Hans Peter Walter, Das rechtsvergleichende Element – Zur Auslegung vereinheitlichten, harmonisierten und rezipierten Rechts, Zeitschrift für Schweizerisches Recht (ZSR) 2007 I 259 – 277
Hans Peter Walter – Das rechtsvergleichende Element
Background
Following the period up to 1989 analysed in the summary above, international law, and EU law in particular, become substantially more important in federal court rulings as law in many areas of society became increasingly shaped by European law and international law. When examining the significance of comparative law in case law on international law, a distinction must be made between the interpretation of international law which Switzerland has ratified and is directly applicable, the interpretation of international law which Switzerland has ratified and has to implement domestically within the limits of international law, and the interpretation of national laws which the Swiss legislature enacts to reproduce international law not ratified by Switzerland but where doing so serves Swiss interests (so-called autonomous implementation).
Summary
The author, a long-time federal judge and later professor of civil law at the University of Bern, emphasizes that Switzerland has traditionally had an attitude of openness towards comparative law. In Federal Supreme Court rulings, the purpose of the legal norm represents the most important element for interpretation. A normative purpose that does not exclusively have national roots can be significant too. In Europe, globalization is leading to an erosion of the nation state. The nation-state codifications of the 19th and early 20th centuries are being altered through efforts to achieve uniformity under international law. Article 7 of Maritime Code in fact requires courts to fill legal gaps in national law by applying the generally recognized principles of maritime law. To the extent such principles should not be existant, the courts are to fill legal gaps by applying principles which legislators would recognize taking into account existing laws and the customs, science and the case law of maritime nations. Internationally, the Federal Supreme Court has a reputation for taking comparative law into account to a greater extent than other supreme courts, which is likely due to being a small, multicultural nation characterized by diversity, particularly linguistic diversity. With the uniformization or harmonization of national law, and especially the autonomous implementation of EU law, comparative law became even more important. Irrespective of whether international legal harmonization comes about through a uniform law under an international treaty, as national law harmonized as a result of an international treaty or as national adoption of law in the interest of equality of affected persons in an expanded geographical scope, comparative law does not remain a static law-making exercise. Instead, it has to be taken into account in case law. In all three areas, interpretation must be guided by the “idea of a transnational legal entity within a legal circle that extends beyond national borders”. Achieving uniform law by means of comparative law not only means a legal norm will be interpreted the same way, but also that similar factual constellations in a dispute will be judged the same way.
The interpretation of an international treaty is relatively unproblematic when there is an international court like the ECtHR, or if the international treaty in question, such as the Lugano Convention, requires the consideration of foreign court decisions. In the absence of such points of reference, the Federal Supreme Court primarily refers to the text of a treaty, or in any case to a concordant expression of will on the part of the contracting states that deviates from the textual wording. The author considers the latter to be particularly problematic in the case of international treaties to which other states can subsequently accede. The author therefore supports the expanded formulation of the Federal Supreme Court that in interpreting international treaties primarily intended to bring about internationally uniform law, particular importance is to be attached to foreign legal doctrine and case law and to the efforts made to achieve such uniformity. On the basis of the Vienna Convention on the Law of Treaties of 1969, the author identifies primary principles of interpretation: objectivizing interpretation for the period of validity; objectification primarily via systematic and teleological elements, namely in the international context; historical element of interpretation; also clear wording in need of interpretation.
Harmonized and received national law is also subject to interpretation. Harmonized law which implements an act of an international treaty by enacting national law has to comply with the hierarchy requirement of international law, whereas received law, i.e. autonomously implemented law, is not subordinate to the foreign law on which it is based. The interpretation of treaties is based on the above principles. In interpreting received EU law, ECJ case law applies. In the absence of such case law, the case law of the EU member states applies, and in the absence of precedents the generally accepted rules of interpretation apply, which, like the Swiss rules, are not restricted to observing specific wording. In accordance with the systematic element of interpretation, harmonized national law is to be interpreted in conformity with the treaty, and even in the case of autonomous implementation by the legislature, it makes no sense if courts do not orient themselves around the EU directive being autonomously implemented. However, it must be examined whether Swiss legislators intended to implement the directive in question in its entirety. The author says he would observe the same limitation if ECJ case law were to develop in an unexpected direction after autonomous implementation, but also considers other solutions to be acceptable. However, national courts must avoid developing harmonized law in different directions depending on the national law they are familiar with. In the absence of a supranational decision-making body whose decisions are binding upon Switzerland, this can be achieved via comparative law, the applicability of which is an element of interpretation recognized under international law (cf. Art. 1 of the 2nd Protocol to the Lugano Convention). In the author’s opinion, predominantly uniform international court decisions and subsumption (e.g. in patent law) should be followed as long as assessment does not indicate that this practice is unjustifiable. If a foreign court decision bears the character of national law, a better interpretation of the ratio of uniform law can be followed, but this has to be justified in an international light. To enable international legal comparison, a multilingual systematic collection of precedents should be compiled, for example by the Swiss Institute of Comparative Law in Lausanne.