Peter Böckli, Osmosis of Anglo-Saxon Concepts in Swiss Business Law, in The International Practice of Law, Liber Amicorum für Thomas Bär und Robert Karrer, ed. Nedim Vogt et al., Basel. Frankfurt am Main, 1997, p. 9 – 29
a) Background
The text at hand is based on an oral presentation held in a private circle in Basel in 1993. It later appeared in written form in Liber Amicorum for Thomas Bär and Robert Karrer, the International Practice of Law in 1997. Thomas Bär and Robert Karrer are the senior partners of a leading international law firm in Switzerland. It is significant that this Liber Amicorum on the topic of the international practice of law has been published by an international law firm that has been at the forefront of addressing, living and working with the issues of the Americanization of Swiss law and legal culture. The list of authors of the Liber Amicorum comprises of an international network of prominent practitioners from all over the world.
Peter Böckli is an emeritus (2001) Professor of Law at the University of Basel and an eminent attorney in tax and corporate law with an international reputation. Besides practising in leading cases, he has consistently published on the forefront of developments in economic law mainly in tax and corporate law. His texts are authoritative treatises as well as practice-based law review articles and manuscripts of lectures. Böckli has also been a board member of important listed companies and advisory functions for legislators; he has a broad and in-depth experience in actual developments in the economy and correspondingly in law and legal culture and is a keen and sharp observer thereof.
b) Summary
The title Osmosis of Anglo-Saxon Concepts in Swiss Business Law shows three interesting points of reference. Under the umbrella of the topic of Americanization, Peter Böckli talks not about American but Anglo-Saxon concepts. He refers to a generalized focus on business law and he identifies a process of exchange of two legal systems by using the metaphor of Osmosis. Böckli wrote regarding the phenomenon of Americanization in 1997 that this process goes far beyond a mere fashionable trend or a superficial takeover of English business jargon amounting in fact to evidence of a “change of paradigm”. The framework of reference is shifting fast, and new legislative priorities are displacing old ones in this dynamic process.
Under the heading ‘the first wave: French, Anglo-Saxon and German influence’, one finds the remarkable statement, that it would be unrealistic to deny a simple fact: Switzerland was under the constant legal influence of the dominant powers in every single instant of its recent history. When Napoleon’s troops occupied Switzerland in 1798 the Swiss legal system was renewed, even turned upside down, to an almost unfathomable extent, particularly business law. After the German victory over France in 1871, even more lasting marks were left by the laws of Bismarck’s Empire in the area of commercial law. Before this German phase, the strong Anglo-Saxon influence on the organization of government and constitutional law in 1848 was obvious and dominant; the unitary state dictated by Napoleon, changed the idea of a parliament with two chambers, while the idea of a national government and a structural federal state was evidence of American influence on constitutional law. A British influence on industrial law can also be observed in certain early industrialized Cantons by introducing industrial labour law.
The text characterizes the third wave as one of American influence and specifically deals with examples of the Osmosis of Anglo-Saxon legal concepts into Swiss law. Among those concepts are the Insider Dealing Law of 1978, the Stock Price Manipulation Law of 1987, the Stock Ownership Notification Requirement of 1991/1995, the Take-over Regulation of 1989/95, the Fast Transfer to Foreign Authorities of Swiss Security Market Information in 1995, the Consolidation of Corporate Accounts under IAS Standards of the 1990 and the Swiss Cartel and Antitrust Law of 1995.
In the conclusion Böckli states that there is no doubt that Switzerland is generally heading more and more in the direction of Anglo-Saxon and, more often than not, American concepts. Because of a complex parliamentary process and the traditional political practice of compromise, the results usually reached are watered down pragmatic solutions. But according to Böckli every single relevant point is originally taken from abroad.