Carl Baudenbacher, Effects of International and European Integration on Switzerland, excerpt, in Swiss Economic Law Facing the Challenges of International and European Law, Zeitschrift für Schweizerisches Recht, 2012, p.495 – 510
a) Background
The text at hand appeared as chapter of a general report to the Swiss Jurists 2012 (Schweizer Juristentag), the annual meeting of the Swiss Lawyers Association, which had as Leitmotiv “Swiss law faced the challenges of international law” (Das schweizerische Recht vor der Herausforderung des internationalen Rechts). () This annual event, is the most representative general event for Swiss law and Swiss legal culture and has a substantial general influence. The reports of the annual meeting of the Swiss Jurists 2012 (Schweizerischer Juristentag) dealt with issues of the influence of international law on Swiss criminal law, Swiss conflicts of law, Swiss law on banking and financial markets and, as in the case of the text at hand by Carl Baudenbacher, the challenges of international and European law in general.
The written report of Baudenbacher comprises approximately two hundred and forty pages. It deals with the concept of economic law; the Swiss governance model; traditional corner stones of Swiss economic law; the impact of international and European law on Swiss economic law; Switzerland as a party of treaties with economic law relevance; Americanization and Europeanization of Swiss economic law in particular; contribution of Swiss law to foreign, international and European law before detailing some conclusions.
Baudenbacher was a full Professor of Civil, Commercial, and Business Law at the University of St. Gallen. He became an emerite in 2013. He is the Director Executive of Masters of European and International Business Law (MBL–HSG). His most visible and prominent function is the presidency of the EFTA court. Baudenbacher is an outspoken scholar, often criticising and at times consulting the government of Switzerland. Baudenbacher is an exxceptionally internationalized Swiss legal scholar. He earlier taught in Germany and advised the principality of Lichtenstein in its accession to the EEA agreement named by the principality of Liechtenstein a member of the EFTA court. He presently is the president of this court. He for many years has been a Permanent Visiting Professor of Law at the Texas University Law School.
b) Summary
The excerpt at hand deals with the influence of the European Union on Swiss law and legal culture as powerful legal actor as well as with the influence of the United States.
According to Carl Baudenbacher the broadest direct influence on Swiss economic law is exercised by the European Union. Besides the European Union, powerful countries and organisations may resort to unilateral measures in order to force smaller countries to comply with their political intentions. Baudenbacher deals with the parallel behaviour of the United States, the champion of this type of policy and behaviour. With regards to the European Union, Baudenbacher argues, that the sheer existence and the size of this market impairs the risk of discrimination of third country operators, since EU operators have a tendency to trade with each other. This is reinforced by the legal framework of the EU as a single market and by the actions of its organs.
Concerning the United States, Baudenbacher argues that American foreign policy is to a large extent characterized by a tendency to act without the consent of those who are affected by its actions. While continental Europe’s elites were keen “to embrace an antinationalist, antidemocratic international legal system” after the horrors of nationalism of World War II, for the US the war had a different meaning which has led to a different understanding of the internationalist project pursued in its wake. Basically, the United States promoted the new internationalism as part of an ambition to Americanize as much of the world as it could, which meant both the export of American institutions, and extending American influence globally.
According to Baudenbacher, the United States did not really need international law (being already American). Accordingly the United States would lead the world in creating a new international legal order, to which it never fully acceded. The new international institutions would be for the rest of the world, not really for the US, and certainly not superior in authority to the US legal system. As a result, in the ensuing decades, the United States frequently found itself in conflict with laws and legal cultures of other countries, rejecting it or resisting it for itself. As part of the unilateral action of foreign powers, Baudenbacher deals with the extra- territorial application of certain US laws and the imposing of sanctions. Baudenbacher further deals with treaties and the import and export of laws. The second part of the text extensively deals with judicial dialogue, a topic familiar and clear to Baudenbacher in his function as President of the EFTA Court. Foreign law and legal thinking may also find their way into another legal system based upon an increasing similarity of real life problems in the times of globalisation and regionalisation. Many scholars, according to Baudenbacher, contend that high court judges around the world should build an informal network and should enter in a global interaction. The means of judicial dialogue, according to Baudenbacher, are references to foreign judgements, meetings of judges, both practiced by the Swiss Federal Tribunal. Baudenbacher puts a question mark to the comparative law opinion that the Swiss Federal Tribunal Court plays a leading role, when it comes to referencing foreign law, by indicating that references are usually limited to neighbouring countries.