Heinrich Koller, Die Amerikanisierung des Schweizerischen Rechts – Beispiele aus der Gesetzgebung, in Jens Drolshammer, „From the Horse’s Mouth“ – Rechtsberufe am Wind der Amerikanisierung: Betroffenheit und Umgang mit der amerikanischen Rechtskultur durch Leiter von Rechtsabteilungen schweizerischer multinationaler Unternehmungen, durch international tätige Rechtsanwälte, Verwaltungs- und Regulierungsbehörden sowie durch Gerichte in der Schweiz und Europa, 2007/2008, in Jens Drolshammer, A Timely Turn to the Lawyer?, Globalisierung und die Anglo-Amerikanisierung von Recht und Rechtsberufen – Essays. Zürich/Baden-Baden, 2009, p. 215 – 227
A_2.38_KOLLER_Amerikanische Rechtskultur
[Americanization of Swiss law – Examples from Legislation]
a) Background
The text is an oral transcript by Jens Drolshammer paraphrasing a lecture of Heinrich Koller with the title Die Amerikanisierung des Schweizerischen Rechts – Beispiele aus der Gesetzgebung, which Koller gave in an inter-university seminar between the Universities of Zurich and St. Gallen in 2007. The whole seminar has been summarized, put in perspective and reported on in detail in a text by Jens Drolshammer “From the Horse’s Mouth”, Rechtsberufe am Wind der Amerikanisierung (legal professions sailing at the wind of americanization), which has been published in Jens Drolshammer, A Timely Turn to the Lawyer? Globalisierung und die Anglo-Amerikanisierung von Recht und Rechtsberufen-Essays in 2009. The inter-university seminar dealt with the impacts of and the handling of American legal culture by general counsels of Swiss multinational enterprises, by internationally active attorneys, legal administrative and regulatory officials, and by courts in Switzerland and in the European Union. Leading representatives of these legal professions were asked to answer two questions: How are you affected by American law and legal culture in your working environment in Switzerland? How do you deal with it?
In the subgroup of administrative and regulatory officials, Koller was the lead and keynote speaker; he had just retired from the directorate of the Federal Office of Justice of Switzerland after 20 years of service. He summarizes from his many years of experiences salient features of the topic of Americanization of Swiss law and described particular examples of the legislative process.
The text of Jens Drolshammer, “From the Horse’s Mouth”- legal professions sailing in the wind of Americanization (pages 275 – 288), gives the most recent and the most complete overview of and insight by leading Swiss professionals in the four areas of legal professions. The legal experts being personally present and arguing their cases and views in front of the students and vis-à-vis with their colleagues had the advantage and the special didactic force of immediacy of oral communication in raising awareness and the interest on the subject of “trends to Americanization of Swiss law and Swiss legal culture”.
Heinrich Koller is an Professor Emeritus of Law at the University of Basel. In 1999 he was named the Director of the Federal Office of Justice of Swiss Government and was active in that function for almost twenty years. He was responsible for the preparation of the process in all areas of law and legislation, the legal consulting of the Federal Council and the Parliament; the supervising of the law making of the execution of the Federal Laws by the Cantons; and the representation of Switzerland in international organizations.
b) Summary
In the published oral transcript of Heinrich Koller’s presentation he drew the attention of the participating experts and students to the following areas.
In the introduction, he explains the Legal Office of Justice’s function as the specialized institution for legislation of the Swiss government; it prepares and handles legislative projects and processes, accompanies other departments and administrative agencies in their legislative projects as a consultant, and represents the Swiss government in international organizations such as Hague Conferences, UNCITRAL and Unidroit. The Federal Office of Justice is also the principle interface in international legal assistance, which brings immediate and direct contact to American law and its officials. Koller explains in the text the increasing influence of international political developments and events and the increasing influence of international law.
With regard to the Europeanization and the Americanization of Swiss law, Koller has given innumerable public presentations and has written scientific texts including in the part on globalization Globalisierung und Internationalisierung des Wirtschaftsrecht – Auswirkung auf die nationale Gesetzgebung (Globalization and internationalization of economic law – impact on the national legislative process).
Through his trend analysis he highlights that the adaptation of Swiss law to international developments in the past twenty years has come about not gradually but in clear shifts and steps. The development is not only marked by the accelerated change of quantity but also by the change of quality of the international legal developments to be dealt with. The text describes the role of international organizations, which beyond more familiar legal systems bring about even more complex influences on the Swiss legal system. The text explains the reasons behind the growing, sometimes hegemonic position of the United States and the sometimes difficult emotional conditions of the reactions on the Swiss side.
Koller explains the direct influences of American law by the exterritorial application of American law for instance by highlighting various cases. Under the heading of indirect influence he explains the Americanization of Swiss law as it appears in capital market and corporate law, the supervision of auditing firms, corporate governance, capital structures of corporations, procedural law in general, and legal procedures in civil and in criminal law, always highlighting the most direct encounters and sometimes confrontations between Swiss and American law.
The text really is a tour d’horizon from the horse’s mouth of the highest legal official on the process of legalization.