Alexandra Gerber, Der Einfluss des ausländischen Rechts in der Rechtsprechung des Bundesgerichts, in: Osmose zwischen Rechtsordnungen: Berichte des Kolloquiums anlässlich des zehnjährigen Bestehens des Schweizerischen Instituts für Rechtsvergleichung, Zurich 1992, pp. 141 – 163.
Alexandra Gerber – Einfluss des ausländischen Rechts in die Rechtsprechung
Background
In addition to the classical elements of interpretation (grammatical, historical, systematic, teleological) described in Part II F. 1., the Federal Supreme Court also comparatively refers to foreign law in interpreting norms. At times, it may be required by law with a view to achieve harmonized application and interpretation. Thus according to Protocol No 2 on the uniform interpretation of the Lugano Convention (Convention on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters), in applying and interpreting the Convention courts must take due account of the principles established in relevant decisions of the courts of other signatory states and in decisions of the Court of Justice of the European Union relating to the Convention. Even where not mandatory, there are good reasons to consider foreign law, such as in particular when legislators themselves have referred to precedents in foreign law. Such would also be appropriate for example for institutions in Swiss law which embody a cross-border legal culture or reflect cross-border judicial concepts or express a common legal conviction in that vein. Comparing legal systems is also instructive for the identification of peculiarities of Swiss law versus foreign law and for exploring the reasoning behind different regulatory approaches. Particularly when interpreting open legal norms and in case of legal gaps in Swiss law, referring to foreign law can yield convincing results. Where different countries pursue different legal approaches, the Federal Supreme Court can weigh the relative advantages and disadvantages. The Federal Supreme Court began referring to foreign law in interpreting and filling legal gaps in the law at an early stage, likely because the country had less available judicature and legal literature as a small country than did its large neighbour states. Because of Switzerland’s multilingualism and the widespread use of English there were few language barriers to overcome in order to refer to international precedents and literature and comparative law publications. The Federal Supreme Court also obtains valuable information through direct contact with other supreme and international courts (see Part I B. 3.). Today, the internet makes it even easier to explore foreign law. The Swiss Institute of Comparative Law in Lausanne, an independent federal institution affiliated with the Federal Department of Justice and Police, offers helpful expert advice on foreign law and different legal cultures.
The text by Alexandra Gerber below provides a summary analysis of the importance of comparative law to Federal Supreme Court rulings up to 1989, a period during which Swiss law was much less influenced by international law, and EU law in particular, than it is today. A discussion of the more recent Federal Supreme Court rulings is provided in the summary found in Part II G. 2. 2. See also the case law in the cluster on international intellectual property.
Summary
The author, who was a research associate and court clerk (judgement editor) at the Federal Supreme Court for many years, reviews all officially published Federal Supreme Court decisions from 1875 to 1989 in which the Federal Supreme Court comparatively referred to foreign law in its rulings. She found a total of 1541 decisions, excluding cases of debt collection and bankruptcy law, federal social security law, international law and judgements in which the Federal Supreme Court applied foreign law as such. It is interesting to note that referencing foreign law was similarly frequent toward both the beginning and end of the period reviewed, declining in between (1890-1920 averaging over 20%, 1921-1940 13%, 1941-1960 7.2%, 1961-1980 6.7%, 1981-1989 11%, trending upward to 1988/1989 20%).
The ways in which foreign law was approached varied widely. In most cases, only brief reference was made to the legal situation in other countries, to foreign court decisions or authors. Roughly one fifth of the judgements elucidated foreign law in more detail, and about one eighth addressed it in depth. The German legal system was studied most frequently – in 90% of rulings – either on its own or along with other legal systems. This is probably due to the similarities between Swiss and German law, the shared language, and how many federal judges studied law in Germany in the late 19th/ early 20th centuries, to the presence of German law professors in Switzerland and a large body of published German legal literature (as well as the Federal Supreme Court’s corresponding bibliographical acquisition policy). French law was referred to in a quarter of judgements, while other legal systems were referred to less than 10% of the time. Foreign laws, legal doctrine and supreme court decisions were cited. In rare cases an opinion was obtained from the Swiss Institute of Comparative Law. Foreign law was most frequently referenced in the areas of private international law and civil law (particularly cases involving the Swiss Code of Obligations, industrial property rights, copyright, unfair competition, property law and inheritance law – and to a lesser degree family law). In public law, French and German rulings and doctrine were initially most influential on general administrative law, while the influence of German legal doctrine was apparent in criminal law. Foreign law was referenced for a number of reasons, such as in historical interpretation, where foreign legal norms were taken by legislators as a model, or were at least known to them. As another example, the Federal Supreme Court referenced foreign law in advising Swiss legislators or legal scholars to address a problem, and on occasion when announcing a change in its rulings. Foreign doctrine was cited in particular where there were few relevant Swiss publications, particularly in the period right after enactment of a law.
Where foreign law was similar to Swiss law, it was not a question of adopting foreign law but rather of obtaining information useful for interpreting Swiss law. At times a foreign legal norm deviating from Swiss law was cited to highlight differences, affording a clearer understanding of Swiss legal norms. The Federal Supreme Court also advocated referencing foreign law to fill gaps in the law in a manner similar to how legislators drew upon foreign law. Lastly, foreign law was cited as an example of fair or practicable solutions having been found or as upholding a principle of human rights. Litigants naturally referenced foreign law too in support of their argumentation. The author’s view is that the influence of foreign law on the Federal Supreme Court’s case law is difficult to assess because of the difficulty of determining whether the foreign law cited played a decisive or lesser contributory role in a given decision or whether it only provided an additional argument in a decision that would have been made anyway. Citing foreign law did not generally in itself change the outcome of rulings, but rather only in conjunction with Swiss legal doctrine. Swiss authors thus paved the way for the reception of foreign legal concepts by criticizing existing case law and advocating the adoption of foreign solutions. The indirect influence of foreign law through the agency of Swiss legal scholars has been much stronger than its direct influence, whereby foreign influences on legal theory are not always pointed out.