“les suisses se lèvent tôt mais se réveillent tard” (Denis de Rougemont)
The editor is the pilot, driver or captain of the users and readers of this Anthology of Swiss law and legal culture. In the following preliminary remarks the editor sets some flags on his guiding mission.
a) The Anthology sails under the Leitmotiv “See it fresh – see it whole – see it as it works” – in general facts first – here texts first – by the American lawyer Karl Llewellyn who among others was an expert in the laws of the Continent of Europe. “See it fresh” challenges us to see it in an open, undisguised and new way. “See it whole” means we should see it impartially and holistically, and – this is key to the whole text oriented and text based approach – “See it as it works” calls on us to understand the functional requirements and operation of the legally relevant social reality in the legal process of globalization. Using this Leitmotiv as a metaphor, the Anthology in the part on Americanization as well is a contribution to the weaving of a complex carpet of cultural encounters and exchanges in law and legal culture before and in particular in post World War II time and beyond.
b) The Anthology situates the texts found as “objects trouvées” in their broader context from a dynamic and evolutionary perspective in primarily dealing with the emerging new world order after World War II. The Anthology attempts to increase the awareness and the accessibility of legal and cultural knowledge. It caters to a variety of potential uses common and state of the art to modern knowledge generation and knowledge management in academic writing. The Anthology has in mind the idea and vision of a “college of international lawyers” and their networking potential under the aspects of “comparability”, “compatibility” –and above all of “interoperability”. The Anthology is a starting platform of knowledge as a particular mis-en-scène of the legal dimensions of the historic processes particularly after World War II. It is meant to contribute to access, open up and to establish a “Denkraum” (Aby Warburg) (thinking space) for further academic and practical legal work. The Anthology in the part on Americanization does not pretend to present a theory or a theoretical framework of structured sets of information. It is an organized aggregation of information and has the primary function of a tool facilitating further observations and analysis of the topics; it therefore is situated in the toolboxes of “skills” and not in the “salons” of lofty legal sciences which have obviously missed some – or many? – of the boats in the early – and timely – observation and analysis of the upcoming dramatic and far-reaching changes of the legal process of internationalization and globalization in Switzerland. The theoretical discussion of law and legal practice is a reality science as defined by May Weber. The specific features of thought and action in legal processes such as Americanization, Europeanization and Globalization are often dependent at the meta-level on a specific mindset open to globalization; we coin the term – a globalization – adequate mindset – which applies a motivational position that favors the exploration of the legal process in globalization and a motivational drive inspired by curiosity.
c) The editor came to the conclusion that in view of the novelty and complexity of the processes and the texts found and in view of the constraints of the specific structure chosen and in particular in view of the variety – at the moment of time unknown – of possible uses in a modern electronic platform of communication that the writing an Introduction as of a floor in the texts architecture of this Tower of Babel became – advisable and even necessary. Because of the complexities of the processes of Americanisation Europeanisation and Globalisation and in particular because of the fact that the Anthology covers time periods until the very present time, the situation and the role of comments and introductions have a different and more pressing function than in other traditional parts of the Anthology at large. The totality of the editors comments in English therefore are conceived as a stand alone text. In that context, the Introduction plays a key role in establishing with the reader certain basic informations on the topics and the method of treatment of the topics. The introductions as a module are conceived as represented in the framework of the Anthology, as stand alone texts as well. The introduction is a mere non-footnoted description and a narrative of the process of Europeanization by the editor for the purpose of this Anthology.
d) The access of the reader and user to the aggregated knowledge may conceivably be selective in various ways. The limited reading of the introductions in the three parts for instance may give the user a first general overview as to how Switzerland fared in legal matters after World War II and what the processes observed and analyzed are to start with. The limited reading of the parts “background” and “summary” of the texts may convey a first and standardized insight into the content of the sequence of the texts in English irrespective of the language of the texts. The selective study of bibliographical references might lead to systematic further research and legal analyses. A study limited to the study of the biographies of the authors might give a revealing insight into the life and the education of the persons, who penned the texts contained in the Anthology and who were lawyers and professionals sailing in the winds primarily of post World War internationalization.
These varieties and variants of suggested partial and selective uses in this notion of stand-alone comments of the editor should not detract from the fact that the texts as such and as a whole are in the center of the Anthology and are to catch the interest – this time – of the readers.
e) In this autonomous notion of the comments of the editor there are a series of specific reasons for a stand alone role of the Introduction of the parts to the Anthology.
The choice of a new and different method of selection and description in the Anthology by establishing a process orientated perspective is better understood with an introduction. (1) In view of the fact that the Anthology is a work in process, the transparency of comments thereby established in introductions are a key element to communicate the method and the content of the endeavor (2); In addition the fact that a fully developed method under the heading of “how does law travel”, the pivotal element of the selection and the description of the phenomena does not exist yet in particular merits comments and an introduction (3). The fact, that the rigid structure spreads and disperses the knowledge found in 1. introductions, 2. texts, 3. bibliographical references and 4. biographies asks for a reintegration of the essential aspects in the form of holistic comments and introductions (4). The blindnesses and the biases of the primarily text orientation of the Anthology requires a re-integration complementing the texts by remarks of professional lawyers and shapers of legal reality and institutional environments breeding the respective legal creativity, if one wants to creatively deal with broader concepts of legal culture beyond law (5). In that context it has to be noted, that in Switzerland the discipline of cultural studies as part of modern disciplines of social sciences and humanities unlike in anglo-saxon academic environments is not fully developed yet, This particularly holds true in dealing with the issue of legal culture in the discipline of law. This enlarged field of observation and analysis can only be grasped by comments in the Anthology and introductory texts. The same holds true as regards to the inclusions of a modern multi – and transdisciplinarity including neighbouring social sciences and humanities which are relevant to law and legal culture.
As said above, the comments and introductions are autonomous and stand alone texts in the form of a non-footnoted narrative. It is legitimate and necessary to attempt to make accessible to the reader and user the preliminary results of the findings of the work of the editor. We have to accept that in various areas no full fledged academic knowledge does exist at the time of the making of the Anthology yet. Further research may shed more light on those findings, if ever and if at all.
f) The Anthology is marked by the professional education and professional work of the editor in international legal practice and as a professor in academia. Jens Drolshammer is an emerite (2010) professor of law at University of St. Gallen, Switzerland and a founding partner of Homburger Rechtsanwälte, an international commercial law firm in Zurich. He practiced internationally for many years, dealing with issues of European and American law and legal culture as well. He is a Swiss born citizen (1944) of partially Norwegian and German origin and spent his educational and professional life in post World War II and post Cold War times. He studied law at the University of Zurich, Geneva, at Michigan and at Harvard Law School. He spent about an aggregate of three years in the Swiss army, mainly in strategic matters and has been a member of the International Institute for Strategic Studies for more than 20 years. He has taught at the law school of the University of St. Gallen for more than thirty years, primarily on American law and American legal culture and on complex transactions. From 1999 to 2008 he has been in fall term seven times a visiting research professor at the Center for European Law Research at Harvard Law School mainly focusing on his projects on the area of globalization and the Americanization of law and legal professions. Therefore and faute de mieux he also is an author of various texts in the Anthology. The editor presently as an emerite is an individual entrepreneur without a university chair, secretaries, scientific assistants and research grants. He revels in the lower surgery of generating tools to better grasp the dimensions of the new world order after World War II and after the end of the Cold War by looking at the processes in the areas of Americanization, Europeanization and Globalization of Swiss law and legal culture. He shifted attention and work into this craftsmanship of lawyering after having realized that the conceptual, terminological and scientific suboptimalities and the limits of dealing with the “travels” of law and “impacts” of foreign legal cultures on the sea of Globalization are – as Americans say – “an elephant to big to chew”. In this search for tools the editor had to constantly strive to do the splits between search and vision, because he realized and is convinced, that knowledge of law and legal culture in its historic and international dimensions is a part of the general education of an national or international lawyer in present times as it always has or should have been. The editor does not regret to have worked on this tool as a “lonely longdistance runner” and has read more than four thousand pages of preselected texts in order to attempt to find a working structure and a tool kit to better understand the processes of Americanization, Europeanization and Globalization of Swiss law and legal culture. Without this search of the phenomena and the corresponding conceptual bricolage and collage one is lost with his one-man-kajack on the sea and in the fog of globalization.
g) The part Europeanization of Swiss law and legal culture of the Anthology uses as a leitmotiv the saying of Denis de Rougemont “les suisses se lèvent tôt mais se réveillent tard” (the Swiss get up early but wake up late). This metaphor is the guiding principle to the selection of texts on Europeanization characterising essential constraints of the Swiss and Switzerland after World War II faced with the emerging Europe, in particular the European Union. The part on Europeanization uses again a thread “travels” and “impacts” as a guiding principle to approach the complex and underresearched processes. The metaphorically rich and imaginatively provocative leading principle for the overall Anthology uses again the analogy to the work of the literary critic Edward Said and his essays “Traveling Theory” and “Traveling Theory Reconsidered”. The part on Europeanization as well is to be seen under the general leitmotiv “See it fresh – see it whole – see it as it works”, by the American lawyer Karl Llewellyn.
1.1 Purpose of the part on Europeanization and its relationship to the parts on Americanization and Globalization of Swiss Law and Swiss Legal Culture
This part of the anthology aims to cover the time period until the present time evidencing the dramatic and far-reaching Europeanization of Swiss law, occurring in parallel to the processes of Americanization and globalization. The introduction attempts to catch the broader lines of “travels” and “impact” of these developments on Swiss law and legal culture beyond the texts selected. The introduction puts a particular emphasis on the question, in what context and how Swiss institutions and authors dealt with the legal process of Europeanization. Since a generalised and unified methodology and description of the routes of “travels” and the “impacts” of the processes of Americanization, Europeanization and Globalization does not yet exist in Switzerland, we use in this introduction a selection of process-adequate methodological considerations and tools.
The categories of Europeanization, Americanization and Globalization refer to neighbouring and overlapping areas and processes. Americanization as a major factor in this historic development has a strong direct and indirect impact and is not unrelated to the factor of Europeanization. The Globaliza¬tion-driven overarching and overlapping legal process has a significant influence on the evolution of European and Swiss law, which in turn is directly influenced by American law and at the same time, has an indirect influence on Swiss law and Swiss legal culture as part of the process of Europeanization. Americanization and, in particular, Europeanization are the most evident and most important legal processes of “travels” and “impacts” on Swiss Law and legal culture after World War II. The concept of Globaliza¬tion goes beyond and attempts to grasp the internationalisation of Swiss law and legal culture on a meta level from general¬ised perspective – a global perspective – as part of a new stage of the process of globalization after World War II. We are of the opinion that the discontinuities of the world after World War II are all encompassing and that the process of Europeanization of Swiss law and legal culture is a direct consequence of World War II and the ensuing reconstruction of a new world order on the international as well as the regional level.
The main purpose of the chapter on Europeanization in this Anthology is to grasp and make accessible the complex, multistage and multilevel legal systems and legal institutions of an evolving Europe – particularly the EU – and its continuous, intense, pervasive and systematic impacts on Swiss law as part of a joint political design and Swiss legal culture – within geographic proximity, cultural vicinity, factual integration and an economic comparability in the most important area of Swiss foreign policy.
The “travels” and “impacts” of the unfolding process of Europeanization develop in an evolving structure and institutional framework and are driven by a political design corespective to the unfolding realisation of the principle of integration within the EU; the Europeanization of Swiss law and legal culture is realised at the same time by mostly cooperative and contractual legal instruments; that is, by treaties in the external legal relationship and by a far-reaching and self-chosen instrument of autonomous adaptation of Swiss law to EU law in the internal relationship under the principle of EURO compatibility. Switzerland not being a member of the EU, the process mirrors the historic, societal as well as the economic realities of factual and substantive integration of Switzerland in the EU. It is a reality that legal processes of Europeanization of Swiss law and legal culture are mostly driven by political considerations and national and supranational interests as well as – at times – political power.
The basic features of the legal system of Switzerland as a civil law-based country are close to the majority of the legal systems of the neighbouring member states of the European Union. The issue of Europeanization of Swiss law and Swiss legal culture touches upon the core of the identity of Switzerland as a nation and of Swiss law and legal culture – therefore, this issue is declared as the highest priority of Swiss foreign policy.
Swiss academia and political institutions dealing with the issue, at times have hesitations and difficulties to cope with the internal transformation and the external negotiations of the legal process of Europeanization. The key issue lies in the unresolved fundamental political decision as to where Switzerland – in particular the people and the cantons – will and want to end up in this process.
The selection of texts shows that the process of Europeanization may actually be viewed as a theatre of political action in which a steady reduction of political options for Switzerland is to be observed – parallel to the respective process of Americanization in the same time period. As outlined in the introduction to the chapter on Americanization, the process of “travel” of legal concepts and “impacts” after World War II has increasingly become a one-way street, this is also true with regards Switzerland’s relationship to the EU. Issues of mindset are deeply influencing the way in which Switzerland deals with foreign legal cultures and in particular with foreign negotiationing parties, which pursue their interest with power. Delays in assertive action due to delays of acknowledgement of the political reality, which are born in a constant forward and backward-looking hesitation to adapt to changes (Peter von Matt), taint the handling of the most pressing issues.
While the process of Europeanization of Swiss law after World War II essentially may be characeterised as a one way street of adapting to the rules of the large and emerging common and internal market of the EU, Swiss contributions to European legal culture of course anticipate this occurance. As a shy reminder we note at the outset that a still missing part of the Anthology – except for a number of texts contained within the section on International Law and Relations – could and should deal with aspects and texts of Swiss culture and prominent representatives of intellectual and spiritual life of Switzerland in general, such as Pictet de Rochemont, Jean-Jaques Rousseau, Johannes Calvin, Benjamin Constant, who all wrote seminal texts, which had important influences on the western legal thought. Alongside these could be included Johann Heinrich Pestalozzi (pedagogy), Jacob Burckhardt (history), , Ferdinand de Saussure (linguistics), Karl Barth and Emil Küng (theology), Carl Gustav Jung (psychology and psychoanalysis), Denis de Rougemont (publicist) and Léon Walras (economics), who all – if one uses a holistic view of the history of legal ideas – also made important contributions to the world of the western legal thought from their respective neighbouring humanities and social sciences. Moreover, if one would limit the view to the post-World War II- and post-Cold War period, a curious mind could conceivably have an eye on Switzerland as a safe haven or convening venue of creative spirits and legal and political thinkers involved in activities of high relevance with respect to the creation of law after the World Wars in general and beyond Swiss borders. Lenin’s work written in Zurich before his departure for Moscow come to mind, the visionary preparation of a new Turkey under Ataturk by a Turkish elite mainly living and studying at the shores of Lake of Geneva, as well as the unresearched issue of Theodor Herzl’s vision of a new state of Israel, which has been widely worked on and discussed in the first Zionist conventions by and large held in Basel and other locations in Switzerland after World War II.
A generally underestimated function of practitioners as shapers of reality certainly would need to be considered and described an essential part of Swiss legal culture before and after World War II. We mention among others Giuseppe Motta (Federal Council), Giorgio Malinverni (Judge on the European Court of Human Rights), Stefan Trechsel (Member of the Commission on Human Rights and Judge at the International Criminal Tribunal for the former Yugoslavia, ICTY), Luzius Wildhaber (past President of the European Court of Human Rights), Carla del Ponte (Head Prosecutor of the International Criminal Law Court in Ruanda as well as in the Hague Dick Marty (prosecutor in the Canton of Ticino, senator and head of the Commission of the Council of Europe), Gret Haller (member and President of the Swiss parliament and the parliamentary assemblies of the Council of Europe and of OSZE, Swiss Ambassador to the Council of Europe and Ombudswoman for human rights in Bosnia-Herzegowia), Nicholas Michel (Undersecretary of the UN and General Counsel of the UN), Pierre Tercier (President of the International Court of Arbitration of the International Chamber of Commerce in general), Robert Briner (President of the US Iranian-claims Tribunal in the Hague), Rudolf Blum (President and Secretary of AIPPI), Paul Gmuer (President of the International Fiscal Association) and Franz Reichenbach (President of the International Bar Association).
1.2 Swiss law and legal Culture and the process of Europeanization after World War II
a) Elements and causes of the accelerated process of Europeanization
The ideas and visions of an institutionalised and unified Europe clearly date back to before World War II. Among the precursors before the turn of the 19th century, are Dante Alighieri (1265–1321), Maximilien Bethune (1265-1321), (« le Grandes(e)n»), Baron de Rosny, Duc de Sully (1660-1641), Immanuel Kant, («a Perpetual Peace ») (1724-1804) and Victor Hugo (1802-1885), (Extrait de discours). The reader finds a text in the Anthology by Johann Caspar Bluntschli, a Swiss national (1808-1881) (« the organization of a society of European States, 18798 »). Among the precursors after the turn of the 20th century, the reader finds the texts of the « The Hertenstein Program », the Union Européenne des Féderalistes (1946) (text 2.2), the text of Winston Churchills speech in September 1946 to the academic youth in Zurich (text 2.3) and the text of Denis de Rougemont, Switzerland, a model for Europe (1965) partially dealing with the time before World War II (text 2.4). Other precursors of the 20th century include Conte Richard Nikolaus Caudenhove – (“Pan-Europe”), projet d’un pacte pan-européen, 1931, (1923), Alfiero Spinelli (1907-1986) and Robert Schumann, (1986-1963), (“Plan déclaration” de Robert Schumann) (1950). These are unfortunately outside of the scope of Europeanization section of the Anthology. They address though the phenomenon that Switzerland has always and often persons operating on Swiss soil have actively participated in the shaping of visions on Europe, in particular with respect to the time in the wake of European integration after World War II.
From a Swiss perspective a notion of Europe limited to the European Ecomomic Community, eventually the European Community and the European Union , is too narrow and does not adequately reflect the far-reaching participation of Switzerland in European developments after World War II, in particular , Organisation for European Economic Cooperation (OEEC later the Organisation for Economic Co-operation and Development, OECD), the Council of Europe, the European Convention on Human Rights, the KSCE process and various Hague Conferences, as well as global developments of key importance to Europe and Switzerland, in particular the GATT (later WTO), the Bretton Woods Institutions and the United Nations. Most of the Europeanization can be attributed to the process of European intergration within the European Union. At the same time, human rights protection has been strongly influenced by the European Convention on Human Rights and the jurisprudence of the Court.
The European Union is a community of law. In Switzerland’s principles of foreign policy, the position of the “principle of law” has the highest priority. Therefore, law is the key and pivotal instrument of the dynamic evolution of this relationship.
Like in the parts on Americanization and Globalization, this partdoes not contain a single text comprehensively addressing the history of the relationship of Switzerland and the EU with respect to law and legal culture. It could well be that the discipline of law is different from the discipline of history as law does not know the subdiscipline of “contemporary history” (Zeitgeschichte). Legal l history, exceptions granted, rarely covers the most recent decades and years of development of law up until the present. The texts of political scientists are helpful exceptions.
The selection of texts generally deals with specific issues, which are not described and conceived as part of an ongoing political, historic, societal and legal process. We equally lack conceptual and coherent texts on a well-founded and accepted methodological framework to grasp the dynamic processes of interactions, transfers and cultural exchanges of legal systems after World War II. These are of course exceptions And the reader will find more remarks on this subject later.
b) Milestones of the accelerated process of Europeanization
These milestones are a guiding tool for the reader and user to set foot on safe grounds of the dynamic unfolding of the principle of integration within the European Union which is often forgotten in our dealing with the time after World War II in Switzerland. We describe and list the milestones of the evolution of the organisations the European integration based upon professor Daniel Thürer’s chart (see texts 2.8, 2.15, 2.16, 2.17 and 2.28) in his documentation, “Integration Européenne-Idées de base: – documentation” prepared for a course taught in 2008 at the Institut des Hautes Etudes International Université Pantheon – ASSAS (Paris II) which will be reprinted in a planned publication of Daniel Thürer written in French.
The chart contains beyond the evolutions within the European Union evolutions in a broader European context.The chart will serve beyond a timeline of reference as a framework of references for the evolution of the relationship between Switzerland and the EU in the area of law and legal culture from a broader perspective, which helps to reflect the broad European involvement of Switzerland after World War II. We highlight the major steps of the evolution of the relationship of Switzerland to the European Union in a separate column and will revert to some of the steps in more detail later.
Chronology Deepening Enlargement Switzerland
1948 OECE, succeeded by OCDE,
(adhesion of Switzerland…)
7-10 May 1948 Grand Congrès de La Haye, at
the time called « Congrès de l ‘Europe »
18 February 1949 NATO
5 May 1949 Council of Europe (adhesion of
Switzerland…)
4 November 1950 European Convention of Human Rights,
(adhesion of Switzerland…)
18 April 1951 Signing in Paris of the treaty establishing Europe of Six:
the European Community of Coal and German Federal
Steel (CECA), entering into force: Republic, Belgium,
January 1st, 1952 France, Italy,
Luxembourg and
Netherlands
27 May 1952 Signing in Paris of treaty establishing
a European Defense Community
(CED) – rejected by France in 1954
25 March 1957 Signing in Rome of the treaties establishing
the European Economic Community (CEE)
and the European Community Atomic
Energy (Euratom) – entering into force:
1st of January 1958
4 January 1960 The European Association of Free Trade
(AELE) (adhesion of Switzerland…)
1st July 1968 Entering into force of the customs union
(common market)
1st January 1973 Europe of Nine:
Adhesion of
Denmark, Ire-
land and Great
Britain
1975 Signing of Final Act of Helsinki
Laying down the parameters and the
principles of action of CSCE (later 1995:
ESCE)
7-10 June 1979 introduction of the European Parliament,
universal direct election
1st January 1981 Europe of Ten:
Adhesion of Greece
14 June 1985 Signing of the Treaty of Schengen on the
gradual suppression of controls at the common
boarders (Federal Republic of Germany,
Belgium, France, Luxembourg and the
Netherlands, followed by other States)
1st January 1986 Europe of Twelve:
Adhesion of Spain
And Portugal
17-28 February 1986 Signing of the Acte Unique Européen –
entering into force on 1st of July 1987,
(gradually extended for the free cir-
culation of goods, persons, services
and capital)
7 February 1992 Signing of Maastricht Ttreaty on the
European Union – entering into force:
November 1st, 1993
1st January 1993 entering into force of the free circulation
of goods (unified common market)
1st January 1995 Europe of Fifteen:
Adhesion of Austria,
Finland and Sweden
2 October 1997 Signing of the Treaty of Amsterdam –
entering into force: May 1st, 1999
1st June 1998 création of the European Central Bank
(BCE)
1st January 1999 Euro becomes the single currency
within the EU zone
26 February 2001 Signing of the Teaty of Nice – entering
into force: 1st February 2003
1st January 2002 first circulation of bank notes and
coins in Euro (Euro zone)
1st May 2004 Europe of Twenty-
Four:
Adhesion of Cyprus,
Estonia, Hungary,
Latvia, Lithuania,
Malta, Poland,
Slovakia,
Slovenia and the
Czech Republic
29 October 2004 Signing in Rome of a treaty for the establish-
ment of Constitution for Europe – rejected by
France and by the Netherlands in 2005
1st January 2007 Europe of Twenty-
seven:
Adhesion of
Bulgaria and
Romania
The history of European integration has been brought about in steps and stages, whereby the pendulum at times swung from Eurosclerosis to Europhobie. Interrupted by political crisis, the development has been neither steady nor constant. Within the EU the driver was the principle of integration and the unfolding of its creative potential.
The development of the relations between Switzerland and the EU were roughly parallel and developed in corresponding steps and stages as well (see Early Milestones of the relationship between Switzerland the EU, below).
c) Early milestones of the relationship between Switzerland and the EU
After World War II, due to the principle of neutrality and a self-imposed limitation on a particular economic perspective in view of the Swiss dependence on world markets, Switzerland’s flexibility to participate in international organisations was initially limited. On regional and international levels, Switzerland had not been invited to join the newly formed United Nations. Although early on it became a member of OECE (succeeded by OCDE) and GATT (succeeded by WTO). With respect to Europe from a broader perspective, Switzerland became a member of the Council of Europe and adhered to the European Convention of Human Rights. It took an active part in the efforts of the CSCE leading up to the final Act of Helsinki in 1975.
On the 4th January 1960 Switzerland joined the European Association of Free Trade (EFTA) together with the United Kingdom, Sweden, Norway, Denmark, Iceland, subsequently enlarged to Austria, Portugal Finland and the Principlailty of Liechtenstein. It was an answer to the failure of creating a large European Free Trade Zone within the OEEC following the creation of a customs union of the EEC. Except for Switzerland, Norway, Iceland and Liechtenstein, all parties left for the EU. Moreover, Norway, Liechtenstein and Iceland joined the EEA Agreement in 1992, leaving Switzerland the sole EFTA country outside a multilateral framework linking it to the EU.
In September 1962 the delegation of the Federal Council of Switzerland presented to the Council of Ministers of the European Economic Community (EEC) in Brussels an initiative to start negotiatons on a closer association between Switzerland and the EEC. These efforts failed due to internal obstacles as a closer association was deemed incompatible with the Swiss priciples of neutrality, federalism and direct democrary. It also failed due to objections of French President de Gaulle at the time. EFTA eventually embarked upon preparing negotiations for a free trade agreement which was realized in 1972, linked to the accession of the UK and Denmark. Subsequently, Switzerland built her relationship to the EU on the basis of the 1972 Free Trade Agreement (FTA), adding more than 130 additional instruments. The legal acts between Switzerland and the later EU were international public law treaties. The relationship was characterized by an autonomous application and interpretation of the treaty, a mixed committee of diplomatic nature, an absence of decision-shaping in the EU and an absence of legal conflict resolution mechanisms. Thomas Cottier characterizes the institutional architecture of the relationship between Switzerland and the EU as being characterized by fifty years of institutional abstention in the political and legal process of European integration.
A major milestone was the negotiation of the European Economic Agreement, which was at the same time and jointly negotiated between the European Community and EFTA and the EFTA member countries. Unlike other EFTA countries, Switzerland was well prepared when the EU embarcked, based upon the 1986 Single European Act, on its internal market program. There was no genuine interest on the part of Switzerland to join the offer of the EU to embark on the European Economic Area Agreement, fully integrating EFTA countries into the emerging common market by essentially granting the four freedoms on the free movements of goods, services, establishment and capital. By a narrow popular margin and a high margin of cantonal votes, the adhesion of Switzerland to the EEA agreement was voted down in 1992. In connection with the signing of the EEA Agreement, Switzerland placed an application of adhesion as a full member, which has never materialised and at various stages raised considerable internal political and legal concerns, even leading to an express popular vote on the prohibition of the Swiss Government to formally negotiate with the EU on full membership. This was voted down by the people of Switzerland. Full membership thereafter has remained the major strategic goal of Swiss foreign policy vis-à-vis the European Union until 2009 when membership was downgraded to a mere option among others in the pursuit of Swiss EU relations.
The following steps after the failure to adhere the EEA Agreement increasingly started to influence Swiss law and Swiss legal culture, which gradually became Europeanized despite formal absence from EU membership. The process is not systematic. It is partially based on international public law treaties as well as on autonomous national law anticipating harmonisation by adapting or harmonising Swiss law. The maxim of “EU- friendliness” in structuring the Swiss legal system became obvious and operative. Since 1988 it required an analysis and test of Euro-compatibility of all Swiss legislations. This method of self-chosen and self-imposed creation of “Swiss European law” was called “autonomer Nachvollzug” (in Switzerland in official documents at times called “autonomous implementation“as well as “voluntary”“or “unilateral alignment“).
Parallel to the realised strategy of concluding “bilateral treaties” other areas of law through their European legal instruments had a great influence on the Swiss legal system and Swiss legal culture and are important features of the process of Europeanizaion. This is, in particular, the case with the European Convention on Human Rights. Beyond that, a series of bilateral agreements of international public law between members of the EU and between non-EU members have also greatly contributed to the impulses for a pan-European unification of EU-law, among others the European Patent Convention and the Lugano-Convention.
d) Switzerland’s bilateral agreements as key instruments of a “third path” of the relationship between Switzerland and the EU
The description for the stated purpose of this introduction follows largely the description in Mathias Oesch’s text (2.19), which is the only text found addressing this chronology in a systematic and conceptual manner.
The starting point and basis of the bilateral relations between Switzerland and the EU is the Free Trade Treaty of the 26th July 1972. This agreement was negotiated jointly by the EFTA-member states and was put into effect by the European Economic Community at the time and each member country of EFTA bilaterally. The Free Trade Treaty assured the mutual market access in the area of industrial goods and agricultural goods. The contractual arrangements were favourable to bring about the vision of the European Common Market. The treaties were modeled partially based upon GATT or the treaty on the foundation of the European Common Market. The Free Trade Treaty as well as the more than a hundred additional agreements and protocols led to a first intensive wave of Europeanization of Swiss foreign trade law in 1970.
In the area of services negotiations have led to the agreement on direct insurers with the exception of life insurances on 10th October 1989. The agreement guarantees the freedom of establishment of insurance agencies and branches between Switzerland and the EU on the territory of the contracting parties on the basis of non-discrimination. It entered into forceon the 1st January 1993.
In 1989 Jacques Delors, then president of the European Commission, proposed the creation of an Economic European Area, in which the EFTA member states were to be integrated into the European Common Market based by and large upon the four freedoms. The agreement was signed on May 1992. After the rejection of this by Swiss voters, the application for full membership was frozen and the Swiss Government backed away from negotiations for full membership. Thereby bilateralism was instituted as the primary option pursued by Switzerland. At the same time, Switzerland increased its efforts to compensate the disadvantages resulting from its isolated position by adopting a systematic and continuous planning and structuring of the Swiss legal system in a Euro-compatible manner, embarking on a sectorial deepening of the relationship with the EU. This was with the aim, on one hand, to maintain the competitiveness of the Swiss economy and, on the other hand, to facilitate the full and complete participation in the European process of integration.
Seven major sectorial agreements in the group “Bilateral I” complemented the Free Trade Agreement of 1972 by step-by-step and controlled mutual access to markets, on movement of persons, on technical trade barriers, various aspects of public procurement, on trade with agricultural products, on air traffic as well as on traffic of goods and persons on rail and roads. The “Bilateral I” agreements are linked with a “guillotine” – clause bringing about an overall balanced result of the negotiation dossiers with each other at the request of the European Union (see the text by 2.19, Matthias Oesch).
On the 21st June 1999 a series of sectorial agreements were concluded called “bilateral II”. Regarding the “bilateral I” the Swiss people voted yes by 67.2% to the seven agreements. The agreements entered into force on the 1st June 2002.
In 2001 a second cycle of negotiation was initiated. The majority of the dossiers related were leftovers of the bilateral I round. The Swiss position of Swiss demandeur changed, when an agreement was reached on the issues of interest on taxation. From the “bilateral I” agreements nine agreements were signed on the 26th October 2009. These nine agreements went beyond the economic framework of bilaterals I and II and included areas of political and scientific cooperation. The agreements on the association of Schengen and Dublin were voted on by the Swiss people and were accepted by 54.6%.
While the bilaterals I and II were negotiated between Switzerland and the EU, the scope of application were automatically extended to the new members. The agreement on freedom of movement, which was a so-called “mixed agreement” required adaptations, which were accepted by the Swiss people regarding the extension of EU-membership to Bulgaria and Romania with 59.6%.
The acquis of Switzerland and the European Union consists of twenty major agreements and more than a hundred secondary agreements. According to Mathias Oesch (text 2.19) the agreements lack a coherent overall conception as well as coordination. The process was governed by a broader, punctual, pragmatic and inductive approach. Subject matters have continuously been expanded and the negotiation process has continuously been obscured by these joint negotiation processes. In order to better understand the process of Europeanization of Swiss law and legal culture a clarification of the legal notion of the Bilateral agreement is necessary: they are classic international public law treaties containing elements of a “partial” integration agreement (air traffic) or an association agreement (Schengen and Dublin). With respect to content the agreements are generally based on the principle of equivalence of the legislation or on the taking over of the Acquis Communitarian.
Various agreements and additional secondary agreements according to Matthias Oesch are not anchored in a joint institutional framework. Each agreement contains separate provisions in that respect. In principle, the administration and control of the execution of the individual agreements follow a classic form of diplomatic cooperation. Application and execution are the primary tasks of the administrations and the courts of the contracting parties. The institutions of “mixed” committees as form for the supervision of the orderly functioning of the agreement, as a solution of possible discrepancies lead to an institutional architecture, which is not satisfactory in the daily application of law. The periodic underdevelopment of the agreements was brought to light in the extension of the acquis Switzerland. The EU has long neglected the institutional questions and overall solutions, such as the accession to the EEA. The proposal made by Switzerland in 1988, to negotiate a “Global Framework Agreement” has not yet materialized.
e) Possible future scenarios of the development between Switzerland and the EU
The project of the Framework Agreement is blocked. The EU was for a dynamisation of all treaties, like in the EEA, while Switzerland favoured autonomer Nachvollzug and was not in favour of a multilateral and supranational supervision and conflict resolution mechanism. The EU as a precondition for the negotiation of further bilateral agreements now demands from Switzerland an institutional set up and framework between Switzerland and the EU for conflict resolution and homogeneous application of law in the whole territory. The options for the respective Swiss position are described in the formal opinion by Daniel Thürer for the Swiss Government (text 2.28); the position of the Swiss Federal Tribunal is to be found in text 2.29.
A prediction of the future has to take into account considerable developments in the concepts of sovereignty in the European Union. The European Union according to Thomas Cottier has become a supranational community based on a step by step and by trial and error adaptation to post-national-states and cooperative sovereignty in the member states. This leads to multilevel governments as well as a de jure integration and substantive sovereignty.
Switzerland in its autonomous foreign policy on the basis of selective treaties of commerce – by perpetuating a concept of traditional sovereignty – has stayed with its institutional absence in the process of integration, which leads to a defacto integration but a formal sovereignty.
The change of the position of Europe in a multipolar world has to be taken into account, when one looks into what the future could possibly hold for the future relationship between Switzerland and the EU. Among those changes is the fact, that the transatlantic preeminence and dominance is no longer a reality. According to Thomas Cottier, the pursuing of European interests in the world necessitates a high degree of integration and a cooperative sovereignty, including in questions of currency. Nowadays it is obvious that to a large extent the destiny of Switzerland in a multipolar world is likely to depend on the success of European integration. Therefore, according to Thomas Cottier, Switzerland has to reconstruct and reconfigure its traditional notion of sovereignty, with or without framework agreements.
Amongst the established options of the relationship between Switzerland and the EU according to Thomas Cottier are an accession to the EEA agreement with renewed negotiations; the conclusion of a customs union and the integration of the policy of foreign commerce including a dynamization of secondary law and the full membership to the European Union, with or without currency and economic union.
Amongst the options to overcome the impasses within the bilateral route are a unilateral dynamisation of the sectorial treaties;, a bilateral dynamisation in form of an association; the rapprochement to EEA institutions and procedures and a rapprochement to the WTO conflict resolution mechanism.
Whichever general option will materialise and whichever options within the bilateral route come to the foreground, the influence of the Europeanization of Swiss law and legal culture is certain to increase. Any move forward will bring about more intense cooperation and community in legal matters as well. Once the turbulence in connection with the financial and the Euro-crises has been solved on the institutional levels within the EU as well, it will again become clear that law is the preeminent instrument of bringing about European integration. The EU and countries or treaty networks connected with it will be governed by the rule of law onward and beyond. This general principle of law and the fact that we are faced with a legal relationship based upon a joint political will has a decisive influence on the type and the nature of the influences and impact of European law on Swiss law and legal culture.
1.3 Characteristics and peculiarities of the dealing with the process of Europeanization of Swiss law and legal Culture
Whether the Swiss people or the Swiss government like it or not, the constant unfolding of the principle of integration within the European Union has become the key concern of Switzerland’s foreign policy. This process and project seem to be irreversible even in light of the deep financial crisis of 2008 and the ensuing Euro-crisis of 2012. Since the European Union is conceived as a community of law, the diffusions and transformations of legal concepts of the European Union into Swiss Law and legal culture in essence is a legal process. Law is the major instrument of structuring and transforming Switzerland’s relationship to Europe, mainly the European Union.
The selection of texts in the Anthology does not address the often forgotten reality that the historic, political, societal, economic and legal phenomena of Europe in the post-World War II period cannot be equated to the phenomenon of the European Union. The Anthology focuses mainly on this relationship and does not address the legal implications, for instance, of the membership of Switzerland in the Council of Europe and in the KSZE process, in which Switzerland was and still is an active and full member. We recall the particular importance of Swiss membership to the European Convention on Human Rights. The focus of the Anthology on the “travels” and “impacts” of law and legal culture of the European Union, should not forget the fact that Switzerland after World War II – although not having been invited by the victorious powers of World War to II become a member of the United Nations – has actively participated in UN Organsations, the GATT, (later WTO), the IMF and the World Bank, OEEC (later OECD) in the Hague Conferences and, as further examples, in a series of multilateral international public law treaties in the areas of industrial property law before becoming a full UN Member in 2002. .
a) Factual elements
If one attempts to look at characteristics and peculiarities of the process of Europeanization of Swiss law and legal culture in Switzerland, the way that this process is dealt with is co-determined by certain factual elements. Switzerland geographically lies in the heart of Europe. The country is economically integrated into the European economy and the national industries of the member states. It is culturally part of the European culture in many respects. Because of the country’s lack of access to the sea and lack of natural resources, with the exception of water, Switzerland became industrialised and internationalised early on, and developed an economy that is heavily dependent on and interdependent with the world.
Switzerland has a long-standing tradition of respect of foreign and international law. The country is said to have open-minded law-makers, judicial administrators and judges educated and experienced to deal with the “travels” and “impacts” of non-Swiss Law. Switzerland also has legal practitioners in private practice and in private enterprises which have an above average and long-standing education, training, international exposure and experience in dealing with foreign, regional, supranational and with international law in general in their day to day operations.
From a legal history and comparative law perspective, the Swiss legal system has many non-Swiss sources. It is part of the civil law family like the majority of member states of the EU.
It has to be mentioned again as well, that major visions of the future of Europe before and after World War II have been developed on Swiss soil, by Swiss as well as by foreigners, which were relevant and important for the process of Europeanization after World War II.
b) Elements of mentality and style
There are factors of Swiss mentalities and political realities hindering and interfering with the political and legal process, despite the fact that context and background in Switzerland constitutes a factual basis favourable to the understanding of the process of Europeanization of Swiss Law and Swiss legal culture.
The motto of the Europeanization part of the Anthology by Denis de Rougemont (text 2.4), “les Suisses se lèvent tot, mais se rêveillent tard,” is to the point to the process of Europeanization as well: Switzerland and a majority of its relevant legal and political subcultures are at times a victim of an irrational and a self-inflicted lack of creativity and decisiveness vis-à-vis political realities; in particular, if the pace of change is fast and if the design and process is influenced and driven beyond normalitly by political power.
Switzerland constantly tends to be torn between a creative forward-looking and a reactionary backward-looking mindset (Peter von Matt, text 2.34), which negatively affects its ability to perceive political realities and grasp opportunities of political freedom of action.
The structuring of the relationship with the EU shows that Switzerland’s decision not to become a full member has more and more led to a situation in which Switzerland does not and cannot actively participate in, for instance, the decision-making of the substance of the legal system and legal culture of the EU.
Member countries and Switzerland have not always managed to establish a situation of constructive mutual trust and often show irritation and contestation. The reproach of “cherry-picking” is undying and an often-heard criticism regarding Switzerland. Recurring issues are that certain parts of the tax laws of certain cantons bring salient competitive disadvantages to member states of the EU countries and that the staunch defence of the banking secrecy almost makes Switzerland an accomplice to tax evasion of nationals of EU member states.
These factors, among others, have at times negatively interfered with constructive dialogue and negotiations. An often-heard opinion in this context is that Switzerland has no real friends among the member states left to help to sail the unruly sea of Europeanization with more ease and grace – et avec plus de fortune.
c) Elements of Governmental Policy-making and Diplomacy
Concerning law and legal culture, the relationship between Switzerland and the European Union after World War II has generally developed in parallel to the unfolding of the principle of integration within the EU. The “travels” and “impacts” happened basically within a contractual framework with the EU and within a pervasive direct or indirect harmonisation of the Swiss legal system within Switzerland. The shaping of the relationship with the EU – contrary to the process of Americanization for instance – is part of a process with a political finality. The process of Europeanization in Switzerland is more transparent and forms a stronger part of the public debate than the processes of Americanization and Globalization. The process is closely observed by academia and in various types of media and is part of the public awareness and consciousness and of public opinion in general.
The phenomenon of Europeanization of Swiss law, in fact, is an all-encompassing phenomenon influencing the political and the legal process on the governmental side on all levels, including the cantons and the people on the private side, all actors having economic activities within the EU as well as the connected legal professions.
The direct and indirect harmonisation and adaptation of law has transformed the respective parts of Swiss law and legal culture to the point, that the Swiss legislators, administrators and judges as well as the legal practitioners may no longer apply their national Swiss laws without an in-depth knowledge of the corresponding parts of the EU legal system.
The Swiss government has a special administrative entity called “Integrationsbüro” (Bureau of Integration) as a central institutional instrument of legal analysis, policy making and communication. This entity was originally a joint venture between the Department of the Economy and the Department of Foreign Affairs. It now is exclusively controlled by the Department of Foreign Affairs.
The Swiss government moreover operates in Brussels independently from the Embassy through a special mission, which coordinates the various issues with the EU-institutions.
Due to the pervasiveness of the process of transformation and adaptation through a self-chosen and self-imposed “autonomer Nachvollzug” as unilateral alignment, the majority of the departments and administrative agencies of the Swiss Government have their own specialised administrative entities and informal national and international networks in the respective spheres of their competencies and interests.
The Department of Justice through the Federal Division of Justice continuously and systematically monitors and takes EU law and policies into consideration in the legislative planning and consulting activities.
The Swiss government is under a legal obligation to transparently and openly address the issue of Euro-compatibility of a proposed legislation in the regular reports preparing the parliamentary debates of such legislation.
There exist many informal networks on the level of administrative authorities, on the level of the government itself, as well as on the level of the Parliament with the corespective entities of the institutions of the European Union.
The European Union in turn has a mission (embassy) in Switzerland, the ambassador traditionally taking an active stand in public explaining the respective issues and positions of the EU and regularly addressing critical issues of Swiss attitudes and actions in a direct and open manner.
In the federal system of Switzerland, the cantons themselves have their own administrative entities dealing with their internal and external issues affecting them by the process of Europeanization.
Due to the partially direct applicability or indirect taking into account of EU law within the process of Europeanization, judges and courts have equipped themselves to deal with this issue in a systematic and well-founded manner. The Federal Tribunal for instance (see for instance text 2.29) is consulted by the Swiss government on their attitude on the relationship between Swiss and EU law on an institutionalised basis.
The relationship of Switzerland with the EU is among others a regular and important agenda and program item of the leading political parties.
Moreover there are special civil society-based organisations as intermediary bodies dealing with the issue of Europeanization from various points of view of the political spectrum. (Need to mention NOMES and ELEC,and refer to websites).
In professional organisations such as the independent but industry-financed think tank, Avenir Suisse, the issue has a high priority.
The issue reaches a high degree of analyses and information and is widely covered by the media. The major media outlets such as TV and newspapers have local corresponding representatives in the EU member states and in Brussels, sometimes in Luxembourg, at the seat of the European Court of Justice and in Strasbourg, at the seat of the European parliament.
d) Elements of the academic and professional work
The elaboration of the part on Europeanization led the editor to the following general observations and remarks.
The process of Europeanization of Swiss law and legal culture has become an institutionalised and an important part in many respects in universities sincethe end of World War II.
European law is an important subject of research and a regular and compulsory subject on the curriculum of every law school of Swiss Universities.
European law is systematically studied and researched at specialised university-affiliated organisations and institutes.
Professors teaching European law regularly have an education and training outside of Switzerland and have a special mention of “law of European integration” in their venia legendi at their universities.
It lies in the nature of the subject that in view of the freedom of movement a certain number of professors are EU-nationals teaching EU- law in Switzerland.
European law is regularly analysed in formal opinions by law professors on behalf of the Swiss government (see for instance 2.28).
Swiss scholars and professors are members of international scientific organisations on the continent of Europe, be they national or regional, such as, scientific associations in the area of international public law, constitutional law and procedural and comparative law or professional organisations of attorneys of law or inhouse counsels.
It further can be observed that specialised master programs in law schools came into existence addressing European law in a more in-depth fashion.
Some law schools have formalised cooperations and even double degree programs with law schools in universities within the EU.
Regarding legal research it has to be mentioned, that writings of Swiss scholars on issues of the legal relationship between Switzerland and the EU in general are not published outside of Switzerland. It moreover seems that Swiss publications are below average studied and recognised within the EU.
On the other hand, there are rarely EU-authors specifically addressing issues of the legal relationship between Switzerland and the EU in EU or in Swiss law journals. It is obvious that, from an EU perspective, dealing with the legal relationship between the EU and Switzerland does not have a high priority on the agenda of academia of EU universities, exceptions granted.
The student body is frequently participating in student exchange programs both at the bachelor level and increasinlgy a considerable number of Swiss students have been trained in master programs at academic institutions and law schools within the EU.
It is a fact that for many years before World War II and in early post World War II times, law professors emigrated from Europe to the United States and were keen observers of the various processes of institution and organisation building in Europe. Quite a number of European scholars for instance – Swiss scholars as well – had their first exposure to European law and legal culture at the law school of the University of Michigan with Eric Stein, who authored, with Peter Hay, the seminal casebook, Law and Institutions of the Atlantic Area.
Expectations around the time of the popular vote to join the EEA – Treaty in 1991 – have not been fulfilled and have disappointed eager Swiss students and practitioners studying the European developments. European law has not matured into an independent specialisation within the legal professions in Switzerland despite the fact that, for instance, Swiss business law in Switzerland cannot be applied anymore without in-depth knowledge of the corespective EU-law. Even if the law to be applied is internal Swiss law, Swiss law firms generally still turn to specialists in European correspondent law firms to obtain professional advice on EU-law.
With few exceptions, Swiss law firms have not ventured beyond their borders and opened offices in Brussels or in London while European law firms have not set foot on Swiss territory. Amazingly, Swiss law firms have not taken advantage of the freedom of movement and the freedom of services and integrated lawyers from EU member states into their law firms.
The professionals in Swiss law firms and legal departments of enterprises regularly take part in international professional organisations, some of which are focussed on European membership, some of which are global, having special entities dealing with European law.
An important factor in the process of Europeanization is that industry organisations generally have direct representatives in Brussels or exert their influence through pan-European or worldwide industry organisations located in Brussels.
Because of the conflict of law principle of effect EU-law has been of great importance to Swiss multinational enterprises. Some of them have actively participated in the furthering of European law in cases such as Hoffmann La Roche, Sandoz as well as Nestlé.
Legal departments of the major Swiss multinationals – contrary to larger international law firms – regularly have EU lawyers on their staff working out of Switzerland.
Nevertheless, it can be noted that there is a deficiency and a lack of indepth analysis of future developments and effects of various options of developments in the relationship between Switzerland and the European Union from a strategic perspective in legal departments of Swiss multinational enterprises as well as in international law firms. This corresponds with a general and notorious strategy-averse attitude in professional matters in law.
The elaboration of the part of Europeanization of the Anthology led the editor to the following general observations and remarks.
The editor is a pilot, driver or captain of the reader and user of the Anthology as said at the outset. He facilitates the access and walking through the various roads he might take in obtaining information on the process of Americnaization of Swiss law and legal culture. Since the Anthology uses new methods of knowledge generation it produces the following issue. The knowledge generated by such new methods in the first stage of observation and analysis has not been further analized by the academic or professional community yet. The process of making the Anthology itself produces an agenda for possible further analysis and research its findings on the process of Europeanization. It seems to be inefficient and unrealistic to wait until such further analysis and research has been elaborated in the community of scholars, if at all. The editor therefore takes the liberty to use as an essential element of guidance some preliminary observations relevant to the use of the Anthology. This is all the more warranted in view of the lack of a systematic and coherent present analysis of the phenomenon. From this vantage point we summarize a few basic observations and conclusions on the type and style of texts found and on the education and profession of the authors of such texts. The basic information of the contents of the texts found are contained in the paragraphs “background” and “summary” for each text under 2.
Most of the texts have been written for special occasions and on special topics. It is therefore difficult to have an overall view in the Anthology of the phenomena in Switzerland of the specific avenues of “travels” and “impacts”, because they do not deal with the process of Europeanization as such. Most of the texts are short and have been published in traditional academic publications of law. Only a minority of the texts are excerpts from major publications such as monographs. The majority of the authors are Swiss. The texts are published in the original language; the growing number of texts written in English lately has to be noted. The texts by and larger have been published by Swiss publishers, which is a revealing element of the “Swissness” of the attempts to selectively grasp the process of Europeanization after World War II. Because of an earlier direct exposure of international lawyers and members of the legal administrations in international legal matters, the trends of the influence of Europeanization on Swiss law and Swiss legal culture, have generally first come to the attention of practitioners and only later – to internationalists in academia. The majority of authors of texts work in the German speaking part of Switzerland. Exceptions are the texts written in the institutional environments of Lausanne and Geneva, which are situated in the French speaking part. Under a concept of legal culture it is necessary and advisable, to turn to the biographies of the authors, which are an integral part of the Anthology. There is a high correlation between internationalist educations and/or international professional activities and authorships in the Anthology. The phenomenon of Europeanization can only be grasped, if the user follows the gradual internationalization after World War II of the legal education and the professional activity of the authors represented in the Anthology. Under the broader aspect of legal culture the same holds true for a necessary inclusion of the institutional environments in Switzerland catering international legal matters. It has to be noted, that a number of the texts of the Swiss and non Swiss authors have been in a first phase after World War II either written or translated to in english. In the phase starting about 40 years after World War II, more texts have been directly written in English.
In the context of a standalone concept of the various categories of comments of the editor in the Anthology, he advises readers and users to first read the parts “background” and “summaries” on all non English texts contained in the Anthology. The reader and user finds a guidance on possible sequences of reading the texts of this Anthology in the Introductory remarks under 3 below.
The reader and user beware and be aware of the Leitmotiv of Denis de Rougemont “les suisses se lèvent tôt mais se réveillent tard” (“The Swiss get up early but wake up late”)