background of a systems- theory- approach to law. Because of the demonstrated lack of conceptualized approaches to the process of globalization and its effects on national law and national legal culture in Swiss legal science, this book is a rare exception and merits, in the context of this collection, particular attention because of the development and use of adequate methodology when dealing with the legal process of globalization. It is written from a truly global perspective and situated on a denationalized and delocalized level; the Swissness of the text therefore lies in the Swiss nationality and Swiss locus of academic activities of the author.
Hans-Ueli Vogt is a professor of business law at the University of Zurich. He holds a Ph.D. from the University of Zurich, an LL.M. from New York University, and an MBA from the University of St. Gallen. He was a Jean Monnet Fellow at the European University Institute (Florence, Italy), a Visiting Scholar at Harvard Law School, and a Visiting Professor at Tshingua University School of Law (Bejing) as well as at King’s College (London).
Hans-Ueli Vogt is one of Switzerland’s leading corporate law scholars and has published numerous articles and books in his field of expertise. He also is in private practice and is a member of Parliament of the Canton of Zurich. He is a member of the Bars of Zurich and New York.
b) Summary
In the introduction of the text at hand – a chapter of the book – with the title Law in Globalization, Hans-Ueli Vogt describes the object, the aim and the process of the study. He starts from the basic observation that European and US-American corporation laws in many respects have become increasingly similar. The process is far-reaching and increasingly leads to a convergence of corporate laws in industrial nations. The primary focuses of the analysis are public companies. This focus given, the book deals with specifically singled out achievements of “legal structures” (Rechtsstrukturen) such as participation of shareholders (paragraph 2), responsibility of management (paragraph 3) and publicity of information within corporations (paragraph 4). The analysis is further limited to the corporation laws of the United States, the European Union and Germany respectively. The analysis therefore is limited to the process of convergence of specific corporate laws. The book uses the term and the concept of “convergence” from a social science context. These concepts are based upon a common “inner logic” or based upon similar “external conditions” in different economic and political systems. The notion of convergence applied does not assume a complete approximation. The concept applied allowed persistence of differences between the structures compared. The analysis therefore limits its focus of the degree of convergence of corporate laws to the extent that they actually exist. Referring to a number of existing American theoretical publications on corporate laws dealing not only with the description but also with its theoretical explanation of described facts of convergence, the author assumes relevance beyond observed phenomena and uses for his own approach a holistic theory for explanation of convergence of corporate laws. Such a theory – and this is key – has to make the changing law and legal culture under the conditions of globalization as an object of analysis. The major purpose of the book is the production of knowledge of theoretical nature on convergence of legal structures under the condition of globalization and the peculiarities of the explanation of convergence of corporate laws based upon the result of such theoretical analysis. The author understands his book not primarily as analysis of existing and positive law in force. He qualifies the book as a comparative law based as well as sociology of law and theory of law based analysis. The process of globalization is dealt with in the foreground.
The author summarizes the book in a working paper of the 10th July 2007 as follows:
“The corporate governance structures of the world’s leading economies have converged in certain respects and to some extent over the past two decades. The legal structures for such matters as board and management, shareholder protection, and financial disclosure have become more and more functionally similar. Rather than further exploring the current state of corporate governance in various states and from a comparative perspective, this book establishes a theoretical framework for describing and analysing the process – not the status or the result – of convergence in corporate governance. This framework is built upon a theoretical description of globalization. Globalization, generally speaking, fosters convergence and homogeneity of social structures and conditions, but it also fosters the persistence of differences and heterogeneity.
As for legal structures, there are three patterns of change fostered by globalization that provide impulses towards convergence: imitation, parallel innovation, and coordination. These patterns of change do not necessarily lead to convergence, but under certain circumstances, they will tend to do so: In cases where the law and the law production are tightly coupled to their environment, in particular to the economy, imitation, parallel innovation, and coordination are likely to bring about convergence, provided that the structures and conditions in the relevant sectors of the environment are similar. Also, convergence is more or less likely depending upon whether a legal structure is coupled rather loosely or tightly to its legal context. Besides patterns of change facilitating and fostering convergence, there are circumstances and elements of change, which facilitate and foster the persistence of differences between legal structures. These circumstances and elements are: the differences that persist in the political and economic environment of the law and the law production as well as path dependence, which is a condition of any change.
The analytical framework provided in this book is characterized by its focus on processes of legal change and by an evolutionary and non-teleological concept of change. It is further characterized by its focus on legal structures only. This framework allows further refinement of the existing comparative corporate governance research as well as the combination under one theoretical roof of what appear otherwise as rather unrelated concepts of comparative corporate law analysis. For example, it opens up a road to answering the question what makes any legal system, such as the U.S. system, a frequent candidate for imitation. Obviously, there are a number of circumstances that make selecting U.S. legal structures a good candidate for stabilizing a system after variation has occurred. Further, the analytical framework allows a relatively sophisticated account of why we can see much more convergence in the area of financial market regulation than in the area of organizational law. By providing meaningful insights with respect to many other issues in the field of comparative corporate governance, analysing convergence in corporate governance in light of globalization gives rise to addressing those questions that modern corporate law scholarship should be concerned with.”