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.

1.4    Characteristics and peculiarities of the selection of the texts and of the authors in the writing on the process of Europeanization of Swiss law and legal Culture

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")

The purpose of the Anthology in this part is to show Switzerland's own history of dealing with Europe at large. Switzerland is a home and a host of European-Federative thinking during and after World War II leading to discussions and conferences on Swiss soil on the fate of Europe. Several public personalities from academia and publicists intensely dealt with the issue such as the lawyers Rudolf Bindschedler, Max Huber, Dietrich Schindler and Hans Wehberg, the historians like Edgar Bonjour, Adolf Gasser and Jean Rodolphe von Salis, the philosophers Jeanne Herrsch and Gonzague de Reynold and the publicists Hans Barth, Hans Bauer, Peter Dürrenmatt and Herbert Lüthy. Various non-Swiss personalities had chosen Switzerland as their domicile or had their work place here, people, such as Richard Nikolaus, Graf Coudenhove Kalergi, Johann Jakob Kindt-Kiefer, Willem Visser't Hooft and Don Salvador de Madariaga. Various organizations and national factions of the Europe Union and their relationship to Switzerland are well described in Erich Schneider's text.

Contrary to the developments of globalization at large - and to a large extent of Americanization - after World War II, the influence of the dynamic legal developments of the EU on Swiss law and legal culture is based upon a mutual design and a political intent. Coping with the challenges of the European Union presently is the first priority of Swiss foreign policy. It is the purpose of the Anthology not to lose sight of the fact that the myopic focussing on the relationship of Switzerland and the EU should not exclude the important facts of its historic relationship to Europe.

If the reader and user wishes  to follow this historic development and the broad activities before and after World War II and if he wants to note the specific form of Swiss government, its origins, and the ideas on using those forms as contributions to and even models of European integration, the reader and user may follow the chronological order in texts 2.1 to 2.4. The Hertenstein Programm (2.2) is a chart of the Union Européenne des Federalistes pronounced on Swiss soil in 1946. Denis de Rougement is a visionary author on Swiss federalism as possible model for unified Europe. Winston CHurchills famous speech of September 1946 pronounced on Swiss soil ends with the sentence "Let Europe crise" (2.3). The personal recount of the life of Henri Rieben recalls the life of another Swiss European, who among others cooperated with Jean Monnet (text 2.5) Alfred Kölz, the eminent historian of Swiss constitutionalism in text 2.6 makes precise and far-reaching proposals on the potentials of the use of specific aspects of the Swiss constitution for a future constitution of a unified Europe.

If the reader or user wants to follow the evolution of the influence of the developments and effects of EU law on Swiss law and Swiss legal culture after World War II, it is suggested that he follows the chronology of the texts as well. Political scientists in Switzerland, took the lead in describing stages and the history of Swiss European Policy. Dieter Freiburghaus text 2.14 is a recapitulation of 60 years of European policy, the text 2.10 is a specific description of the preparatory works of Switzerland for an accession in the sixties. René Schwoks text 2.13 squarely addresses the key issues of European policy of a full membership of Switzerland in the European Union. The historian Pierre Du Bois in 2.11 describes the European Economic Community in the sixties and aspects of Free Trade in Europe in the time from 1940 - 1960.

Regarding the legal, philosophical and jurisprudential bases of the evolution of the principle of Euro-compatibility the reader should turn to the texts of Daniel Thürer in 2.15, 2.16 and 2.17. Carl Baudenbacher in 2.18 adresses the effects of European Integration on Switzerland and Swiss law in Swiss economic law. Thomas Cottier and Rachel Liechti in text 2.20 situate the principle of Euro-compatibility in general comparative law from a broader perspective and summarize three case studies on issues of the application of the Cassis de Djion principle, turnover tax and antitrust law. Regarding the specific task in 1994 of the courts, after the first pertinent decision of the Swiss Federal Tribunal in the area of private law, see Thomas Probst (2.24). A general overview of the overall state of the present influence EU-law on Swiss law is the comprehensive text of Matthias Oesch in 2010 (2.19). The most recent developments in Switzerland's positioning itself vis-à-vis the European Union in legal matters concerning the European Unions demand for a solution of certain institutional issues as a precondition for further negotiating, see Carl Baudenbachers text 2.27. In the opinion letter of the Swiss Federal Tribunal (2.29) and the Opinion for the Swiss Government of Daniel Thürer (3.28) on the Swiss government's options on institutional forms of the domestic transformation and the application of bilateral treaties between Switzerland and the EU are described. The official position of the Swiss Government at various steps of the processes of Europeanization is contained in excerpts of official reports (2.12).

Switzerland is a country in the heart of the European continent and is fully part of historic, political, societal, economic and scientific developments of Europe at large. At various times, Swiss law and Swiss legal culture had radiations, influences and inspirational functions on the legal developments within Europe, even within the European Union. If the reader is interested in the perception of outside scholars of the possible contributions from a legal perspective, he may turn to text of Peter Häberle (2.7), an eminent scholar in comparative constitutional law and culture. If he is interested from a broader political science perspective, dealing with the intensive interaction between Swiss legal culture and Swiss law and European development, the reader may turn to text (2.5), of Heinrich Schneider. A Swiss perspective on a specific contribution to European developments in contract law is being reasoned in the text of Franz Werro (2.25). Thomas Cottiers text in english in 2.21 Swiss Model of European Integration at least gives a general description of Switzerlands position vis-à-vis the European Union from an eagle's perspective,  thereby greatly facilitating communication with lawyers and of course users and readers.

A change of perspective to other social sciences and the humanities opens the broader view on the process of Europeanization on Swiss legal culture and Swiss culture in general. Fritz Ernst (2.30) contributes a perspective of comparative literature by highlighting the radiation of Swiss authors and institutions into Europe at large. Karl Schmid (2.31) warns Switzerland not to fail to address the structural changes of the rising new world order. In a profound essay written in 1969. Historian Herbert Lühty describes the sources and origins of Switzerland as a nation and squarely addresses the potential of a collision of Swiss history with the advent of the European Union at a very early stage of the relationship of Switzerland and the European Union (2.32). Adolf Muschg in a public lecture series held in Germany with the title What is European? answers the question by pointing at and exploring Switzerlands dowry to Europe, he brings a perceptive answer to the question upon by identifying Switzerland, in particular by the poet Gottfried Keller. In a seminal essay on Switzerland's simultaneous looking forward and looking backward, Peter von Matt  (2.34) grasps the soul of this nation, creating difficult and dangerous trials and tribulations in view of the ever growing European integration in the European Union. Wolf Linder writes on the state of the republic from a political scientist's perspective (2.35) Finally, Bruno Frey offers ideas from a political economy perspective and a misguided development of European integration, if the nation state should stay the entity of reference for designing the next stages of European integration (2.36).

Since the phenomenon of Europeanization and globalization as well as Americanization are not identical, the reader should consult the texts in the parts on Americanization as well as on globalization, which contain elements of a discourse on various aspects of Swiss legal culture dealing with these overlapping and sometimes conflicting phenomena of the internationalization of Swiss law and legal culture. The influences of Europeanization and Americanization of Swiss law and legal culture are at the same time - depending on the issues and the area of law - parallel and at times curiously intertwined and indirect. Without giving relative weight to those key influences the editors advise the reader and the user to first consult the part of the Anthology on Europeanization and then turn to the part of Americanization - always keeping in mind that both processes are influences on Swiss law and legal culture after World War II of a major and simultaneous and co-equal importance.

Gordon Alexander Craig (November 13, 1913 - October 30, 2005) was a Scottish-American historian of German history and of diplomatic history.

Early life
Craig was born in Glasgow. In 1925 he emigrated with his family to Toronto, Canada, and then to Jersey City, New Jersey. Initially interested in studying the law, he switched to history after hearing the historian Walter “Buzzer” Hall lecture at Princeton University. In 1935, Craig visited and lived for several months in Germany, to research a thesis he was writing on the downfall of the Weimar Republic. This trip marked the beginning of lifelong interest with all things German. Craig did not enjoy the atmosphere of Nazi Germany, and throughout his life, he sought to find the answer to the question of how a people who, in his opinion, had made a disproportionately large contribution to Western civilization, allowed themselves to become entangled in what Craig saw as the corrupting embrace of Nazism.
Of Adolf Hitler, Craig once wrote,
"Adolf Hitler was sui generis, a force without a real historical past… dedicated to the acquisition of power for his own gratification and to the destruction of a people whose existence was an offense to him and whose annihilation would be his crowning triumph. Both the grandiose barbarism of his political vision and the moral emptiness of his character make it impossible to compare him in any meaningful way with any other German leader. He stands alone."
Education and work

Craig graduated in history from Princeton University, was a Rhodes Scholar at Balliol College, Oxford, from 1936 to 1938, and served in the U.S. Marine Corps as a captain and in the Office of Strategic Services during World War II. In 1941, he co-edited with Edward Mead Earle and Felix Gilbert, on behalf of the American War Department, the book Makers of Modern Strategy: Military Thought From Machiavelli to Hitler, which was intended to serve as a guide to strategic thinking for military leaders during the war.

After 1945, Craig worked as a consultant to the U.S. Arms Control and Disarmament Agency, the State Department, the U.S. Air Force Academy and the Historical Division of the U.S. Marine Corps. He was a professor at Princeton University from 1950-61 and at Stanford University from 1961-79. In 1956-1957, he taught at the Center for Advanced Study in the Behavioral Sciences. In addition, he often held visiting professorships at the Free University of Berlin; in 1967, Craig was the only professor there to sign a petition asking for an investigation into charges of police brutality towards protesting students. Craig was chair of the history department at Stanford in 1972-1975 and 1978-1979. Between 1975-1985, he served as the vice-president of the Comité International des Sciences Historiques. In 1979, he became an emeritus professor and was awarded the title J. E. Wallace Sterling Professor of Humanities. (...)

Craig was formerly President of the American Historical Association. In 1953, together with his friend Felix Gilbert, he edited a prosopography of inter-war diplomats entitled The Diplomats, an important source for diplomatic history in the interwar period. He followed this book with studies on the Prussian Army, the Battle of Königgrätz and many aspects of European and German history. Craig was particularly noted for his contribution to the Oxford History of Modern Europe series entitled Germany, 1866-1945 and its companion volume, The Germans. The latter was a wide-ranging cultural history that explored aspects of being German, such as attitudes towards German-Jewish relations, money, students, women, and democracy, amongst others. The book was a best-seller in both the United States and Germany and Craig was awarded the Pour le Mérite medal for this book. Increasingly interested in cultural history in his later years, Craig subsequently wrote studies of several German writers, most notably Theodor Fontane. During this time, he also emerged as a celebrity in the German-speaking world, frequently appearing as a guest on German television talk shows. By his later years, Craig was widely regarded as the doyen of American historians of Germany, and his opinions carried much weight.
Craig died in 2005, and was survived by his widow Phyllis, four children and eight grandchildren. (...)

Personal viewpoint

Craig saw modern German history as a struggle between the positive, as exemplified by the values of humanist intellectuals, and negative forces in German life, as exemplified by Nazism. In a broader sense, he viewed this conflict as between enlightened spirit and authoritarian power. He was highly critical of those who saw Nazism as the culmination of German national character, while at the same time criticizing those who argued that Nazi Germany was just a Betriebsunfall (industrial accident) of history. Craig felt that the particular way Otto von Bismarck created the German Empire in 1871 was a tragedy, as it entrenched the forces of authoritarianism in German life. Similarly, Craig viewed the autonomous role of the German Army as a "State-within-the-State" as highly adverse to the development of democracy.

Craig saw history not as a social science, but rather as a "human discipline". He censured those historians who saw their work as social science and frequently called for historians to return to the methods of former times by seeking to "interconnect" history and literature. Craig was noted for his sparse, highly elegant literary style, together with a tendency to keep an ironic distance from his subjects. He was very fond of German literature, and praised the novels of Theodor Fontane as the best portrayal of 19th century Germany, which he considered superior to many works produced by historians. Craig's last project, incomplete at the time of his death, concerned a survey of novels set in Berlin (which was Craig's favorite city) in the 20th century.

For notes, bibliography and external links see Wikipedia.
(partly shortened by editor)

Source: Wikipedia, the free Encyclopedia

Albert Gallatin was born in Geneva on the 29th of January 1761 and died in Astoria, USA, on the 12th of August 1849. He was the US Secretary of the Treasury under Presidents Thomas Jefferson and James Madison, as well as a diplomat, banker, and ethnologist. We cite the lively portrait in Benedict von Tscharner in Inter Gentes, Statesmen, Diplomats, Political Thinkers, p. 125 ff.

“Few “Swiss abroad” deserve the title of statesman, and Albert Gallatin’s career was without a doubt one of the richest and most significant within this category. Yet during the course of the early years of his life spent in Geneva, nothing pointed to the role that this well-bred young man would play later on in the affairs of America. In fact, when Albert Gallatin, who was orphaned very young, left his native town without informing his family in 1780 at the age of nineteen, what he really dreamed of was to live the life of a free man, of a pioneer in the then still half-wild back country of the New World.

That is effectively what he did: After brief sojourns in Maine, then in Cambridge, near Boston, where he taught French at Harvard College, and in Richmond, Virginia, he left the East Coast with two friends to build a pioneers' cabin called Friendship Hill on the banks of the Monongahela River, in the far west of Pennsylvania. He also worked there as a surveyor. In the meetings between the settlers of this region, Gallatin took the side of the Anti-Federalists led by Thomas Jefferson, that is to say those among the citizens who were critical of the centralising tendencies that they saw in the all-new federal authorities, and worried about the powers and rights of the states forming the Union. In these debates, Gallatin quickly got himself noticed as a talented orator (despite the faint Geneva accent that he never quite shook off…) and especially because of his talent as a writer.

Gallatin’s parliamentary career was marked by a rapid rise to the top. First he was a Deputy to the State Parliament of Pennsylvania, then a Senator at federal level; his nomination was annulled due to his overly recent acquisition of American citizenship. Finally, he was elected a member of the House of Representatives. Very early, Gallatin specialised in the area of public finances and the tax system. In his role as spokesman for the opposition, his designated “victim” at the heart of George Washington’s Administration was the brilliant Secretary to the Treasury Alexander Hamilton. The latter had been aide-decamp, but also a political and military advisor, to George Washington during the War of Independence and was also his spiritual son of sorts. Last but not least he was the principal author of the famous Federalist Papers.  When, in 1800, Jefferson and his party won the election, it was naturally towards Gallatin that the new President turned and he entrusted him with the finance portfolio. Gallatin therefore found himself confronted with the challenge of putting into practice the policy of reducing the national debt and imbuing government spending with more discipline, both of which were policies he had called for while still a parliamentarian. This considerable debt had built up during the War of Independence and the first years of the nascent United States. Gallatin set to work with redoubtable vigour and obstinacy. It was during Jefferson’s presidency in 1803 that the United States acquired the vast and virtually virgin territories of Louisiana, west of the Mississippi. The occasion offered by Napoleon Bonaparte was too good to miss. France had taken back Louisiana from the Spanish only a short time before, but Napoleon now had different priorities. Gallatin had to organise the financing of the purchase: some 15 million dollars, a modest sum even at the time, but evidently not one that had been provided for in the current budget!

Basically, it was the unfortunate War of 1812 against Great Britain and the armament spending it engendered that rendered Gallatin’s task near-impossible. We should also not forget that it was during the course of this war that the brand new capital of Washington was occupied for several days by British troops! Being as he was viscerally opposed to this war and not getting along too well with the new President James Madison, the Secretary to the Treasury grasped at the chance offered to him to leave the government in 1813 and go off to negotiate a treaty of peace with Great Britain in the name of the United States. Gallatin was not the head of the American delegation – this task fell upon John Quincy Adams, the son of John Adams and himself a future President. Yet Gallatin played a crucial role in the elaboration of the American position and, once again, in the authorship of relevant texts.

The treaty was finally signed in Ghent at the end of 1814, before the last battle between the Americans and the British at New Orleans was fought, a battle where Andrew Jackson, another future President, garnered a reputation as a brilliant commander of his motley troops. What the Peace of Ghent essentially achieved was to confirm the territorial status quo; it marked the end of the long conflict between the British crown and its ancient rebel colonies on the North American continent. Nobody would dare seriously question the sovereignty of this young nation again, even if its territory did go through a range of further extensions and adjustments. It also has to be said that in 1814, the year of the famous Congress of Vienna, the British priority was to consolidate the victory of the Allied Powers against the Emperor Napoleon, both in military and diplomatic terms. For the Americans, it was a sort of window of opportunity.

This mission to Europe offered Gallatin, accompanied by his son James, the chance to spend a few weeks in Geneva, in the winter of 1815, the hometown that he had not seen since his departure 35 years previously. A French prefecture between 1798 and 1813, Geneva had only just become an independent Republic again, but one that was getting ready to join the Swiss Confederation as a canton, a Confederation to which the city had been linked by an alliance since the 16th century. In Geneva, Gallatin met with all the elite of the time, from Madame Stael and Jean de Sismondi to the brothers Charles and Marc-Auguste Pictet.

Having acquired a taste for diplomacy, Gallatin accepted the post of minister for the United States in France – today we would say he was the ambassador – and later in Great Britain. Chief among the dossiers he was in charge of in London was the pursuit of negotiations related to the borders between the United States and Canada, a territory that had remained a British colony.

From 1827 onwards, Gallatin spent his retirement mainly in New York City, the hometown of his second wife Hannah, nee Nicholson; this allowed him to render multiple services to his country: as the writer of numerous essays on the finances and monetary policy of the United States, as president of a bank created by his friend John Jacob Astor, as the founder of the University of New York whose role was to educate the new elite that the country needed and, most especially, as the writer of brilliant erudite studies on the language and mores of the American Indians. Certain observers wanted to see this startling newfound infatuation with ethnology as a distant consequence of the doubly classical and scientific education that the young Gallatin had enjoyed at the Academy of Geneva before his departure for America. However it is also true that, very soon after he had arrived in America, Gallatin had met the first Indians in Maine, as well as meeting others in Pennsylvania and in the territory of Ohio, and that once he had become Secretary of the Treasury, his administration found itself heavily involved in the management of so-called virgin lands and the politics of federal authorities vis-à-vis indigenous peoples. Gallatin therefore often had the occasion of receiving delegations of Indian chiefs in Washington and to discover how they lived.

Gallatin's particularly long life – some even talk of “the five lives of Albert Gallatin” – therefore allowed him to demonstrate his numerous talents and acquire notoriety in several spheres. Even if he was not, strictly speaking, one of the Founding Fathers of the United States, nor one of the authors of the American Constitution (as stated on the old plaque that the people of Geneva placed on the house where he was born and which was replaced in 2011), his contribution to the consolidation of the young nation’s finances at a time of strong growth both in territorial and economic terms, his talent as a negotiator that brought an end to the last great conflict with the old mother country and, finally, his numerous intellectual and other activities in public life made of him, without a doubt, a very great American indeed.” (cit. Benedict von Tscharner, Inter Gentes, Statesmen, Diplomats, Political Thinkers, Geneva 2012, p. 125-129).

Bibliography: Raymond Walters Jr., Albert Gallatin: Jeffersonian Financier and Diplomat, Macmillan, New York, 1957 / 1969, Benedict von Tscharner, Albert Gallatin (1761-1849). Geneva's American Statesman, Editions de Penthes, Pregny-Genève / Infolio, Gollion, 2008 (also available in German and in French). NichoIas Dungan, Gallatin. America’s Swiss Founding Father, New York University Press, New York, 2010.

Johann August Sutter (February 15, 1803 - June 18, 1880) was a Swiss pioneer of California known for his association with the California Gold Rush by the discovery of gold by James W. Marshall and the mill making team at Sutter’s Mill, and for establishing Sutter’s Fort in the area that would eventually become Sacramento, the state’s capital. Although famous throughout California for his association with the Gold Rush, Sutter saw his business ventures fail while those of his elder son, John Augustus Sutter, Jr., were more successful.For a list of works and bibliography see Wikipedia.

Biography
Early Years
John Augustus Sutter was born Johann August Suter on February 15, 1803 in Kandern, Baden, Germany, when his father came from the nearby town of Rünenberg in Switzerland.
Johann went to school in Neuchâtel, Switzerland and later joined the Swiss army, eventually becoming captain of the artillery. At age 23, Johann married Annette Dübold, the daughter of a rich widow. He operated a store but he was more interested in spending money than making it. Because of family and mounting debts, Johann faced charges that would have him placed in jail. So he decided to dodge trial and ventured to America; he styled his name to Captain John Augustus Sutter.

In May 1834, he left his wife and five children behind in Burgdorf, Switzerland, and with a French passport he boarded the ship Sully which travelled from Le Havre, France, to New York City where it arrived on July 14, 1834.

The New World
In North America, John Augustus Sutter (as he would call himself for the rest of his life) undertook extensive travels. Before he went to the U.S., he had learned Spanish and English in addition to Swiss French. Together with 35 Germans he moved from the St. Louis area to Santa Fe, New Mexico Territory, then moved to the town of Westport, Oregon Territory. On April 1, 1838, he joined a group of missionaries, led by the fur trapper Andrew Dripps, and went along the Oregon Trail to Fort Vancouver in Oregon Territory, which they reached in October. With a few companions, he went on board the British bark Columbia which left Fort Vancouver on 11 November and laid at anchor in Honolulu on 9 December. Sutter wanted to settle in California, but the only vessel waiting at anchor in the harbor was the brig Clementine - Sutter managed to be signed on as unpaid supercargo of this brig freighted with a cargo of provisions and general merchandise for the Russian colony of New Archangel, now known as Sitka, Alaska. The Clementine hoisted anchor on April 20, 1839, with Sutter together with 10 Kanakas, two of them women, a few companions, and a Hawaiian bulldog. From the Russian colony at Sitka, where he stayed one month, Sutter traveled by ship to Yerba Buena, now San Francisco, at that time a tiny poor mission station. The Clementine arrived in Yerba Buena on July 1, 1839.

Relationship with Native Americans
Sutter had to make peace with the Indians. Over time, the Indians and Sutter became friends, and the Indians built a house for Sutter. Sutter called the place New Helvetia or "New Switzerland." Sutter's Fort had a central building made of adobe bricks, surrounded by a high wall with protection on opposite corners to guard against attack. It also had workshops and stores that produced all goods necessary for the New Helvetia settlement.

Sutter employed Native Americans of the Miwok and Maidu tribes, Kanakas, and Europeans at his compound, which he called Sutter’s Fort; he envisioned creating an agricultural utopia, and for a time the settlement was in fact quite large and prosperous. It was for a period the destination for most California-bound immigrants, including the ill-fated Donner Party, for whose rescue Sutter contributed supplies.

Beginning of Sutter's Fort
(Main article: Sutter Fort, Wikipedia)
At the time of Sutter’s arrival in California, the territory had a population of only 1,000 Europeans, in contrast with 30,000 Native Americans. It was at that point a part of Mexico and the governor, Juan Bautista Alvarado, granted him permission to settle; in order to qualify for a land grant, Sutter became a Mexican citizen on August 29, 1840 after a year in the provincial settlement. He identified himself as ‘Captain Sutter of the Swiss Guard’. The following year, on 18 June, he received title to 48,827 acres (197.60 km2). Sutter named his settlement New Helvetia, or “New Switzerland,” after his homeland, “Helvetia” being the Latin name for Switzerland.

John Sutter began to establish Sutter's Fort in August 1839, and the fort’s construction was completed in 1841. A Francophile, Sutter threatened to raise the French flag over California and place New Helvetia under French protection, but in 1847 the Mexican land was occupied by the United States. Sutter at first supported the establishment of an independent California Republic but when United States troops briefly seized control of his fort, Sutter did not resist because he was outnumbered.

Beginning of the Gold Rush
(Main article: California Gold Rush)
In 1848, gold was discovered in the area. Initially, one of Sutter's most trusted employees, James W. Marshall, found gold at Sutter's Mill. It started when Marshall and Sutter began the construction of his sawmill in Coloma, along the American River. One morning, as Marshall inspected the tailrace for silt and debris, he noticed some gold nuggets and brought them to Sutter’s attention. Together, they read an encyclopedia entry on gold and performed primitive tests to confirm whether it was precious metal. Sutter concluded that it was, in fact, gold, but he was very anxious that the discovery not disrupt his plans for construction and farming. At the same time, he set about gaining legitimate title to as much land near the discovery as possible.

Sutter’s attempt at keeping the gold discovery quiet failed when merchant and newspaper publisher Samuel Brannan returned from Sutter’s Mill to San Francisco with gold he had acquired there and began publicizing the find. Large crowds of people overran the land and destroyed nearly everything Sutter had worked for. To avoid losing everything, Sutter deeded his remaining land to his son, John Augustus Sutter, Jr. The younger Sutter, who had come from Switzerland and joined his father in September 1848, saw the commercial possibilities of the land and promptly started plans for building a new town he named Sacramento, after the Sacramento River. The elder Sutter deeply resented this; he had wanted the town named Sutterville (for them) and for it to be built near New Helvetia.

Sutter gave up New Helvetia to pay the last of his debts. He rejoined his family and lived in Hock Farm (in California along the Feather River).

Sutter’s El Sobrante (Spanish for leftover) land grant was challenged by the Squatter’s Association, and in 1858 the U.S. Supreme Court denied its validity.

John Sutter got a letter of introduction to the Congress of the United States from the governor of California. He moved to Washington D.C. at the end of 1865 after Hock Farm was destroyed by fire (June 1865).

Sutter sought reimbursement of his losses associated with the Gold Rush. He received a pension of US$250 a month as a reimbursement of taxes paid on the Sobrante grant at the time Sutter considered it his own. He and wife Nanette moved to Lititz, Pennsylvania in 1871. The proximity to Washington, D.C. along with the reputed healing qualities of Lititz Springs appealed to the aging Sutter. He also wanted three of his grandchildren (he had grandchildren in Acapulco, Mexico, as well) to have the benefits of the fine private Moravian Schools.

Sutter built his home across from the Lititz Springs Hotel, the present-day General Sutter Inn. For more than fifteen years, John Sutter petitioned Congress for restitution but little was done. On June 16, 1880, Congress adjourned, once again, without action on a bill which would have given Sutter US$50,000. Two days later, on June 18, 1880, John Augustus Sutter died in the Made’s Hotel in Washington D.C.. He was returned to Lititz and is buried in God’s Acre, the Moravian Graveyard. Mrs. Sutter died the following January and is buried with him.

Legacy
In addition to the links found below, Sutter Street in downtown San Francisco, California is named for John A. Sutter. Sutter’s Landing, Sutterville Road, Sutter Middle School, Sutter’s Mill School, and Sutterville Elementary School in Sacramento are all named after him. The Sutterville Bend of the Sacramento River is named for Sutter, as is Sutter Health, a non-profit health care system in Northern California. The City of Sutter Creek, California is also named after him. In Acapulco, Mexico, the property that used to belong to John Augustus Sutter, Jr. became the Hotel Sutter, which is still in service.

The Johann Agust Sutter House in Lititz, Pennsylvania was listed on the National Register of Historic Places in 1982.

The ‘Sutter’s Gold’ rose, an orange blend hybrid tea rose bred by Herbert C. Swim, was named after him.

In Literature (scholarly studies, fiction, films, music) see Wikipedia

Reference (see Wikipedia)

Source: wikipedia.org/wiki/John_Sutter, Wikipedia, the free encyclopedia, partially shortened by editor

Please review one of these allocated briefing papers based on the first letter of the school where you did your undergraduate studies:

Stacy Anderson & Blake Roberts, "Capacity To Commit in the Absence of Legislation: Takings, Winstar, FTCA, & the Court of Claims"(May 2005) (Briefing Paper No. 12) (http://www.law.harvard.edu/faculty/hjackson/CapacitytoCommitt_12.pdf)

Bob Allen & Sarah Miller, “The Constitutionality of Executive Spending Powers” (May 10, 2008) (Briefing Paper No. 38) (http://www.law.harvard.edu/faculty/hjackson/ConstitutionalityOfExecutive_38.pdf)

Brian Callanan & David Weiler, “War Budgeting Strategies: Case Studies of The Gulf War and The Iraq War” (May 2008) (Briefing Paper No. 39) (http://www.law.harvard.edu/faculty/hjackson/WarBudgeting_39.pdf)

TITLE 8

Corporations

CHAPTER 1. GENERAL CORPORATION LAW

Subchapter VII. Meetings, Elections, Voting and Notice

§ 213. Fixing date for determination of stockholders of record.

(a) In order that the corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If the board of directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the board of directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance with the foregoing provisions of this subsection (a) at the adjourned meeting.

(b) In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which date shall not be more than 10 days after the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by this chapter, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in this State, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of directors and prior action by the board of directors is required by this chapter, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action.

(c) In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.

8 Del. C. 1953, § 213; 56 Del. Laws, c. 50; 57 Del. Laws, c. 148, § 13; 66 Del. Laws, c. 136, §§ 7-9; 77 Del. Laws, c. 14, § 5.;

Ron Deibert and Masashi Crete-Nishihata

The commercial market for Internet filtering and surveillance technologies is rapidly growing. This market consists of a range of products capable of content filtering and both passive and targeted surveillance, which, depending on the end use, can serve legitimate purposes or result in human rights violations. For example, products used for managing network traffic and restricting access to web content in private enterprise and institutional settings can also be used by governments to censor content on the national level or engage in passive surveillance.¹ Other technologies such as “lawful intercept” products are designed to provide passive and targeted surveillance capabilities, and are typically marketed directly to government agencies.

There are numerous examples of such technologies in the current marketplace. The US-based company Blue Coat provides network management appliances including PacketShaper and ProxySG, which are capable of network filtering and surveillance.² The Canada-based company Netsweeper develops products specifically designed to filter web content. The UK-based company Gamma International sells FinFisher, “governmental IT intrusion” software that can exfiltrate data, intercept email and instant messaging communications, and spy on users through webcams and microphones.³

These technologies have come under increased scrutiny over their use by regimes with dubious human rights records. Following the 2011 the Egyptian revolution, protestors retrieved a document from state security offices outlining an offer to the Egyptian State Security Investigations Service for the Finfisher surveillance software package. Similarly, in 2011 the Wall Street Journal reported that the French company Amesys sold deep packet inspection systems to the Gaddafi regime, and that the Gaddafi regime purchased technology from China’s ZTE and South Africa’s VASTech capable of tapping international phone calls. Bloomberg reported that Sweden’s Ericsson, the United Kingdom’s Creativity Software, and Ireland’s AdaptiveMobile all provided Iranian law enforcement and state security agencies with surveillance technology. Privacy International believes that at least thirty British companies and at least fifty US companies sold surveillance technologies to countries that have committed human rights violations.⁴

From the mid-2000s onwards, the Citizen Lab has documented numerous cases of products developed in North America and Europe being used for censorship and surveillance by governments with poor human rights records, and in some cases under international sanctions.⁵

In more recent work, the Citizen Lab has revealed evidence of Netsweeper’s filtering products in Pakistan, Qatar, the UAE, and Yemen.⁶ The Citizen Lab has also found Blue Coat devices on public networks in 83 countries, including those with questionable human rights records, such as Burma, Cote d'Ivoire, and United Arab Emirates; and countries subject to sanctions, including Iran, Syria, and Sudan.⁷ These findings raise questions around the sale of “dual-use” information and communication technologies to national jurisdictions where the implementation of such technology has not been publicly debated or shaped by the rule of law. These issues go beyond any one company and underscore the imperatives of addressing the global public policy implications of internationally marketed communications infrastructure and services.

Products used by law enforcement and government agencies for “lawful interception” become problematic in countries with weak rule of law and where dissident activities can be viewed as criminal. In 2012, the Citizen Lab found evidence of FinFisher being used to target Bahraini activists. Since that initial finding, we further revealed evidence of FinFisher campaigns with political content relevant to Ethiopia and Malaysia. In our most recent research, we detected FinFisher command and control servers (C2s) in 36 countries. The presence of a Finfisher C2 in a country does not necessarily imply that law enforcement or government agencies of that country are clients and operators of FinFisher. However, the global proliferation of Finfisher raises questions regarding how the product is being used, particularly in countries with problematic human rights records.

Lawmakers at national and regional levels and civil society organizations have called for greater regulation of sensitive technologies through industry self-regulation or legislative measures, such as export controls and sanctions. In December 2012, the European Union passed a resolution on a “Digital Freedom Strategy” that inter alia called for “a ban on exports of repressive technologies and services to authoritarian regimes” and “the establishment of a list, to be regularly updated, of countries which are violating freedom of expression in the context of human rights and to which the export of the above ‘single-use’ items [technologies that inherently threaten human rights, such as jamming, surveillance, monitoring and interception technology] should be banned.”⁸

Civil society groups, policymakers, and others have pressured the private sector to better control the end uses of their products, leading to new frameworks for corporate social responsibility. To this end, civil society has developed a number of frameworks to encourage corporate social responsibility. For example, the Electronic Frontier Foundation’s “Know Your Customer” framework encourages companies to investigate customers before and during transactions.⁹

Multi-stakeholder efforts have also emerged, such as the Global Network Initiative, a group of companies, civil society organizations, academics, and investors that provides a framework based on commitments to freedom of expression and privacy principles.¹⁰ Some companies have developed their own corporate social responsibility policies. For example, Websense has a policy of not selling to “governments or Internet service providers that are engaged in any sort of government-imposed censorship.”¹¹

Ongoing research and monitoring of these technologies for censorship and surveillance is vital for informing policymakers and vendors who many not be aware that their products are being used to violate human rights. In 2009, after the OpenNet Initiative informed Websense that its products were being used to filter political content in Yemen (and thus violating the company’s anti-censorship policy), Websense withdrew software update support. In 2011, the company joined the Global Network Initiative.¹² Similarly, media attention and pressure from government and civil society organizations in the wake of findings by Citizen Lab and others that Blue Coat devices were active in Syria¹³ prompted the company to withdraw support, updates, and other services to active Blue Coat devices in the country.¹⁴

Addressing this growing market and the potential of human rights violations stemming from the use of Internet filtering and surveillance products requires dialogue between the private sector, government, and civil society. Bringing together perspectives from these stakeholders is crucial for moving towards effective options for intelligently controlling these technologies and ensuring companies can fulfill their moral and ethical obligations while also protecting them from liabilities that could arise from knowledge gaps and / or partner malfeasance in their global operations.

NOTES

1. For research on Internet filtering products being used in institutional settings, see: Peacefire: Open Access for the Net Generation, http://peacefire.org/info/about-peacefire.shtml; “Seth Finkelstein's Anticensorware Investigations - Censorware Exposed,” http://sethf.com/anticensorware/; and Benjamin Edelman, “Expert Report of Benjamin Edelman,” Multnomah County Public Library et al., vs. United States of America, et al., http://cyber.law.harvard.edu/archived_content/people/edelman/pubs/aclu-101501.pdf.
2. “Blue Coat PacketShaper Application List,” Blue Coat, http://www.bluecoat.com/sites/default/files/documents/files/PacketShaper_Application_List.c.pdf.
3. Gamma International, “Remote Monitoring & Infection Solutions,” FinFisher IT Intrusion, http://wikileaks.org/spyfiles/files/0/289_GAMMA-201110-FinSpy.pdf.
4. See Gamma International, “Remote Monitoring & Infection Solutions,” FinFisher IT Intrusion, http://wikileaks.org/spyfiles/files/0/289_GAMMA-201110-FinSpy.pdf; Margaret Coker and Paul Sonne, “Firms Aided Libyan Spies,” Wall Street Journal, August 30, 2011, http://online.wsj.com/article/SB10001424053111904199404576538721260166388.html; Ben Elgin, Vernon Silver, and Alan Katz, “Iranian Police Seizing Dissidents Get Aid Of Western Companies,” Bloomberg, October 30, 2011, http://www.bloomberg.com/news/2011-10-31/iranian-police-seizing-dissidents-get-aid-of-western-companies.html; and Jamie Doward and Rebecca Lewis, “UK 'Exporting Surveillance Technology to Repressive Nations',” The Guardian, April 7, 2012, http://www.theguardian.com/world/2012/apr/07/surveillance-technology-repressive-regimes.
5. See: “Tunisia,” OpenNet Initiative, 2005, http://opennet.net/studies/tunisia; “Saudi Arabia,” OpenNet Initiative, 2009, http://opennet.net/research/profiles/saudi-arabia; “United Arab Emirates,” OpenNet Initiative, 2009, http://opennet.net/research/profiles/united-arab-emirates; “Yemen,” OpenNet Initiative, 2009, http://opennet.net/research/profiles/yemen; and Jakub Dalek, Bennett Haselton, Helmi Noman, Adam Senft, Masashi Crete-Nishihata, Phillipa Gill, and Ronald Deibert, “A Method for Identifying and Confirming the Use of URL Filtering Products for Censorship,” IMC’13, October 23-25, 2013, Barcelona, Spain.
6. Helmi Noman, “When a Canadian Company Decides what Citizens in the Middle East Access Online,” OpenNet Initiative, May 16, 2011, https://opennet.net/blog/2011/05/when-a-canadian-company-decides-what-citizens-middle-east-can-access-online; and Citizen Lab, “O Pakistan, We Stand on Guard for Thee: An Analysis of Canada-based Netsweeper’s Role in Pakistan’s Censorship Regime,” June 2013, https://citizenlab.org/2013/06/o-pakistan/.
7. “Behind Blue Coat: Investigations of Commercial Filtering in Syria and Burma,” Citizen Lab, November 9, 2011, https://citizenlab.org/2011/11/behind-blue-coat; Morgan Marquis-Boire et al., “Planet Blue Coat: Mapping Global Censorship and Surveillance Tools,” Citizen Lab, January 15, 2013, https://citizenlab.org/2013/01/planet-blue-coat-mapping-global-censorship-and-surveillance-tools; and Morgan Marquis-Boire et al., “Some Devices Wander by Mistake: Planet Blue Coat Redux,” July 9, 2013, https://citizenlab.org/2013/07/planet-blue-coat-redux/.
8. European Parliament, Report on a Digital Freedom Strategy in EU Foreign Policy (2012/2094(INI)), November 15, 2012, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2012-0374+0+DOC+PDF+V0//EN&language=EN. The US State Department also issued a guide on the export of “sensitive technology” to Iran and Syria pursuant to applicable sanctions, and the British government invoked an existing international export control regime—the Wassenaar Arrangement—to assert that FinFisher was subject to export controls. See: “State Department Sanctions Information and Guidance,” US Department of State, November 8, 2012, http://www.state.gov/e/eb/tfs/spi/iran/fs/200316.htm; and “British government admits it has already started controlling exports of Gamma International's FinSpy,” Privacy International, September 10, 2012, https://www.privacyinternational.org/press-releases/british-government-admits-it-has-already-started-controlling-exports-of-gamma .
9. Cindy Cohn and Jillian C. York, “’Know Your Customer’ Standards for Sales of Surveillance Equipment,” Electronic Frontier Foundation, October 24, 2011, https://www.eff.org/deeplinks/2011/10/it’s-time-know-your-customer-standards-sales-surveillance-equipment.
10. Global Network Initiative, http://www.globalnetworkinitiative.org.
11. “Anti-Censorship Policy,” Websense, http://www.websense.com/content/censorship-policy.aspx.
12. Jillian C. York, “Websense Bars Yemen's Government from Further Software Updates,” OpenNet Initiative, 2009, https://opennet.net/blog/2009/08/websensebars-yemens-government-further-softwareupdates.
13. “Web Censorship Technologies in Syria Revealed,” Reflets.info, August 12, 2011, http://reflets.info/opsyria-web-censorship-technologies-in-syria-revealed-en; “Blue Coat’s Role in Syria Censorship and Nationwide Monitoring System,” Reflets.info, September 1, 2011, http://reflets.info/bluecoats-role-in-syrian-censorship-and-nationwide-monitoring-system; “#OpSyria: Syrian Censorship Logs (Season 3),” Reflets.info, October 4, 2011, http://reflets.info/opsyria-syrian-censoship-log; “Behind Blue Coat: Investigations of Commercial Filtering in Syria and Burma,” November 9, 2011, https://citizenlab.org/2011/11/behind-blue-coat/.
14. “Update on Blue Coat Devices in Syria,” Blue Coat, December 15, 2011, http://www.bluecoat.com/company/news/update-blue-coat-devices-syria; and Citizen Lab, “UPDATE: Are Blue Coat Devices in Syria “Phoning Home?,” Citizen Lab, January 14, 2013, https://citizenlab.org/2011/11/behind-blue-coat/#update.

TITLE 8

Corporations

CHAPTER 1. GENERAL CORPORATION LAW

Subchapter VII. Meetings, Elections, Voting and Notice

§ 213. Fixing date for determination of stockholders of record.

(a) In order that the corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If the board of directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the board of directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the board of directors, the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance with the foregoing provisions of this subsection (a) at the adjourned meeting.

(b) In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which date shall not be more than 10 days after the date upon which the resolution fixing the record date is adopted by the board of directors. If no record date has been fixed by the board of directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by this chapter, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in this State, its principal place of business or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of directors and prior action by the board of directors is required by this chapter, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the board of directors adopts the resolution taking such prior action.

(c) In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.

8 Del. C. 1953, § 213; 56 Del. Laws, c. 50; 57 Del. Laws, c. 148, § 13; 66 Del. Laws, c. 136, §§ 7-9; 77 Del. Laws, c. 14, § 5.;

Ron Deibert and Masashi Crete-Nishihata

The commercial market for Internet filtering and surveillance technologies is rapidly growing. This market consists of a range of products capable of content filtering and both passive and targeted surveillance, which, depending on the end use, can serve legitimate purposes or result in human rights violations. For example, products used for managing network traffic and restricting access to web content in private enterprise and institutional settings can also be used by governments to censor content on the national level or engage in passive surveillance.¹ Other technologies such as “lawful intercept” products are designed to provide passive and targeted surveillance capabilities, and are typically marketed directly to government agencies.

There are numerous examples of such technologies in the current marketplace. The US-based company Blue Coat provides network management appliances including PacketShaper and ProxySG, which are capable of network filtering and surveillance.² The Canada-based company Netsweeper develops products specifically designed to filter web content. The UK-based company Gamma International sells FinFisher, “governmental IT intrusion” software that can exfiltrate data, intercept email and instant messaging communications, and spy on users through webcams and microphones.³

These technologies have come under increased scrutiny over their use by regimes with dubious human rights records. Following the 2011 the Egyptian revolution, protestors retrieved a document from state security offices outlining an offer to the Egyptian State Security Investigations Service for the Finfisher surveillance software package. Similarly, in 2011 the Wall Street Journal reported that the French company Amesys sold deep packet inspection systems to the Gaddafi regime, and that the Gaddafi regime purchased technology from China’s ZTE and South Africa’s VASTech capable of tapping international phone calls. Bloomberg reported that Sweden’s Ericsson, the United Kingdom’s Creativity Software, and Ireland’s AdaptiveMobile all provided Iranian law enforcement and state security agencies with surveillance technology. Privacy International believes that at least thirty British companies and at least fifty US companies sold surveillance technologies to countries that have committed human rights violations.⁴

From the mid-2000s onwards, the Citizen Lab has documented numerous cases of products developed in North America and Europe being used for censorship and surveillance by governments with poor human rights records, and in some cases under international sanctions.⁵

In more recent work, the Citizen Lab has revealed evidence of Netsweeper’s filtering products in Pakistan, Qatar, the UAE, and Yemen.⁶ The Citizen Lab has also found Blue Coat devices on public networks in 83 countries, including those with questionable human rights records, such as Burma, Cote d'Ivoire, and United Arab Emirates; and countries subject to sanctions, including Iran, Syria, and Sudan.⁷ These findings raise questions around the sale of “dual-use” information and communication technologies to national jurisdictions where the implementation of such technology has not been publicly debated or shaped by the rule of law. These issues go beyond any one company and underscore the imperatives of addressing the global public policy implications of internationally marketed communications infrastructure and services.

Products used by law enforcement and government agencies for “lawful interception” become problematic in countries with weak rule of law and where dissident activities can be viewed as criminal. In 2012, the Citizen Lab found evidence of FinFisher being used to target Bahraini activists. Since that initial finding, we further revealed evidence of FinFisher campaigns with political content relevant to Ethiopia and Malaysia. In our most recent research, we detected FinFisher command and control servers (C2s) in 36 countries. The presence of a Finfisher C2 in a country does not necessarily imply that law enforcement or government agencies of that country are clients and operators of FinFisher. However, the global proliferation of Finfisher raises questions regarding how the product is being used, particularly in countries with problematic human rights records.

Lawmakers at national and regional levels and civil society organizations have called for greater regulation of sensitive technologies through industry self-regulation or legislative measures, such as export controls and sanctions. In December 2012, the European Union passed a resolution on a “Digital Freedom Strategy” that inter alia called for “a ban on exports of repressive technologies and services to authoritarian regimes” and “the establishment of a list, to be regularly updated, of countries which are violating freedom of expression in the context of human rights and to which the export of the above ‘single-use’ items [technologies that inherently threaten human rights, such as jamming, surveillance, monitoring and interception technology] should be banned.”⁸

Civil society groups, policymakers, and others have pressured the private sector to better control the end uses of their products, leading to new frameworks for corporate social responsibility. To this end, civil society has developed a number of frameworks to encourage corporate social responsibility. For example, the Electronic Frontier Foundation’s “Know Your Customer” framework encourages companies to investigate customers before and during transactions.⁹

Multi-stakeholder efforts have also emerged, such as the Global Network Initiative, a group of companies, civil society organizations, academics, and investors that provides a framework based on commitments to freedom of expression and privacy principles.¹⁰ Some companies have developed their own corporate social responsibility policies. For example, Websense has a policy of not selling to “governments or Internet service providers that are engaged in any sort of government-imposed censorship.”¹¹

Ongoing research and monitoring of these technologies for censorship and surveillance is vital for informing policymakers and vendors who many not be aware that their products are being used to violate human rights. In 2009, after the OpenNet Initiative informed Websense that its products were being used to filter political content in Yemen (and thus violating the company’s anti-censorship policy), Websense withdrew software update support. In 2011, the company joined the Global Network Initiative.¹² Similarly, media attention and pressure from government and civil society organizations in the wake of findings by Citizen Lab and others that Blue Coat devices were active in Syria¹³ prompted the company to withdraw support, updates, and other services to active Blue Coat devices in the country.¹⁴

Addressing this growing market and the potential of human rights violations stemming from the use of Internet filtering and surveillance products requires dialogue between the private sector, government, and civil society. Bringing together perspectives from these stakeholders is crucial for moving towards effective options for intelligently controlling these technologies and ensuring companies can fulfill their moral and ethical obligations while also protecting them from liabilities that could arise from knowledge gaps and / or partner malfeasance in their global operations.

NOTES

1. For research on Internet filtering products being used in institutional settings, see: Peacefire: Open Access for the Net Generation, http://peacefire.org/info/about-peacefire.shtml; “Seth Finkelstein's Anticensorware Investigations - Censorware Exposed,” http://sethf.com/anticensorware/; and Benjamin Edelman, “Expert Report of Benjamin Edelman,” Multnomah County Public Library et al., vs. United States of America, et al., http://cyber.law.harvard.edu/archived_content/people/edelman/pubs/aclu-101501.pdf.
2. “Blue Coat PacketShaper Application List,” Blue Coat, http://www.bluecoat.com/sites/default/files/documents/files/PacketShaper_Application_List.c.pdf.
3. Gamma International, “Remote Monitoring & Infection Solutions,” FinFisher IT Intrusion, http://wikileaks.org/spyfiles/files/0/289_GAMMA-201110-FinSpy.pdf.
4. See Gamma International, “Remote Monitoring & Infection Solutions,” FinFisher IT Intrusion, http://wikileaks.org/spyfiles/files/0/289_GAMMA-201110-FinSpy.pdf; Margaret Coker and Paul Sonne, “Firms Aided Libyan Spies,” Wall Street Journal, August 30, 2011, http://online.wsj.com/article/SB10001424053111904199404576538721260166388.html; Ben Elgin, Vernon Silver, and Alan Katz, “Iranian Police Seizing Dissidents Get Aid Of Western Companies,” Bloomberg, October 30, 2011, http://www.bloomberg.com/news/2011-10-31/iranian-police-seizing-dissidents-get-aid-of-western-companies.html; and Jamie Doward and Rebecca Lewis, “UK 'Exporting Surveillance Technology to Repressive Nations',” The Guardian, April 7, 2012, http://www.theguardian.com/world/2012/apr/07/surveillance-technology-repressive-regimes.
5. See: “Tunisia,” OpenNet Initiative, 2005, http://opennet.net/studies/tunisia; “Saudi Arabia,” OpenNet Initiative, 2009, http://opennet.net/research/profiles/saudi-arabia; “United Arab Emirates,” OpenNet Initiative, 2009, http://opennet.net/research/profiles/united-arab-emirates; “Yemen,” OpenNet Initiative, 2009, http://opennet.net/research/profiles/yemen; and Jakub Dalek, Bennett Haselton, Helmi Noman, Adam Senft, Masashi Crete-Nishihata, Phillipa Gill, and Ronald Deibert, “A Method for Identifying and Confirming the Use of URL Filtering Products for Censorship,” IMC’13, October 23-25, 2013, Barcelona, Spain.
6. Helmi Noman, “When a Canadian Company Decides what Citizens in the Middle East Access Online,” OpenNet Initiative, May 16, 2011, https://opennet.net/blog/2011/05/when-a-canadian-company-decides-what-citizens-middle-east-can-access-online; and Citizen Lab, “O Pakistan, We Stand on Guard for Thee: An Analysis of Canada-based Netsweeper’s Role in Pakistan’s Censorship Regime,” June 2013, https://citizenlab.org/2013/06/o-pakistan/.
7. “Behind Blue Coat: Investigations of Commercial Filtering in Syria and Burma,” Citizen Lab, November 9, 2011, https://citizenlab.org/2011/11/behind-blue-coat; Morgan Marquis-Boire et al., “Planet Blue Coat: Mapping Global Censorship and Surveillance Tools,” Citizen Lab, January 15, 2013, https://citizenlab.org/2013/01/planet-blue-coat-mapping-global-censorship-and-surveillance-tools; and Morgan Marquis-Boire et al., “Some Devices Wander by Mistake: Planet Blue Coat Redux,” July 9, 2013, https://citizenlab.org/2013/07/planet-blue-coat-redux/.
8. European Parliament, Report on a Digital Freedom Strategy in EU Foreign Policy (2012/2094(INI)), November 15, 2012, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2012-0374+0+DOC+PDF+V0//EN&language=EN. The US State Department also issued a guide on the export of “sensitive technology” to Iran and Syria pursuant to applicable sanctions, and the British government invoked an existing international export control regime—the Wassenaar Arrangement—to assert that FinFisher was subject to export controls. See: “State Department Sanctions Information and Guidance,” US Department of State, November 8, 2012, http://www.state.gov/e/eb/tfs/spi/iran/fs/200316.htm; and “British government admits it has already started controlling exports of Gamma International's FinSpy,” Privacy International, September 10, 2012, https://www.privacyinternational.org/press-releases/british-government-admits-it-has-already-started-controlling-exports-of-gamma .
9. Cindy Cohn and Jillian C. York, “’Know Your Customer’ Standards for Sales of Surveillance Equipment,” Electronic Frontier Foundation, October 24, 2011, https://www.eff.org/deeplinks/2011/10/it’s-time-know-your-customer-standards-sales-surveillance-equipment.
10. Global Network Initiative, http://www.globalnetworkinitiative.org.
11. “Anti-Censorship Policy,” Websense, http://www.websense.com/content/censorship-policy.aspx.
12. Jillian C. York, “Websense Bars Yemen's Government from Further Software Updates,” OpenNet Initiative, 2009, https://opennet.net/blog/2009/08/websensebars-yemens-government-further-softwareupdates.
13. “Web Censorship Technologies in Syria Revealed,” Reflets.info, August 12, 2011, http://reflets.info/opsyria-web-censorship-technologies-in-syria-revealed-en; “Blue Coat’s Role in Syria Censorship and Nationwide Monitoring System,” Reflets.info, September 1, 2011, http://reflets.info/bluecoats-role-in-syrian-censorship-and-nationwide-monitoring-system; “#OpSyria: Syrian Censorship Logs (Season 3),” Reflets.info, October 4, 2011, http://reflets.info/opsyria-syrian-censoship-log; “Behind Blue Coat: Investigations of Commercial Filtering in Syria and Burma,” November 9, 2011, https://citizenlab.org/2011/11/behind-blue-coat/.
14. “Update on Blue Coat Devices in Syria,” Blue Coat, December 15, 2011, http://www.bluecoat.com/company/news/update-blue-coat-devices-syria; and Citizen Lab, “UPDATE: Are Blue Coat Devices in Syria “Phoning Home?,” Citizen Lab, January 14, 2013, https://citizenlab.org/2011/11/behind-blue-coat/#update.

Bruce Etling

The Internet has not led to radical new forms of direct democracy, as some predicted in the early days of the Web, but it is hard to look at the major protests and political changes that have swept across the globe recently and not see myriad ways in which the Internet has empowered citizens Online tools continue to aid citizens in efforts to check government and corporate power and to highlight cases of corruption and abuse of power. The networked public sphere has continued to mature into a political force, marked by important victories such as the thwarting of the Stop Online Piracy Act (SOPA), Protect-IP Act (PIPA), and Anti-Counterfeiting Trade Agreement (ACTA). The Internet and social media have also enabled new forms of citizen dissent, the ethics of which are still under debate, including leaks of national security information by well-placed individuals in security bureaucracies and the emergence of “hacktivism” tactics as new forms of civil disobedience. In the most advanced of Western democracies, the Internet has created additional pathways for constituents to be heard by their representatives and made it easier for citizens to participate, through mechanisms such as e-voting in Switzerland. Still, the greatest changes to the citizen-government relationship appear to be those created at the grass roots by citizens, instead of those initiated from the top-down by governments.

The Internet and Protests

Citizens have increasingly used the Internet and social media to mobilize and coordinate protests. In the past few years alone, the world has seen a number of mass protests, including those connected to the Arab Spring in the Middle East and North Africa, those sparked by election falsification in Russia, disputes over public park space in Turkey, protests over an increase in public transportation fares in Brazil, the Indignados movement in Spain, and the global Occupy movement. A common undercurrent in many of these protests is citizen pushback against corruption, entrenched political elites, and economic inequality. These protests were not caused by the Internet, but online tools and social media platforms have played important information-sharing, coordination, mobilization, and community-building roles when economic, political, demographic, and other structural factors have aligned to create conditions conducive for protests and political change.

The most spectacular and far-reaching examples of Internet-enabled protests remain those associated with the Arab Spring, which led to the fall of entrenched dictators in Tunisia, Libya, Yemen, and Egypt. Those events also undercut many arguments put forward by skeptics that online talk is cheap, that online activism is not real activism, that the Internet is more useful for dictators, and that the region was immune to the gradual but continuing expansion of democracy. For example, research in Egypt shows that social media, in particular Facebook, provided new sources of information that the regime was not able to counter, and that social media use greatly increased the likelihood that individuals would attend protests on the first day, when success is typically least assured and the risk of attendance the greatest. The Internet was also critical in shaping how citizens made decisions about the logistics of protests and their likelihood of success.¹ Researchers have also found evidence that social media played a central role in shaping political debates in the region, especially among the young, urban, and well-educated; that spikes in online revolutionary discussion often preceded major offline protest events; and that social media helped spread democratic ideas across international borders.² However, as events in the region since 2011 have shown, while the Internet may be especially useful for protests and issue-specific campaigns, social media have yet to provide an equivalent level of support to citizens in building democracy and creating new political institutions.

A significant benefit of the Internet is that it massively reduces the costs of mobilization and coordination of collective action. Event pages on social networking sites such as Facebook, Twitter, and similar local variants provide protest leaders with easy and low-cost ways to spread the word about protests and mobilize core constituencies and for protest participants to signal their intention to participate. Protesters can then also use social media sites, including video and photo sharing sites, to show the wider public their power in numbers, share popular signs and humorous memes, develop a group identity, and expose the reaction of the state, including government-sanctioned violence.

These tools are also used to provide alternative framings of the protest movement and protest activities. For example, while many have questioned the political impact of the Occupy movement, it is clear that the movement was able to push the frame of the “99%” into mainstream public discourse. The ability to put alternative framings and agendas into the public sphere is especially important in countries such as Russia, China, and Iran, where there is strong influence over or complete control of mainstream media outlets, including both print and broadcast. These tools also offer new ways for protesters to participate in movements and contribute to campaigns through, for example, creating, posting, and remixing user-generated video. More generally, online tools have also made easier identifying affinity groups and connecting divergent groups and parts of society that might have vastly different political platforms, but come together at times of political discontent and mass protests. Examples include nationalists and liberals in Russia united behind a common protest banner and Islamists, leftists, and youth movements in Egypt in the anti-Mubarak protests in 2011. Finally, the Internet and social media have created a public space for experimentation and learning at a local, national, and international level. This enables the diffusion of protest ideas and also allows movement leaders in one place to see what is working and what is not, and then adjust strategy, tactics, framings, and organizational efforts for greater success given local conditions.

In many cases, offline protest events are still critical for these movements and issue campaigns; the success of exclusively online action is still quite rare. However, in defeating the SOPA/PIPA legislation, online actions were probably much more important than the small, offline protests held in cities across the United States. The mix of offline and online organization also varies depending on the individual movement. For example, in Brazil’s recent protests, offline organizational efforts by the Free Fare movement seem to have been important to organization of the initial protests, and helped to lay a foundation of dissent before just a small increase in transportation fares ignited large-scale protests. Those protests grew larger than anything seen before by organizers thanks at least in part to social media, and video evidence of police brutality also helped pull more Brazilians to the side of the protesters. It is worth highlighting that the Internet has been especially helpful for protests and issue-specific campaigns, but in many instances has not led online protest leaders to run for office, create political parties, or otherwise participate in mainstream politics (although there have been exceptions, including in Russia, Tunisia, and the Tea Party in the United States).

While the media and many scholars tend to emphasize more positive examples of social media empowering democratic social movements and civil society, the Internet does not pick favorites. Those that society has intentionally marginalized from the political process—including extremists, nationalists. and nativists—can just as easily use the Internet. Still, those with ideas that are on the margins and have little support to begin with rarely gain mass followings solely because of a larger potential audience on the Internet. It may be easier for such individuals to find each other than it was in the past, but this does not mean their ideas have become more popular.

An Accountability and Fact-Checking Platform

Citizens living in a range of international settings and under various regime types continue to use the Internet as a check on corruption, mismanagement, and abuse of power by governments, corporations, and political and economic elites. China has provided a number of examples where netizens have been able to highlight corruption and malfeasance, abuse by local officials, and cover-ups of scandals that the government-controlled media would not cover. Examples include the tainted powdered milk formula scandal in 2008, the infamous Wenzhou high-speed train crash, and numerous examples of land disputes and ecological disasters. As a check on corporations, we also see cases where workers are increasingly expressing their demands for better pay and working conditions to international customers and national leaders, such as multiple strikes by employees of technology producer Foxconn.

Online communities are able to bring issues to the forefront of the public debate that would not occur otherwise, especially where political or economic elites have control over national media. Citizen journalism platforms, including Canada-based NowPublic, Global Voices internationally, and Ridus in Russia, among others, play an important role in surfacing and publicizing cases of corruption and abuse of local leaders. At least in China, the central government seems willing to let local leaders take the fall when this type of corruption and abuse become publicized, perhaps to let off steam in an otherwise tightly controlled political space, even if structural changes at the national level still seem far off.

The Networked Public Sphere and Issue-Specific Campaigns

The rise of social networking and digital communication technologies has facilitated the creation of the networked public sphere, broadly defined as an online public space where citizens can come together to debate and decide what issues are most salient as well as determine how to act on them. While critics argue that online organization and protests are not equivalent to those undertaken by previous generations of social movements, the networked public sphere has had some important recent victories that undermine this skepticism. The starkest examples are online efforts that killed Internet-related legislation that was pushed by the music and recording industries. In the United States, online efforts averted passage of the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). Soon after, the international trade agreement ACTA lost support in the face of similar civil society opposition. Individuals can play outsized roles in the networked public sphere: one example is the Houston blogger who started an online campaign to ban the use of ‘pink slime’ (which food writer Michael Pollan describes as a kind of industrial-strength hamburger filler made from a mix of slaughterhouse scraps and treated with ammonia) in the hamburger served in the federal school lunch program. Within days of the online petition, the USDA allowed schools to drop the product, and major supermarkets stopped carrying it. Recently though, it still seems that collectives—informal and formal civil society groups and social movements—have more effectively leveraged the Internet in support of issue-specific campaigns.

New Forms of Civil Disobedience

Networked technologies have also enabled new forms of civil disobedience. Two forms of digital disobedience have been on the rise recently: DDoS attacks that take down websites (and other “hactivist” tactics such as defacing opponents’ websites) and leaks of national security information. The ethics and legitimacy of these tactics, to say nothing of the outcomes, continue to be fiercely debated. Even if consensus never emerges, it seems very likely that these news forms of civil disobedience will continue for the foreseeable future and that they will continue to be highly disruptive to traditional legal and political institutions. Leaks certainly occurred before the Internet, but the leak by Bradley (now Chelsea) Manning of US diplomatic cables was unmatched in its scale and by Manning’s choice to distribute the cables through the Internet via the Wikileaks website, instead of primarily through a traditional print publication.

The use of DDoS attacks by activists is controversial within digital activist communities. Some argue that DDoS attacks are also legitimate forms of civil disobedience. Others view such activity as akin to digital vandalism. These types of attacks have taken place for decades, in support of a range of different causes, from the Zapatista movement in Mexico to more recent DDoS attacks both in support of and against Wikileaks. DDoS attacks are also frequently used by proxies of the Russian, Chinese, and Syrian governments to attack domestic and international opponents of those regimes. In the case of the Russian election protests, DDoS attacks were also used by the Russian branch of Anonymous to take the website of the pro-Putin youth group Nashi offline. Hackers also released internal Nashi emails that purportedly proved that the group pays journalists and online communities for positive coverage of itself and the Russian government.

The long-term political impacts of these new forms of civil disobedience remain unclear. The Manning case does not seem to have led to any major changes in US foreign policy or to drastic shifts in US public opinion against the wars in Iraq and Afghanistan, and Manning has since been sentenced to 35 years in prison. The US State Department cables Manning leaked to Wikileaks appear to have had a larger impact in other countries. For example, the leaked cables appear to have played a role to the Arab spring protests after they were used by activists to attest to the corruption and excesses of the rulers at the time. The evolving Snowden case, however, has led to a national and global conversation about US government surveillance practices, the role of private companies in these practices, and user privacy. The efficacy of DDoS attacks is not entirely clear either, since most sites come back online fairly quickly. DDoS and other hacker attacks seem most useful in raising awareness and gaining attention for social movements, a critical issue for all activists who, even in the new media ecosystem, still struggle to gain attention among the many new voices and sources of information available in the broader media ecology.

Despite the success of citizens in pushing back against governments and corporations, large institutions continue to dominate the Internet space. This makes it difficult for individuals to act autonomously and securely online, especially for activists who may work at cross-purposes to both corporate and government interests. Platforms and software exist that can help citizens counter this trend, such as anonymizers and tools for encryption and secure email and speech. Unfortunately, these tools have not yet gained wide adoption beyond the most tech-savvy of users, but that may change as a result of revelations about the reach of NSA and other government surveillance programs. The renewed interest in these tools was demonstrated recently by the tremendous increase in subscribers to Lavabit’s secure email service, whose owner ultimately closed the company instead of betraying his promise to provide secure email to his customers. But this example also points to a weakness of these tools, as they are often run by small companies or groups of users that do not have the legal and lobbying clout to push back against governments.

Conclusion

Digitally mediated collective action by individuals and groups is constantly evolving as activists continue to experiment, learn, and adapt from one another and from the reaction of states, corporations, and other power holders to their efforts. Recognizing the importance of online, grassroots support, corporate and state actors are increasingly trying to harness the power of the Web as well. It is unclear if governments and corporations will be able to create “astroturf” online communities that have the authenticity and legitimacy of emergent protest movements, but it may be enough to sow fear, uncertainty, and doubt through well-financed misinformation campaigns. It is also unclear how widely the lessons of single-issue campaigns such as SOPA/PIPA can be applied, or if new forms of digital disobedience will ever be accepted by majorities as legitimate political acts. The power dynamic between governments, corporations, and citizens has not been totally overturned, but digitally empowered civil society actors continue to disrupt that status quo in ways that was hard to imagine even just a few years ago, and on a global scale that has surprised even the most optimistic among us.

NOTES

1. Zeynep Tufekci and Christopher Wilson, “Social Media and the Decision to Participate in Political Protest: Observations From Tahrir Square,” Journal of Communication, 62 (2012) 363-379
2. Philip N. Howard, Aiden Duffy, Deen Freelon, Muzammil Hussain, Will Mari and Marwa Mazaid, “Opening Closed Regimes: What was the Role of Social Media During the Arab Spring?”, Project on Information Technology & Political Islam: http://pitpi.org/wp-content/uploads/2013/02/2011_Howard-Duffy-Freelon-Hussain-Mari-Mazaid_pITPI.pdf.

Zeynep Tufekci

“I was wrong about this Internet thing.”

I heard this sentiment again and again during my interviews at Gezi Park, Istanbul, during the height of the protests in June 2013. The protests were sparked by top-down plans to raze a small park in the city’s historic Taksim square in the Beyoğlu district, an area known for its concentration of artists, nightlife, and theaters, and to replace it with a shopping mall and a hotel fashioned as a replica of the Ottoman Barracks that had once stood where the park was.

This growing realization of the Internet’s power came from middle-aged people who had previously chided youth for their attachment to screens, phones, and social media. Yet when Turkey’s heavily self-censored corporate media—owned by large conglomerates that vie for lucrative construction, energy, and urban renewal contracts from the government and that use their mass media outlets as a means to curry favor with the powerful ruling party, the AKP—broadcast penguin documentaries and cooking shows while ignoring the multi-day clashes between protesters and the police at the center of the most populous city in the country, it was social media that got the news out to the bewildered, angry residents of Istanbul.

At least 50 percent of the population of Turkey is online, most through broadband connectivity. Mobile devices are ubiquitous as well—the number of cell phone subscriptions cover about 90 percent of the population. Twitter has become the medium of choice for the protesters, who favor it for its lightweight applications on mobile devices, short texts, and ability to get news with pictures out quickly to large numbers of people. With estimates as high as 39 percent of Turkey’s Internet users adopting the platform, and daily “trending topics” wars between supporters of AKP and Gezi protesters, it was not a huge surprise when the Prime Minister Erdogan singled out the platform and called it a “menace to society. The biggest lies are all there.”¹

Many protesters were convinced that without Twitter’s ability to spread news quickly and widely, they could not have organized such large-scale action. Many had wrestled with the problem of false reports on Twitter, targeted by Erdogan as an indication of platform’s untrustworthiness, and had undergone a crash course on social media literacy. “I have learned which accounts to trust and how to verify information,” many told me. Others went a step further: “If I hear of clashes, I personally try to get there and take a picture to provide proof,” a protester told me, while showing a wound in his leg from being hit with a tear gas canister while on a mission to verify and report.

Despite AKP officials’ blatant dislike of social media as source of dissent, the Internet was not unplugged either in the Gezi Park or in the country, nor were any of the platforms shut down. Instead, the AKP seems to have decided on a strategy of engaging in a public relations blitz on social media by hiring “6,000 social media experts” itself,² increasing its efforts to force social media companies to open offices in Turkey so that the government can acquire user IP’s in response to court rulings (currently Facebook and Google have offices in Turkey, but Twitter does not), and relying on its total dominance of mass media. In fact, polls showed that majority of AKP supporters believed that the protests were “organized by foreign sources,” a claim repeated multiple times by the prime minister and other AKP officials on mass media. AKP officials have also announced that they will pass new laws to “regulate misinformation” on social media—sending a clear signal that Turkey’s Internet users will come under close scrutiny.

However, Turkey’s electoral system, designed by generals in the 1980 coup, makes it very hard for new parties to break into the parliamentary system. This barrier, coupled with the incompetence of legacy opposition parties—which cannot be replaced, thanks to the said electoral system—and the AKP’s own powerful electoral machinery, makes it unlikely that a social media-organized opposition will mount an effective electoral challenge in the 2014 elections.

Without the Internet, the opposition to the AKP’s popular but strong-handed rule may never have made it into the streets in such a spectacular fashion. It remains to be seen if they can find their way into the voting booth in the face of corrupt mass media, a skewed electoral system, and a smart, powerful, and dominant ruling party that is ready to both beat them and join them online.

NOTES

1. Will Oremus, “Turkish Prime Minister Blames Twitter for Unrest, Calls It ‘the Worst Menace to Society,’” Slate, June 3, 2013, http://www.slate.com/blogs/future_tense/2013/06/03/turkey_protests_prime_minister_erdogan_blames_twitter_calls_social_media.html.
2. Ayla Albayrak and Joe Parkinson, “Turkey's Government Forms 6,000-Member Social Media Team,” Wall Street Journal, September 16, 2013, http://online.wsj.com/article/SB10001424127887323527004579079151479634742.html.

[The relationship between information and law]

a) Background

The text written by Jean Nicolas Druey is a chapter taken from his seminal book Information as a Subject of Law (Information als Gegenstand des Rechts, 1995).  The excerpt needs to be read in a broader biographical and philosophical context.  Druey is a "man of the books" who is bilingual and gifted with many talents, including a concert diploma in music. He witnessed with scepticism the technological transition from an analogue and offline information environment to the global digital network society, which has been accompanied by an explosion of the societal perception value of "information" as its building block.  This positive charging of the information phenomenon has also been reflected in an increasing number of legal and regulatory provisions-ranging from a new generation of data protection laws to farreaching disclosure and transparency regimes-aimed at capturing, channelling, allocating and relying upon information in almost all areas of life.  Against the backdrop of these tectonic shifts, Druey's book starts with a critical discussion of the relationship between law and information, with the central observation that information-despite the legal system's enormous "appetite"-is a horse difficult to catch.  The reasons are manifold and both phenomenological and normative in nature.  First, law is itself information, a fact that puts limits to any attempt at creating a comprehensive information order (an idea that was considered by German scholars).  Second, information (in its multiple dimensions, with Druey borrowing from Speech Act theory) ultimately needs to be interpreted in a human context, where fundamental rights and values demand that the legal system constrains itself with regard to the enclosure of information. Another aspect is worth mentioning:  Perhaps surprisingly, and certainly against the mainstream opinion at the time of publication, Druey argues that information is not a value in itself, but rather value neutral from a legal perspective, as information might also have negative effects in case of low quality, depending on context and circumstances.  This normative point is particularly important as it suggests that law should not have any a priori position vis-à-vis information-which also means that there cannot be a general default position in favour of information flow, regardless of the perception value generally attributed to information.

At the core of Druey's book is a careful analysis of various legal institutions that play a key role in regulating information, regardless of their provenance and place within the legal system.  It is this cross-sectional discussion that sets the stage for a theory of information law spanning across all areas of law, bridging private and public law-a feature of the St. Gallen School of Information law, but unusual given the contemporary practice of continental European scholarship to focus on clearly delineated sub-disciplines.  The analysis of information-regulating institutions and a diverse set of associated materials (including case law from various jurisdictions) confirms the initial observation that the nature of information (especially its subjectivity and contextuality) makes it very difficult for law (aimed at objectivity and generalization) to deal with information.  Consequently, Druey's attention shifts to the question from what sources appropriate norms aimed at governing information can be generated, and through what mechanisms (with an emphasis on procedures) they can be "imported" into the legal system, with the goal to facilitate between the contextual information phenomenon on the one hand and the law on the other. Druey's next book is expected to provide a deep dive into communication-born norm genesis and the circumstances in which such norms crystallize into legal norms.

His ground breaking oeuvre offers a fundamental theory of information law, and serves as the foundational piece of the so-called "St. Gallen School of Information Law", which is describe in more detail here. This school of thought travelled widely beyond the borders of Switzerland and is now acknowledged and accepted as state of the art. After his retirement, the information law approach has been further developed and in important respects it has been expanded, by a network of collaborators and doctoral students associated with the Research Center for Information Law, which was founded by Druey in 2001 and collaboration with a small number of St. Gallen faculty members and a doctoral student. The following three texts provide a reading sample authored by the three most active contributors to the St. Gallen school of information law: Jean Nicolas Druey, Herbert Burkert, and Urs Gasser.  The inclusion of John Palfrey, a former director of law at Harvard Law School and a former rector of the Berkman Center for Internet and Society should bear witness to the fact that the school has reached a state of transnational acceptance.

Jean Nicolas Druey is a professor emeritus of the University of St. Gallen and former legal counsel to the ATAG - now Ernst of Young, large international accounting firm based in Zurich. He started his career as an in-house lawyer with the pharmaceutical company Hofmann-La-Roche, but spent most of his professional life in academia. At the University of St. Gallen, he taught private and commercial law for over two decades, and from time to time offered doctoral seminars in information law. Druey gained an international reputation in the scholarly community for his important contributions to Swiss and European corporate group law (Konzernrecht) and generations of students and practitioners have appreciated Druey's work based on a leading treatise on Swiss obligation law as well as a textbook on the law of succession he authored.  Later in his career, and after more than twenty years of research dating back to his time as an LL.M. student at Harvard Law School, Druey set a milestone in another, less well-known field of law by publishing his seminal book "Information as a Subject of Law" (Information als Gegenstand des Rechts).

b) Summary

The text at hand is the second chapter of Jean Nicolas Druey's seminal book "Information as a Subject of Law" (Information als Gegenstand des Rechts).  The chapter is embedded in the opening part of the book under the header "Phenomenon" and explores in fundamental ways the relationship between information and law. Typically for Druey's scholarship, the text is written in a very concise manner - each sentence, in fact, each word was carefully chosen. As such, the relatively short chapter (pp. 29-43) resembles an accordion: The insight offered in the text almost magically expands and unfolds as the level of sophistication of the reader increases.

The main phenomenological insight is frontloaded (p. 29): The relationship between information and law is bi-directional, as law is itself a particular type of information.  Consequently, law is both higher- and lower-ranking vis-à-vis the information phenomenon.  The conclusion that Druey draws from this observation is both straightforward and fundamental: Information in its totality (think of it as the entire information universe) cannot be regulated by and through law.  To put it differently: As law is itself information, it cannot capture all of it; law's access to information needs to be limited for a phenomenological reason (later in the book, Druey discusses in detail the normative reasons why law should not aim to capture and regulate information - and needs justification for doing so in specific circumstances).

Building upon the fundamental insight as to law's quality of being information, Druey further specifies the relationship. First, he clarifies that law consists of norms, and therefore law is a special type of information aimed at ensuring socially adequate behavior. In other words, law is not any kind of information, but information that is authoritative. In a second step, Druey focuses on the flipside of the relationship between information and law that is at the core of the book: information as a phenomenon within law. The key point here is that even if law is information, and even if it has only limited access to information (having the blind-spot of being information itself), it has the power to regulate information. In fact, information in the human context, and therefore also law, has the inherent intent to regulate information, according to Druey (note that it is here where the impact of Speech Act theory on Druey's thinking – see above, context – becomes visible for the first time in the book; however, without an explicit reference yet.) The next section takes a closer look at this "information within law" dimension by discussing the various alternatives that law has when approaching information. Druey calls these alternatives "strategies" and outlines four basic approaches (and some variations of them):

• Global strategies, including distribution, allocation, and protection of information.

• Partial strategies, including process-oriented interventions (e.g. in the context of procedural law through information obligations); the structuring of information flows in organizations; and the granting of exclusivity rights regarding certain types of information (e.g. protection of trade secrets).

• Informational participation in the context of communities - such as information sharing during marriage - and the question as to what extent the being part of a community triggers legal obligations of information sharing.

• Protection against informational "violence", where law protects against certain informational acts that would do harm (examples include defamation or deception).

Chapter two ends with reflections on the ways in which information serves the law. The basic point is that information serves law by providing the key mechanism for law's primary function: to settle conflicts through non-physical means - or at least by putting the "message" first, before potentially following up with physical means in case of non-compliance with law. Further, Druey characterizes information as the basic condition for the functioning of the legal system: Wherever law aims to regulate, information about the law (norm information) needs to be disseminated in order to have a governing effect. While information serves a key function within law, Druey also points out that there are several limitations on how information can be instrumentalized for law's purpose.  Among the problems is that the effect of any information on its recipient cannot be determined from the outset, as human information processing is a highly contextual and subjective process. In this chapter, Druey introduces the phenomenological leitmotif as far as information and law is concerned, upon which he - like a composer and concert pianist (see background) - further elaborates throughout the book in a series of highly sophisticated variations that add value and much nuance to the general theme. Perhaps most importantly, however, the chapter makes a strong and novel point that - even regardless of (culture-specific) normative barriers such as, for instance, freedom of thought or speech - law cannot regulate information in its totality due to phenomenological reasons

c) Text

You can find a scan (PDF) of the original text here:
G_2.17_DRUEY_Verhältnis Information Recht

Jeff Hermes and Andy Sellars

For over a decade, scholars have noted the increased role that those outside the institutional press play in informing the public. This past year, however, has shown an especially significant rise in the prominence of primary source material originating from members of the general public. In numerous significant instances, individuals have engaged with primary source material to supplement mediated news content or highlight under-reported issues. This engagement has involved both the gathering of primary source material to share with others and the collective analysis of such material by loosely-connected networks of experts, analysts, and commentators.

Over the past year, several major news stories were broken by concerned citizens and activists gathering and disclosing direct evidence of government and political activity, including the videos shot by citizens of Damascus documenting the use of chemical weapons in the Syrian civil war; the “47 percent video” recorded by a member of the catering staff at an event held for presidential candidate Mitt Romney; the PRISM slide deck and other NSA materials disclosed by Edward Snowden to The Guardian; and the “lady in red” photo of Ceyda Sungur, which served as a unifying moment for anti-government protests in Turkey. This year has also brought unexpected collaboration between citizen media and law enforcement, including during the investigation into the Boston Marathon bombing, where the FBI actively solicited terabytes of eyewitness photographs and video to help identify the bombers.

In the United States, courts have begun to recognize a constitutional right of citizens to engage in this form of direct documentation, at least when directed at the actions of the government. Following the 2011 decision of a federal appeals court in Glik v. Cunniffe, a second federal appellate court recognized a First Amendment right for citizens to record the police in ACLU v. Alvarez. Marking a rare intervention in the behavior of state law enforcement, the Department of Justice's Civil Rights Division also stepped in to support the rights of citizens to record the police in a case pending in federal court in Maryland, Sharp v. Baltimore Police Department.

Private organizations, including MuckRock, Open Corporates, OpenGov, and MapLight, continue to provide resources to facilitate access to public records and government data and publish relevant documents. Judicial attention to transparency with electronic government records has increased concurrently, punctuated in the United States by cases addressing GIS mapping data and access to government document metadata. Meanwhile, a number of organizations, including Public.Resource.Org, SCOTUSblog, and the Oyez Project, have obtained funding, favorable judicial rulings, or other support for efforts to mirror general government data on their own websites.

While the creation and surfacing of primary source material by citizens has been seriously questioned only when the source breaches a duty of confidentiality over the information disclosed, such as the disclosures of Edward Snowden, significantly more criticism has been voiced as citizens move from documentation roles into analysis roles. This complexity was best highlighted during the events surrounding the Boston Marathon bombing. While public documentation of the incident was critical to the law enforcement investigation, the public’s desire for information at a rate faster than the government (or traditional news sources) would provide it led many citizens to try to parse primary source material directly. The results of these efforts were mostly negative; attempts to locate the bombers using online platforms like Reddit (on early iterations of /r/findbostonbombers) and to gather more information on the day of the Tsarnaev manhunt by listening to police scanners led to misidentifications and confusion – although similar criticisms were appropriately leveled against institutional news outlets for similar behavior. The increasing social recognition of traditional media ethics around verification of information posted on these sites has led to a richer and more expedient dissemination of information than traditionally thought possible through institutional media outlets.

The increased role of citizens in surfacing and analyzing documents has helped break news stories and improve public understanding of issues, but not all government activity with respect to primary source material has favored publication. Even in the United States, a nation that prides itself in transparency and free speech, the government has aggressively punished some of these disclosures. This has included a notorious criminal prosecution against activist Aaron Swartz for gathering thousands of academic articles for an undisclosed future use, which received significant attention and scrutiny following Swartz’s suicide. The Department of Justice also obtained a conviction against Andrew Aurenheimer for accessing an unprotected AT&T website, escalating the charges from a misdemeanor to a felony based on Aurenheimer’s disclosure of the data he obtained from the AT&T website to news website Gawker as evidence of AT&T’s security vulnerability. (This case is now on appeal.) In August 2013, the United States also sentenced Chelsea Manning to 35 years in military prison, following her disclosure of thousands of documents to the organization Wikileaks. The position reflected in the pending federal shield bill—that citizen media and organizations dedicated to surfacing primary source material are not “journalists” worthy of protection—further underscores the continuing reluctance of the government to recognize the critical role that primary source material plays in informing the public.

State Sovereignty and Federalism: Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee

The Court further clarified the role of state sovereignty and federalism concerns in the personal jurisdiction analysis in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982).

In that case, lack of personal jurisdiction was raised as a defense by a number of foreign defendant insurance companies. The plaintiff contested the defendants’ alleged lack of sufficient minimum contacts, but the defendants refused to produce the evidence required by the court to make a determination on the sufficiency of such contacts with the forum. After numerous discovery orders and warnings went unheeded, the court accepted the jurisdictional facts as alleged by the plaintiffs as established per FRCP 37(b)(2)(A) and found that it had jurisdiction. The defendants subsequently appealed.

Rule 37(b)(2)(A) grants a district court the power to impose sanctions for failure to comply with discovery requirements including “[a]n order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.” 

While the defendants contended that “[i]f a court does not have jurisdiction over a party, … it may not create that jurisdiction by judicial fiat,” Justice White, writing for the Court, found that this mischaracterized the issue at hand. He reiterated that, while no action of the parties can create subject matter jurisdiction for a court if it is lacking, certain actions of a party can serve to vest a court with personal jurisdiction over that party (for example, a waiver by appearance or, as here, a failure to comply with discovery requirements regarding the establishment of jurisdictional facts) even if personal jurisdiction would otherwise have been lacking. 

In explaining the possibility for a defendant to waive personal jurisdictional defenses, the Court focused on the personal nature of the right protected by the Due Process Clause rather than on the sovereignty and federalism concerns that had been highlighted in Word-Wide Volkswagen: “The requirement that a court have personal jurisdiction flows not from Art. III, but from the Due Process Clause. The personal jurisdiction requirement recognizes and protects an individual liberty interest. It represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty. [FN10] Thus, the test for personal jurisdiction requires that “the maintenance of the suit ... not offend ‘traditional notions of fair play and substantial justice.’ … Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived.”

In the accompanying footnote, Justice White explained further:

“It is true that we have stated that the requirement of personal jurisdiction, as applied to state courts, reflects an element of federalism and the character of state sovereignty vis-à-vis other States. For example, in World-Wide Volkswagen Corp. … we stated: 
“[A] state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist ‘minimum contacts' between the defendant and the forum State. The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” (Citation omitted.) 
Contrary to the suggestion of Justice POWELL, … our holding today does not alter the requirement that there be “minimum contacts” between the nonresident defendant and the forum State. Rather, our holding deals with how the facts needed to show those “minimum contacts” can be established when a defendant fails to comply with court-ordered discovery. The restriction on state sovereign power described in World-Wide Volkswagen Corp., however, must be seen as ultimately a function of the individual liberty interest preserved by the Due Process Clause. That Clause is the only source of the personal jurisdiction requirement and the Clause itself makes no mention of federalism concerns. Furthermore, if the federalism concept operated as an independent restriction on the sovereign power of the court, it would not be possible to waive the personal jurisdiction requirement: Individual actions cannot change the powers of sovereignty, although the individual can subject himself to powers from which he may otherwise be protected.”

Justice Powell, while concurring in the outcome, wrote separately to note his concern with the majority’s interpretation of the requirements of personal jurisdiction: “By eschewing reliance on the concept of minimum contacts as a “sovereign” limitation on the power of States—for, again, it is the State's long-arm statute that is invoked to obtain personal jurisdiction in the District Court—the Court today effects a potentially substantial change of law. For the first time it defines personal jurisdiction solely by reference to abstract notions of fair play.”

Plaintiff’s “Minimum Contacts”?: Keeton v. Hustler Magazine, Inc.

Must a plaintiff have certain “minimum contacts” with the forum in which a suit is brought for the exercise of personal jurisdiction to be proper? The Court unanimously answered that question in the negative in Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984).

In Keeton, New York resident Kathy Keeton brought a suit against Hustler Magazine in New Hampshire alleging libel. Although Keeton had minimal personal links to New Hampshire, it was the only state in which her libel claims were not time-barred. The District Court for the District of New Hampshire dismissed the case for lack of personal jurisdiction and the Court of Appeals for the First Circuit affirmed, explaining “the New Hampshire tail is too small to way so large an out-of-state dog.” The Supreme Court unanimously reversed finding no Due Process requirement that plaintiffs have “minimum contacts” with the forum state and further finding that the fact that the statute of limitations had run in all other jurisdictions was irrelevant to the personal jurisdiction analysis. 

The Court summarized the parties’ links to New Hampshire as follows: “Petitioner Keeton is a resident of New York. Her only connection with New Hampshire is the circulation there of copies of a magazine that she assists in producing. The magazine bears petitioner's name in several places crediting her with editorial and other work. Respondent Hustler Magazine, Inc., is an Ohio corporation, with its principal place of business in California. Respondent's contacts with New Hampshire consist of the sale of some 10 to 15,000 copies of Hustler magazine in that State each month.”

The Court found these actions by Hustler unquestionably sufficient to subject it to personal jurisdiction in New Hampshire on the facts alleged: “Such regular monthly sales of thousands of magazines cannot by any stretch of the imagination be characterized as random, isolated, or fortuitous. It is, therefore, unquestionable that New Hampshire jurisdiction over a complaint based on those contacts would ordinarily satisfy the requirement of the Due Process Clause that a State's assertion of personal jurisdiction over a nonresident defendant be predicated on “minimum contacts” between the defendant and the State.” Because New Hampshire’s long-arm statute was co-extensive with the Due Process Clause, the Court found “all the prerequisites for personal jurisdiction over Hustler Magazine, Inc., in New Hampshire are present.”

As for the concern about the plaintiff’s minimum contacts, the Court explained that the proper inquiry is, per Shaffer, on “the relationship among the defendant, the forum, and the litigation,” later elaborating: “[W]e have not to date required a plaintiff to have “minimum contacts” with the forum State before permitting that State to assert personal jurisdiction over a nonresident defendant. On the contrary, we have upheld the assertion of jurisdiction where such contacts were entirely lacking.”

Hustler’s protests that Keeton’s forum-shopping was unfair given New Hampshire’s especially long statute of limitations on libel were equally unavailing – at least as to the issue of personal jurisdiction. The Court was clear that “any potential unfairness in applying New Hampshire's statute of limitations to all aspects of this nationwide suit has nothing to do with the jurisdiction of the Court to adjudicate the claims.”

Ashkan Soltani

The policies and common practices guiding online advertising put Internet users in a tough spot when deciding how to protect their privacy. The technical underpinnings of our digital interactions are so complex that the average Internet user doesn’t have the know-how to build their own tools to browse the web, much less to interact securely and privately online. Instead, consumers rely on “free” platforms built by software companies to communicate and browse the Internet. In exchange for free services, consumers often allow these companies to track their activities and target advertising. Meaningful regulatory structure protecting users from online tracking abuses is also lacking; in fact, we even lack a clear sense of what it would mean to take advantage of a user of a free service. Currently, users must choose between accepting the options provided by these platforms and trying to independently navigate a complicated web of privacy tools and techniques. This decision is complicated by the fact that some of the do-it-yourself privacy protection measures available to consumers might put them at risk of violating arcane laws. The current policy landscape governing online tracking is woefully out of date and sometimes protects companies at the expense of consumer choice. As a result of the inconsistencies in this environment, users face a difficult puzzle when they attempt to protect their privacy.

The business model financing technology companies determines the privacy choices users are given. In the case of most platforms (browsers, social networks, phones, etc.) the model is built on monetizing consumers’ data to deliver advertisements. As such, the defaults are typically set to encourage users to share information as broadly as possible to enable better targeting and measurement. While most of these companies offer users a selection of privacy settings, these are also designed with the company’s bottom line in mind. This is a predictable outcome of the powerful incentive to maximize the value of user data by running complicated data mining algorithms that rely on large datasets. A selection of privacy settings can make users feel like they are in control, but these options are limited. This, combined with our knowledge that consumers rarely adjust the default settings, means that a few companies have implicit control over a majority of individual users’ privacy settings.

There is no guarantee that companies will respect a user’s stated preference to not be tracked, and users often lack the tools to confirm whether or not their preferences are recognized. Additionally, the companies responsible for much of this tracking are increasingly successful at circumventing blocking tools. Even if they may not undermine their own privacy setting options, they are not particularly inclined to adhere to preferences that are expressed through other vendors’ software. My research has documented numerous cases of companies repeatedly circumventing the privacy settings developed by other companies that users utilize to protect their privacy. It is important to note that this kind of circumvention can violate regulations, and the Federal Trade Commission (FTC) has successfully held companies accountable for circumventing settings. So if a user (or researcher) notices a violation of this nature, there is an opportunity to rectify the situation. However, again, this depends on users being able to observe the infraction, which is far from guaranteed.

Particularly ambitious users can try to work around the sanctioned choices, but there are pitfalls here as well. There are some tools and techniques to mask online movements that a consumer could cobble together in order to make it more difficult to track their online behavior. However, some these could be interpreted as violating the law. In particular, the Computer Fraud and Abuse Act (CFAA) poses a problem for innovations in privacy protection. The crux of a CFAA violation hinges on whether or not an action allows a user to gain “access without authorization” or “exceed authorized access” to a computer. In some cases, commonplace behaviors like managing cookies, changing browser headers, using VPNs, and even protecting one’s mobile phone from being identified could be construed as an attempt to exceed authorized access to content. For example, clearing cookies is a commonly prescribed method to protect privacy (by limiting the ability for advertisers to uniquely identify a given user); however, by periodically clearing cookies—or using a browser’s private browsing mode—users can easily bypass publishers’ paywalls (e.g., the ten-articles-a-month limit at the New York Times). Under an unsophisticated judge’s review, this could be interpreted as exceeding authorized access and is therefore a potentially prosecutable violation of the CFAA. This means that, by attempting to protect his privacy from one company, a user might “exceed authorized access” elsewhere (clearing your cookies to prevent Google from developing a profile could violate the NYT paywall).

This combination of circumstances severely limits users’ choices to limit online tracking and protect their privacy. Most users stick with the business-supporting defaults set by the company and even those who deviate are still choosing among options designed to support a business model based on monetizing tracking. The ambitious users who step outside these pre-approved choices have to invest a great deal of time investigating privacy-protecting strategies and, even when they succeed in protecting themselves, may find themselves on the wrong side of the law. All of these factors make it hard to envision a way for the average Internet user to find a reasonable and effective way to protect his privacy.

Number of new websites created per minute in 2013: 571.

Number of new domains registered: 70.

Number of photos posted to Tumblr: 20,000.

Number of new tweets: 278,000.

Of the top 100 most followed accounts on Twitter, the number that are musicians: 54.

Number that are tech companies: 7.

Number that are television show hosts: 7.

Number that are Brazilian soccer players: 3.

Number that are Kardashians: 3.

Number that are affiliated with One Direction: 6.

(Number of musicians in One Direction: 5.)

Speed reached by Li-Fi, a Wi-Fi alternative that transmits data by rapidly switching tiny light bulbs on and off: 10 Gbit/second.

Percentage of current Iranian cabinet members who maintain Facebook pages, despite the country’s Facebook ban: 100.

Percentage by which traffic to adult entertainment website PornHub decreased in Chicago after the Chicago Blackhawks won the final game of the Stanley Cup: 19.

Percentage by which it increased in Boston, home of the Bruins (who, sadly, lost): 21.

Actors whose fan websites were defaced in the last year by Syrian Electronic Army hackers: Johnny Depp, Ben Affleck, Brad Pitt.

Among the terms censored on Chinese microblogging platform Sina Weibo this year: “hair bacon.”

Number of copyright takedown requests Google received per second in September 2011: 0.29.

In September 2013: 8.76.

Size of English-language Wikipedia, in printed volumes, as of late 2013: 1930.

Of French-language Wikipedia: 469.

Vietnamese: 342.

Romanian: 40.

Sources

“What happens online in 60 seconds?,” Qmee, July 24, 2013, http://blog.qmee.com/qmee-online-in-60-seconds/.

“Twitter top 100: most followers,” Twitter Counter, http://twittercounter.com/pages/100 (accessed October 29, 2013).

James Vincent, “Li-Fi revolution: internet connections using light bulbs are 250 times faster than broadband,” The Independent, October 28, 2013, http://www.independent.co.uk/news/science/lifi-revolution-internet-connections-using-light-bulbs-are-250-times-faster-than-broadband-8909320.html.

Robert Tait, “Hassan Rouhani's cabinet open Facebook accounts,” The Telegraph, September 9, 2013, http://www.telegraph.co.uk/news/worldnews/middleeast/iran/10296861/Hassan-Rouhanis-cabinet-open-Facebook-accounts.html.

Brian Stubits, “Chart: Boston turns to porn after Game 6 loss in Stanley Cup Final,” CBSSports, June 25, 2013, http://www.cbssports.com/nhl/eye-on-hockey/22524719/study-boston-turns-to-porn-after-game-6-loss-in-stanley-cup-final.

Jason Q. Ng., Blocked on Weibo: What Gets Suppressed on China’s Version of Twitter (And Why), (New York City: The New Press, 2013).

AFP, “China employs 2 million analysts to monitor web activity,” RT, October 6, 2013, http://rt.com/news/china-internet-opinion-analysts-788/.

Google Transparency Report, “Requests to Remove Content: Due to copyright,” http://www.google.com/transparencyreport/removals/copyright/?hl=en.

“Wikipedia: size in volumes,” http://en.wikipedia.org/wiki/Wikipedia:Size_in_volumes.

“Modèle:Wikipédia sur papier,” http://fr.wikipedia.org/wiki/Modèle:Wikipédia_sur_papier.

“Thành viên: Mxn/Tủ sách,” http://http://vi.wikipedia.org/wiki/Thành_viên:Mxn/Tủ_sách.

“Utilizator: Strainu/biblioteca,” http://ro.wikipedia.org/wiki/Utilizator:Strainu/biblioteca.

[Eurocompatibility as legal agrument - ways and possibilities of a swiss adaption to the new dynamics of European Integration]

a) Background

The article at hand was published in 1989 as a contribution to the Festschrift für Dietrich Schindler Jun, on the occasion of his seventy-fifth birthday, Daniel Thürer was the successor to the chair of Professor Dietrich Schindler Jun at the University of Zurich. Schindler Jun is an eminent constitutional and international public lawyer, who authoured important opinions for the Swiss government on crucial issues of the fate of Switzerland in the international legal community. Thürer's article was written at an important crossroad of Swiss integration policy when Switzerland, in matters of European integration, started and accepted the inevitability and the priority of the relationship of Switzerland to the European Union in its foreign policy. The text raises arguments in a historic, political and societal context rooted in jurisprudential and philosophical considerations.

Daniel Thürer is an emerite professor (2010) of international law, European law and comparative constitutional law at the University of Zurich. He is a leading analyst and commentator of the developments in the legal relationship of the EU law and Swiss law. In the summer of 2011, he was mandated by the Swiss Federal Counsel to write a legal opinion on the opportunities and limitations of a further coordination and harmonization of Swiss law with EU or in connection with the next and crucial round of negotiations with the EU.

b) Summary

The text at hand addresses the avenues and possibilities of adapting Swiss law to the new dynamics of integration of the European Union, then the European community. The time of publication was marked by a re-launch of European integration increasingly marked by lowering trade barriers in the intra EU-trade to realise the single market as well as a further cooperation and integration of governmental activities. At the time of Thürer's new evaluation, the process of integration of the European Community proved a certain institutional instability after having gone through three extensions of memberships, a dynamic drive for completion of the internal market based upon the Single European Act of 1984 and generally achieved political, societal and economic success. The EU had become the strongest player in world trade and commerce. The text squarely addresses the challenges of European integration for Switzerland. The text consciously applies a broader perspective and includes existing links of the Free Trade Treaty based on EFTA to the European communities and the special Free Trade Agreement between Switzerland and the EC, as specific examples of being within any definition of "European" and of "integration."

The text basically analyses the relevance and applicability of a so-called "Euro-compatibility" principle as a basic principle of Swiss policy towards integration. The Free Trade Treaty of 1972 seems to run counter an application of a dynamic application. The more crucial question on the direct applicability of the Free Trade Treaty is answered in the negative based upon existing case law. In Thürer's opinion, rather, the development towards the teleology of a "dynamic economic space" could lend itself as a credible basis for the argument of a general use of the argument of "Euro-compatibility" in Switzerland.

Switzerland should accept the principle of "Europafreudlichkeit" (Europe-friendliness) as a controlling and creative guiding principle. Switzerland as non-member-state retains its undivided sovereignty to legislate and as a non-member of the EU is in no way subordinated to European Community law. Therefore European Community law is not a formal source of law, but a creative and effective factor of orientation and inspiration. According to Thürer, it would be a great mistake to underestimate its dynamic potential as a guiding principle in Swiss Law.

c) Text

You can find a scan (PDF) of the original text here:
E_2.15_THURER_Europaverträglichkeit_Rechstargument

[The so-called „Euro-compatibility": Principle of formation of law out of embarrassment or a vehicle for a silent revolution of Swiss law?]

a) Background

The text at hand is a short editorial, which appeared in the Zeitschrift für Schweizerisches Recht (Journal of Swiss Law), the leading Law Journal in Switzerland, of which Daniel Thürer is a co-editor. The point in time of publication is roughly two years after the rejection by the Swiss people and the Swiss cantons regarding the accession of the EEA-Treaty with the EU. At that time it was unclear if the vote would go down in history as an episode or an epoch-breaking event.

Daniel Thürer is an emerite professor (2010) of international law, European law and comparative constitutional law at the University of Zurich. He is a leading analyst and commentator of the developments in the legal relationship of the EU law and Swiss law. In the summer of 2011, he was mandated by the Swiss Federal Counsel to write a legal opinion on the opportunities and limitations of a further coordination and harmonization of Swiss law with EU or in connection with the next and crucial round of negotiations with the EU.

b) Summary

The line of argument starts with the statement that regardless of the historic dimension of the popular vote on the accession to the EEA Agreement, it should not and cannot be overlooked that the principle of so called "Euro-compatibility" may lead to a silent reorientation and reorganisation of the Swiss legal system.

The decision of the Federal Council and of parliament to at least structurally adapt Swiss law to EU-law in the implementation of further legislative, administrative and judicial acts and in further negotiations of bilateral treaties will show a dynamic of its own and have a pull effect to bring about and speed up the process of harmonization of law between the two legal systems. Acts of adaptation and reception of EU-Law will produce effects of impulse and resonance beyond the realm of positive law in the receiving legal system.

According to Thürer, it is illusionary and misleading to follow the standard opinion that national acts of adaptation of law will only be brought about by a formal international treaty or by a formal and binding national legislative act. Such an opinion overlooks that the further development of law not only lies in the hands of the legislature and the organs negotiating international treaties, but in the hands of a plurality of actors participating in the process of further development of law. Why should these actors not take into consideration European law developments as a source of inspiration and as a relevant legal argument? Faced with the choice of a variety of legal arguments, should EU law not have a quality of preference or a quality of a model and prevail over less European friendly arguments? Why should the comparative law considerations within the EU not become a pillar and a determining factor as a principle of law generation in Switzerland?

Law always has emerged under circumstances in which - consciously or unconsciously - the reception of foreign law and foreign legal thought has and is an influencing and determining reality. This has particularly been the case with respect to the Swiss legal system. Further, the dramatic changes following the introduction of the principle of mutual recognition within the EU have to be taken into account. It appears that this variety of forms of legal developments leads - at least in the economic sphere - to an emergence of a new "jus commune" in Europe. In this process of flexible adaptation and harmonization a third nation may join. This will be a particular task of the courts to do so and to become active in that context. This inductive and autonomous legal harmonization of law towards "a common European economic law" will, according to Thürer, considerably cut the rough edges of the negative vote that took place on the 6th and 7th December 1992.

c) Text

You can find a scan (PDF) of the original text here:
E_2.16_THURER_Kolumne Europaverträglichkeit_Prinzip

[European Integration: Challange of a changing legal culture]

a) Background

The text appeared in 1999 in the Jounral for European Law (Zeitschrift für Europarecht). The time of publication was after the introduction of the Euro and the coming into effect of the Amsterdam Treaty which was of particular relevance to Switzerland. The text addresses the potential development of EU-law and EU-institutions and attempts to find a tentative answer to the meaning of European integration also in its general relevance for Switzerland.

Daniel Thürer is an emerite professor (2010) of international law, European law and comparative constitutional law at the University of Zurich. He is a leading analyst and commentator of the developments in the legal relationship of the EU law and Swiss law. In the summer of 2011, he was mandated by the Swiss Federal Counsel to write a legal opinion on the opportunities and limitations of a further coordination and harmonization of Swiss law with EU or in connection with the next and crucial round of negotiations with the EU.

b) Summary

Daniel Thürer argues that European integration is an antithesis (Gegenbild) to the Weberian system of nation states. It was formed defensively out of the vacuum of power following World War II and is based upon endogenous factors of a changing legal culture. European institutions and legal processes of integration were no longer creations of power and force. The expressions of a new and constantly changing self-consciousness of the modern community of law are part of a new modern culture of law. The societal changes increasingly bring the individual to the foreground. These changes in ideas, attitudes, values and conceptions about law bring about a change of legal culture by enhancing the role of the rule of law. "The modern world is a world of freedom and the plan of law; this is inevitable in so intractable a society" (Lawrence Friedmann). Besides and beyond America, western civilization in Europe fosters the fundamental idea that individuals deem unjust and unacceptable discriminations in their exercise of elementary rights, which are beyond their control. Freedom and fundamental rights should be guaranteed irrespective of their nationalities. Institutional structures should be created, which are congruent and commensurate to tasks to be solved. In many cases this strife transcends the legal framework of nation states. This individual-centred view, according to Thürer among others, has its roots in the thinking of Leon Duguit, a prominent predecessor of Jean Monnet's concept of the "Pouvoir public," which has as a starting point the individual and not the state. One should get accustomed to view the institutions of the European integration not from the perspective of supranational aspirations for unity in Europe; it should be viewed as a conditioned and predominately natural, historical process.

The processes of European integration bring forward the challenges to form new cross-border legal forms and institutions, which are based on the traditional system of states and the national borders and which do not disrespect or destroy the historically grown communities, political systems and cultural forms of life. These processes are the natural answers. A principle of Victorian attitude should take place. The developments should not instil fear rather they should be open to active participation in the process of their construction and extension. The major issues to be tackled in the further developments of the European order according to Thürer are the supranational control of economic power, the opportunities of the new information technology and the federalisation and the determination of a new order.

c) Text

You can find a scan (PDF) of the original text here:
E_2.17_THURER_Europaeische Integration

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.

c) Text

You can find a scan (PDF) of the original text here:
E_2.18_BAUDENBACHER_Effects

Słuchajce tej historii - podjęłam nierówną walkę z systemem. Rok temu zamówiłam kurtkę w sklepie 66 procent, ale nie otrzymałam ani towaru, ani zwrotu pieniędzy. Zgłosiłam to na policję, ale nic z tego. Muszę chyba skorzystać z pomocy adwokata, bo policja nic z tą sprawą nie zrobi. Ministerstwo finansów e deklaracje przyjmuje, więc się nie czepiam, ale chce moje pieniądze spowrotem! 

[ introduction and synthesis to a series of articles on eurocompatibility of Swiss economic law ]

a) Background

In the Anthology the reader finds a history of more than 20 years of selective writing by Swiss lawyers on the principle of Eurocompatibilty. After Daniel Thürers text 2.15 of 1989 muted his general idea of "Euro-friendliness", is Euro-compatibility nowadays an established principle of creation of law and the Swiss government. The multifaceted developments of the past 25 years reached a point of maturity, which allowed a more systematic and in-depth account to take place regarding legal reality of Europeanization in Swiss law and Swiss legal culture. Thomas Cottier and his researchers affiliated with the World Trade Institute at the University of Berne were at various stages the frontrunners of this evolution. The text at hand is testament to those research efforts.
The text is an introduction to a study The Eurocompatibilty of Swiss Economic Law: Convergence and Divergence, which is largely based on Phd-thesis supported by the Swiss National Fund of Research. The text appeared in the library of the Swiss Law Review (Bibliothek zur Zeitschrift für Schweizerisches Recht) in 2012. The text is an introduction and synthesis and mainly refers in summaries to these case studies on aspects of the Cassis de Dijon-principle, value added tax and antitrust law. The texts contain rare in-depth analysis of issues of effects of European law and Swiss law under the Principle of Euro-compatibility; Included in the publications are Matthias Oesch, Die Europäisierung des Schweizerischen Rechts (see text 2.19); Emilie Kohler, Le droit européen à l'aide de l'interprétation du droit Suisse; David Herren, Das Cassis de Dijon-Prinzip im schweizerischen Recht: Gemeinsamkeiten und Divergenzen zum EU-Recht; Ralf Imstepf, Der europarechtliche Einfluss auf das schweizerische Mehrwertsteuerrecht and Monique Sturny, Der Einfluss des europäischen Kartellrechts auf das schweizerische Kartellrecht.
The text at hand therefore is a summary of summaries which contains notable considerations on the role of the development from general comparative law to special Eurocompatibilty law in the past 20 years.

Thomas Cottier is a full professor of European and international economic public law at the University of Bern, and is the director of the World Trade Institue. Cottier has an international academic education at the Universities of Cambridge (United Kingdom and Michigan at Ann Arbor (United States). He has experience in legal practice in the function of Deputy Head of the Swiss Office of Intellectual Property ans as a negotiator for Switzerland in the GATT- and WTO process. As an international scholar he is part of a small group of leading specialists in international economic law in the world.
Rachel Liechti, born on 10 September 1956 in India, living in Switzerland since 1970, studied law at the University of Berne and graduated in 2001. She has been a Senior Research Fellow and Deputy of professor Thomas Cottier, Director of the Institute for European and International Economic Law, University of Berne since 2008. Prior to taking up her current position, she worked at the same Institute as an assistant from 2002-2007. During her employment at the Institute she has, inter alia, been doing research on European Law and its influence on Swiss law, and has co-authored and co-edited various publications together with Thomas Cottier on the subject.

b) Summary

The text seeks to incite the curiosity of  law students in Swiss law by looking at its effects and influences in the past outside of Switzerland. It argues, that in times of notorious insecurities about one's own identity, law as an eminent social cultural phenomenon should be recalled into reality and lead to a more affirmative attitude of the students, teachers and practitioners towards law and legal culture in Switzerland. The influence of Swiss law outside of Switzerland is primarily analyzed from a private law perspective and explained by the almost literal adoption of the codification of Swiss civil law by the Republic of Turkey in 1926. It is an interesting fact, that the law of a country, which at the time of formation of the codification had 3.5 million inhabitants, should govern the private relationships of a country, which at that time already had 60 million of inhabitants. From a dynamic perspective the growth of the population and the increasing influence of Turkey well beyond its borders, this influence could reach according to Pierre Tercier 125 million people today.

Tercier also looks at the international influences of penal law, bankruptcy law and above all constitutional law and finally business law, which have traveled far beyond the Swiss borders. The text states some specificities of Swiss law which might be at the source of this travel, migration and export of law such as the fact, that the law is simple, its language is direct, and that Swiss law is open and broad in its wording.  The text addresses issues of quality of Swiss law. It notes the multinationality and multiculturality of the law and its important links to European traditions and raises the question, if the success of Swiss law outside of its border has anything to do with its privileged position of Switzerland in the history of the past centuries. Pierre Tercier notes the decrease of this influence of Swiss law abroad and advocates that it is an eminent task of universities to open the eyes of students to the internationalization of law and legal work and to give them confidence in grasping these phenomena. According to Tercier, law is a hidden sociopolitical treasure the potential of which is often underestimated.

c) Text

You can find a scan (PDF) of the original text here:
E_2.20_LIECHTI-COTTIER_Einleitung und Synthese

[The so-called „Euro-compatibility": Principle of formation of law out of embarrassment or a vehicle for a silent revolution of Swiss law?]

a) Background

The text at hand is a short editorial, which appeared in the Zeitschrift für Schweizerisches Recht (Journal of Swiss Law), the leading Law Journal in Switzerland, of which Daniel Thürer is a co-editor. The point in time of publication is roughly two years after the rejection by the Swiss people and the Swiss cantons regarding the accession of the EEA-Treaty with the EU. At that time it was unclear if the vote would go down in history as an episode or an epoch-breaking event.

Daniel Thürer is an emerite professor (2010) of international law, European law and comparative constitutional law at the University of Zurich. He is a leading analyst and commentator of the developments in the legal relationship of the EU law and Swiss law. In the summer of 2011, he was mandated by the Swiss Federal Counsel to write a legal opinion on the opportunities and limitations of a further coordination and harmonization of Swiss law with EU or in connection with the next and crucial round of negotiations with the EU.

b) Summary

The line of argument starts with the statement that regardless of the historic dimension of the popular vote on the accession to the EEA Agreement, it should not and cannot be overlooked that the principle of so called "Euro-compatibility" may lead to a silent reorientation and reorganisation of the Swiss legal system.

The decision of the Federal Council and of parliament to at least structurally adapt Swiss law to EU-law in the implementation of further legislative, administrative and judicial acts and in further negotiations of bilateral treaties will show a dynamic of its own and have a pull effect to bring about and speed up the process of harmonization of law between the two legal systems. Acts of adaptation and reception of EU-Law will produce effects of impulse and resonance beyond the realm of positive law in the receiving legal system.

According to Thürer, it is illusionary and misleading to follow the standard opinion that national acts of adaptation of law will only be brought about by a formal international treaty or by a formal and binding national legislative act. Such an opinion overlooks that the further development of law not only lies in the hands of the legislature and the organs negotiating international treaties, but in the hands of a plurality of actors participating in the process of further development of law. Why should these actors not take into consideration European law developments as a source of inspiration and as a relevant legal argument? Faced with the choice of a variety of legal arguments, should EU law not have a quality of preference or a quality of a model and prevail over less European friendly arguments? Why should the comparative law considerations within the EU not become a pillar and a determining factor as a principle of law generation in Switzerland?

Law always has emerged under circumstances in which - consciously or unconsciously - the reception of foreign law and foreign legal thought has and is an influencing and determining reality. This has particularly been the case with respect to the Swiss legal system. Further, the dramatic changes following the introduction of the principle of mutual recognition within the EU have to be taken into account. It appears that this variety of forms of legal developments leads - at least in the economic sphere - to an emergence of a new "jus commune" in Europe. In this process of flexible adaptation and harmonization a third nation may join. This will be a particular task of the courts to do so and to become active in that context. This inductive and autonomous legal harmonization of law towards "a common European economic law" will, according to Thürer, considerably cut the rough edges of the negative vote that took place on the 6th and 7th December 1992.

c) Text

You can find a scan (PDF) of the original text here:
E_2.16_THURER_Kolumne Europaverträglichkeit_Prinzip

[The judge facing European law, from a Swiss and European perspective]

a) Background

The text at hand is an introduction to a book, Le Juge national face au droit européen, Perspective Suisse et Communautaire. Olivier Jacot-Guillarmod uses a broad view as to what European law is; he pleads for the unity of European law. He advises Swiss lawyers not to limit their interests to EU law, but to include the Council of Europe; The European Convention on Human Rights; the treaty on EFTA area of free trade and various bilateral agreements with later member states of the EU such as Hungary, Poland and Czechoslovakia.

The book was a wakeup call following the negative vote of December 1992 on the accession to the EEA-agreement in 1992 under the motto after Denis de Rougemont  "Les Suisses se lèvent tôt, mais se réveillent tard” (Swiss get up early but wake up late). It offers then the most extensive analysis of the case law of Swiss courts and the European Court of Justice relating to Swiss EU relations and beyond. Jacot-Guillarmot uses a personalistic approach and writes about Swiss judges as legal actors in Switzerland's situation vis-à-vis the European Union, as well about the key complementary role of the attorneys, with a focus on the public role of those key legal professionals in the process of Europeanization.

Judges and attorneys are legal actors whose functions have an institutional nature and go beyond simply applying legal provisions. These functions cannot be understood without an understanding of the professional cultures; the specific roles of the judges in a national concept of separation of power; the specific organisation of the concept of separation of powers and the role of the judiciary; the potential closeness of the activities of the judges to the political process as well as issues of psychology of the activity of the judges. Jacot-Guillarmot's text shows that an analysis beyond simply focusing on strictly legal aspects is necessary and requires the taking into account of other factors of national legal cultures. The text is an early example of the use of a personalistic conception to describe and understand the legal processes of internationalization, such as Europeanization.

Olivier Jacquot-Guillarmod was an emiment international lawyer in Switzerland who sadly died at the age of fifty one. He wrote a seminal doctoral thesis in 1979, "Droit communautaire et droit international public," had an international education in Europe and in the United States and held an important function at the Federal Office of Justice, responsible for international affairs. At the same time, he was teaching at the University of Neuchâtel and represented Switzerland form 1981 to 1995 as agent of the Swiss Government in front of the Commission and the Court of Human Rights in Strasbourg. Jacot-Guillarmod frequently organised conferences and was writing and publishing texts. From 1995 to 2001, he was an elected Justice at the Federal Tribune in Lausanne..

b) Summary

In the first part of the text, Olivier Jacot-Guillarmod addresses the function of the judge vis-à-vis European integration. Swiss people having only shown discrete enthusiasm vis-à-vis the European integration, in spite of the fact that it all took place in front of its doors and that Switzerland is a direct beneficiary of the dynamics of peace resulting from European integration. The formidable opening on the part of the Federal Council, the cantonal governments, the Federal parliaments and the Federal and cantonal administration of a visionary approach to the EU discontinued, in particular after the vote of the 6th December 1992. Switzerland could breathe again and go back to its long "someille du juste." Jacot-Guillarmot notes, that the judge was the great absentee in the debate on the EEA agreement, since he was not a negotiator, a parliamentarian or a politician. According to the author, it is high time for a first sketch of what the Swiss judge may expect in the next ten years faced with the dynamics of European integration. The course of the legal reality of the European integration and of the European Convention on Human Rights developed, contrary to traditional expectations in Switzerland.

In the member states it was the old and traditional activity of the national judges that brought EU law to life. While the national judge deals with the matters brought before him, the attorney, the representative of the interests of his clients, has an equally key role in the processes of European integration. At that time, there only existed a small number of specialists in European law working as attorneys in Switzerland, as "practician communautaire". He notes a considerable discrepancy of knowledge at the time, when the text was written, between Swiss and Brussels based EC law specialists. Jacot-Guillarmod argues, that the attorney should be able to bring to the table commensurate knowledge and experience in matters of European integration. In this sense, Jacot-Guillarmod's introduction to his book is the wake-up call that, in any country - whatever the relationship it has to the European Union - the legal substance and the life of the law is  marked by judges and the attorneys, who are the key actors and have an institutional and public function in this process of realization of law.

c) Text

You can find a scan (PDF) of the original text here:
E_2.22_GUILLARMOD_Le Juge Suisse

a) Background

From the perspective of an efficient application and enforcement of law in the relationship between Switzerland and the European Union as well as other institutions of greater Europe, the specific legal acts of applying and enforcing such law are the strong currency. We include in this collection one court decision of the Federal Tribunal showing the reasoning and the attitude of the Federal Tribunals vis-à-vis the role of the EU law in its activities. Various texts in this chapter of the collection deal with the issues of the role of the judges and the attorneys, specifically taking into account EU law as described in Jacot-Guillarmod's introduction; Thürer's opinion for the Federal Council states the full list of the relevant decisions of the European Court of Justice; and by Swiss courts relevant to Swiss-EU legal relationship; The letter of the Federal Tribunal to the Federal Council states the basic principles to bring about a unified and coherent interpretation and application and declares that this is in the interest of Switzerland.

Although the same provisions of the bilateral agreements cover a far larger territory and population, it has been established for years that the Federal Tribunal follows in as much as possible the interpretation of the European Court of Justice. The Federal Tribunal's theory of autonomous adoption creates a parallel legal situation to the one in the EU. It, thereby, takes into account later changes of jurisprudence of the European Court of Justice. If the European Court of Justice has not dealt with a legal issue, the Federal Tribunal decides the legal issue on its own as a last instance. If the European Court of Justice at a later point in time decides otherwise, the Federal Tribunal revisits its jurisprudence in the matter. The Federal Tribunal moreover can take into account new European law in as far as it is within the European interpretation of the existing treaty. The text by Thomas Probst gives an overview of the challenges in practice and in legal science in the area of private law. Matthias Oesch's text,  contains a full overview of all court decisions in Switzerland.

b) Summary

The Judgment of the Federal Tribunal at hand had to deal with the question of whether article 333 para III of the Swiss Code of Obligation, in case of bankruptcy, is applicable. Art. 333, as part of the process of "autonomous adaption," was adapted in 1993 to directive 77/187. The Federal Tribunal takes respective community law into account in its interpretation of Art. 333. The Federal Tribunal considers controlling not only the state of the community law at the time of the adaptation of Swiss law but also takes into account the developments of community law in the meantime.

The case deals with the following factual situation: on the 29th June 2000, bankruptcy decree was issued against the owner of the individual firm X. The firm Y, a company limited by law, which had been founded on the 26th May 2000 had taken over the inventory of the individual firm out of the bankruptcy estate in order to continue the business operation. The inventory was first leased by firm X and then bought shortly thereafter. The business operation stood still for one day. Die Arbeitslosenkasse of the Canton Solothurn in the context of the bankruptcy paid to the individual firm X solvency and social security amounts and at the same time brought an action against the firm Y to the Federal Tribunal for the payment of the same amounts including interest. The Arbeitslosenkasse argued that according to Art. 333 para. 3, the company taking over the inventory is jointly liable for said amounts; this also being the case if the inventory is passed over after the bankruptcy decree has been issued.

In consideration 6 of the judgement, the Federal Tribunal came to the conclusion that this is not the case. They interpreted Art. 333 para 3 as adapted to a EU directive and a later amendment of the adapted directive, not providing for the joint liability of the buyer of the inventory, if the inventory has been bought after bankruptcy decree had been issued.

c) Text

You can find a scan (PDF) of the original text here:
E_2.23_BGE 129 III 335 Judgement of 25th March

[The case law of the European Court of Justice as new challange for legal practice and the science in Swiss private law]

a) Background

The text at hand focuses on the specific issues of private law and on the challenges brought about by the case law of the European Court of Justice to courts, legal science and legal practice in Swiss private law. The opinions of the author have been confirmed by more recent decisions of the Swiss Federal Tribunal.

Thomas Probst is Professor for Private and Comparative Law at the University of Fribourg, Switzerland. The article was published in 2004 in the Basler Juristische Mitteilung, which is the widely respected publication organ of the Lawyers Association of the Canton of Basel.

b) Summary

In a contextual remark, the author begins his observations on the evolution of the changing notion of "European law" from a Swiss perspective. The development can be characterized as a development from "public European law to private European law." In the first phase, the notion "European law" was institutionally linked to the Council of Europe and the European Convention on Human Rights; the second phase – partially parallel - focused on the ECSC and the EEC-Treaties, in particular on the institutions, the legislative and law enforcement process and the basic rights. Consequently "European law" was predominantly qualified as international public law. In the third phase, after the negative vote of the Swiss people against the EEA-Agreement, the planned Eurolex legislation, and the successful ensuing Swiss Lex Legislation, private law was brought to the centre of interest.

The major factors of the influence of EU law on Swiss Law are by way of "Autonomen Nachvollzug"  (autonomous adaptation) of EU-directives by the Swiss legislator; the decisions of the European Court of Justice; and the influence in the trans-European legal science.

The article analyses the consequences and the significance of the decisions of the European Court of Justice for the Federal Tribunal. The Federal Tribunal applies the following major arguments in its holdings regarding the influence of the law of the European Court of Justice: autonomously applied national law is to be applied in a "Euro-compatible" way. "Euro-compatibility," as a guiding principle of interpretation, is a dynamic goal which implies the autonomous interpretation of national law to be "objective" and pertaining to the "present times (Geltungszeitlich). The article analyses the systematic significance of the EU court decisions on the international treaty based unified law; the harmonization of law, in which the Swiss legislator has autonomously followed community law; and the area of non-harmonized law.

Probst first analyses the Vienna unified Law on Sales, the Lugano-Convention and the Free-Trade-Treaty between Switzerland and EU. Where the legislator regularly does not address explicitly the situation as to the effects of judgments of the European Court of Justice, it is open to the discretion of the courts applying the general rules and methodology. In the core of non-harmonized national law, the interpretation by the legislator and the courts are by and large independent and autonomous. Based upon the tradition and the practice, national courts may take foreign law into account. The Federal Tribunal has a history of openness and independence concerning foreign law and has often used foreign law as a very productive source in the interpretation of national law.
The article gives an overview of the methodological rules in dubio pro interpretatione europea of treaty based unitary law, autonomously applied European Community law and of non-harmonized national law. The article evaluates the options of the Federal Tribunal as regards to the interpretation of Community law, as well as the risks of such court decisions to digress in divesity splitting in Swiss private law and the risk of loss of autonomy in the area of consumer protection. Probst calls for an analysis and a theory to steer the boat of Europeanization between the Scylla of a heteronomously determined Swiss law and the charybdis of an isolation of the Swiss private legal order from EU community law.

[ Towards a european code of contracts ? ]

a) Background

The text at hand appeared in a publication at the occasion of the 125th anniversary of "la Semaine Judicaire", an important law journal in the French speaking part of Switzerland.
In 1957 the principal objective of the founders of the European community was to establish a common market without internal barriers for all sectors of the economy. At that time nobody thought of an effective link between European law and national contract law. More and more, one realized that the existence of national private law could endanger the common market. The European process of harmonisation therefore has adopted a series of directives in private law. A more general intervention so far has been excluded. In the meantime, in connection with the issue of whether the European Union should adopt a European civil law, the idea of unification has appeared on the political scene and is seriously discussed by scientific writers.

Franz Werro has been a Professor of Private Law at the University of Fribourg, Switzerland since 1994. He is also a tenured professor at the Georgetown University Law Center, Washington DC since 2001. He presently is the only Swiss law professor who has chairs on both sides of the Atlantic. He has been a visiting professor at several European universities. He is the Dean of International Studies at the University of Fribourg and a co-director of the "Institut de droit European". He teaches law of contracts, European private law, and comparative products liability, EU law, jurisprudence and comparative private law at Georgetown Law School. He is a member of the board of editors of various law journals and publishes frequently. He is one of the few Swiss lawyers and law professors, who have taken their teaching and research activities "global" and who actively participate in the scientific discourse with and within the European Union beyond Swiss borders.

b) Summary

The text at hand analyses the effects of existing private EU law on Swiss private law of contracts. The text further analyses whether there is an alternative to unification by means of directives going on to describe the directives and their effects. It further analyses some critical court cases of the European Court of Justice and highlights the effects of this jurisprudence on the Swiss law of contracts. In assessing these developments, Werro points to the practical difficulties and insecurities raised by means of harmonisation through directives despite the fact that the developments are highly interesting from an academic point of view. Werro argues that the use of directives needs to be revisited. A further unification is argued with reference to the history of the coming into existence of the Swiss Code of Obligation and the Uniform Commercial Code in the United States.

In its second part, the text deals with alternatives to the unification of contract law by means of directives. Based upon scientific and political doubts, it has become evident that the functioning of the common market depends not only on economic facts but also on a unified law of contracts. The position has not been shared by the European Court of Justice. The text then analyses the legal competences of the European organs to legislate in matters of private law and describes the actual plan of the Commission of the 12th February 2003. Nobody doubts that there is a link between common market and private law. The question is to know how intense this link is. Even the codifications which came into existence in federal states such as the United States and Switzerland after the establishment of a common market in the nineteenth and twentieth centuries does not give a final proof of this link. Werro's text raises the complex issue regarding the further role of national law in view of a more far-reaching unification of the law of contracts. Switzerland will, for instance, lose its flexible and "neutral" law in international commerce.

c) Text

You can find a scan (PDF) of the original text here:
E_2.25_WERRO_Code Européen

a) Background

The text at hand is the first joint text of Jens Drolshammer and Michael Pfeifer. The article in its present form was written in May 1999. The article originally appeared at the request of Thomas Cottier in a slightly different form in the reader Der Beitritt der Schweiz zur Europäischen Union, L'Adhésion de la Suisse a l'Union Europeenne (the accession of Switzerland to the European Union (edited by Thomas Cottier and Alvin Kopse, 1998, p. 887-924). This pioneering volume was an early attempt to access the effects of a possible full adhesion of Switzerland to the EU on the Swiss legal system. The volume contains a representative cross-section of about forty articles addressing the challenges of a possible full accession of Switzerland to the European Union. The German title of the article was Beitritt zur Europäischen Union als Herausforderung für die schweizerische "International Practice of Law"? - Lagebeurteilung und Thesesn (Is the Accession of Switzerland to the European Union a Challenge for the Swiss "International Practice of Law"? - Appreciation of Facts and Theses). A purpose of the article is to take into account the most recent pan-European developments in the legal profession and to develop an agenda for enhancement of the international competitiveness and compatibility of the international practice of law in the areas of legal systems, legal professions and legal educations. Although legal professionals in post World War II Switzerland have been more influenced and driven by Anglo-Saxon, in particular American developments, it was obvious that possible adhesion of Switzerland to the EU would have serious impacts on international practice of law as well.

The text has to be read in conjunction with the text by Jacot-Guillarmod 2.22, Le juge national face on droit d'Européen, Perspective Swiss et communitaire, which attributes to both judges and practicing attorneys a constitutional and pivotal role in forming the Swiss law and legal culture in the process of Europeanization.

Michael Pfeifer is a senior partner of an international commercial law firm in Basel and Zurich and a lecturer at law at the University of St. Gallen and Basel. He has also practiced internationally for many years. He is one of the few pioneering Swiss attorneys who have regularly dealt with issues of the legal profession.

Drolshammer and Pfeifer have frequently worked together. They edited the book, The Internationalization of the Practice of Law (2001), which is a collection of articles by leading authors from all over the world in practice and academia dealing with the dramatic changes of the practice of law during globalization. The text is the first and major publication result of Drolshammer's research visits at Harvard Law School starting in 1999.

Jens Drolshammer is an emerite (2009) professor of law at the University of St. Gallen and a former founding and senior partner of an international commercial law firm in Zurich. He practiced internationally for many years dealing with issues of globalization. He has worked in that context from 1999 to 2008 seven times in fall term as a visiting research professor at the center for European Law Research at the Law School of Harvard University, developing a new personalistic approach in analyzing the effects of globalization on legal professions, which lead to the publication of twenty essays in A Timely Turn to the Lawyer? - Globalization and the Americanization of Law and Legal Professions - Essays (2009).

b) Summary

The text at hand is a scholarly article that appeared in the Tulane European and Civil Law Forum (1999). It is a rare example of a text by Swiss authors published in an American Law Journal.
The text deals with observable trends in the framework of the international practice of law. It raises the issue of whether Switzerland's experience is relevant for other European jurisdictions. It goes on to establish and argue for the necessity to focus on the International Practice of Law and underpins the observations of the trends by novel aspects of quantification. It addresses as major conditions and trends significant for the topic: the reorganization of the social environment; aspects of mobility, communication and efficiency affecting the economic environment; efforts and obstacles in the international perception and paves the way for a professional environment allowing to form - in sports terminology - a Champion's League of law firms engaging in the international practice of law.

The second part of the text states theses and agenda items for further analysis of the "international practice of law." This agenda and future orientation was necessary, since law firms deal with an emerging new field of legal observation and analysis, which at the time, was not yet established in Switzerland as an academic and professional subject. The text then deals with theses and agenda items in the clusters of "legal systems", "legal professions" and "legal education".
The conclusion of the text reads as follow:

"Swiss attorneys active in the international practice of law, like their counterparts in EU member states will have to take a path to integration parallel with the business integration paths of their main clients. A quickening economic integration process, even within the EU, will play a greater role than the political process. One’s own plans should in the short and middle-term be determined by the actual integration design. Those who timely recognize the described economical political trends are not indifferent to integration. Among Swiss practitioners, an indifference to the EU could have more important long-term consequences than the full entry of Switzerland into the EU. Anglo-Saxon developments now dominant in the European market, including the Swiss market, are more important than developments originating in the European or Swiss area. These Anglo-Saxon influences exist independent of whether Switzerland joins the EU, remains isolated from the EU, or achieves a mixed form of integration. Swiss international attorneys will therefore have to take into account globalization "à tout azimut.” Accordingly, the more isolated Switzerland or other Continental European countries become, the more likely that global trends for the international practice of law will be missed. The decreasing significance of Switzerland and Swiss law - or of other continental European jurisdictions - should spur participants in the legal business to steer the other way and to strengthen their relatively successful positions.

The authors suggest that the factors attributed to the specific Swiss situation are ceteribus paribus valid for the situation of attorneys in continental European countries, which are all affected by the hurricane called “globalization.” It is demanding for squadrons of European lawyers in their own intellectual and culturally sovereign jurisdictions to stand up against a superior Anglo-Saxon juggernaut consisting largely of American and English representatives of the legal profession.
Time waits for no one, as the artist Remy Zaugg suggests in his artwork "Titanic" displayed in the Swiss Federal Administrative Building, in Berne. The insular Swiss must engage with the outside world: The World - but I - I see you."

c) Text

You can find a scan (PDF) of the original text here:
E_2.26_DROLSHAMMER_PFEIFER_International Practice of Law

a) Background

The text at hand appeared as chapter of a General Report to the Schweizer Juristentag 2012, the annual meeting of the Swiss Lawyers Association, which had as Leitmotiv "Das schweizerische Recht vor der Herausforderung des internationalen Rechts" (Swiss law faced the challenges of international law). This annual event is the most representative general event for Swiss law and Swiss legal culture and has a substantial general influence particularly by the annual publications of the general rapporteurs (reporters). The Swiss Lawyers Association at great intervals turns to address and evaluate the international position of Swiss law and Swiss legal culture in a changing world. As said, it chose for the third time in past 25 years its Leitmotiv the international challenges and the position of Swiss law and Swiss legal culture in the internationalising world after the end of the cold war. In 1988, the annual meeting in Bern dealt with the topic "Schweizerische Rechtsordnung in ihren internationalen Bezügen" (the Swiss legal system in its international dimensions), (see text 2.34 Rezeption des Amerikanischen Rechts (the reception of American Law) of Wolfgang Wiegang in the part Americanization. The annual meeting of the Swiss Lawyers Association in the year 2000 in St. Gallen had as a Leitmotiv "Globalisierung und nationales Wirtschaftsrecht" (globalization and national economic and business law), from which the text of Heinrich Koller, at the time the chief legal official of Switzerland on the globalization and internationalization of Swiss business law can be found in the Anthology in the part on globalization in text 2.16. In the part on globalization, the reader also finds another excerpt of Carl Baudenbacher in the text 2.6 with the title "Contribution of Swiss law to Foreign, International and European Law" and a text of Peter Nobel on the role of Switzerland as a center and backoffice of international banking and finance law so to say. (see text 2.5 Globalization)

The reports of the annual meeting general report of the Schweizerischer Juristentag 2012 in Geneva dealt with issues of the influence of international law on Swiss criminal law, Swiss law of banking and financial markets and Swiss conflicts of law. The report of Carl Baudenbacher has approximately 240 pages. The title is Swiss economic law facing the challenges of international and European law. It mainly deals with the concept of economic law (A), the swiss governance model (B), the traditional corner stones of Swiss economic law (C), the impact of international and European law on Swiss economic law (D), Switzerland as a party of treaties with economic law relevance (E), Americanization and Europeanization of Swiss economic law in particular (F), contribution of Swiss law to foreign, international and European law (G) and conclusions (H). For the purpose on the chapter of Europeanization of Swiss law and legal culture of this Anthology, we use an excerpt. The EU's call for instututionalization of the bilateral agreements. The text may be read in conjunction with Daniel Thürers (text 2.28) opinion for the Swiss government on the basic options to approach the negotiations in the area of institutional set ups and the (text 3.24) letter of the Federal Tribunal on the Issues.

Carl Baudenbacher was a full professor of civil-, commercial, and business law at the Univeristy of St. Gallen. He became an emerite in 2013. He is the Director Executive of Masters of European and international business law MBL - HSG. Carl Baudenbacher is an outspoken scholar, often criticising as well as at times consulting the Swiss government. Carl Baudenbacher is one of the few truly internationalized, – here Europeanized – Swiss legal scholars, who took their academic and professional activities international. He early taught in Germany, he advised the Principality of Lichtenstein in its accession to the EEA agreement and was named by the Principality of Liechtenstein to become a member of EFTA Court, of which he still acts as President.
The excerpt at hand is a critical comment on the EU's call for institutionalization of the bilateral agreements, as a precondition of starting to negotiate on a third package of bilateral agreements.

b) Summary

The EU and Switzerland have concluded some 120 bilateral agreements, 20 of which according to Baudenbacher are of special significance for which conflicts are, as a rule, to be settled by diplomats. After the second package of bilateral agreements, Swiss political and business circles floated the idea, that the bilateral path should devolve into a specific Swiss form of European integration, thereby putting on the backburner the long term objective of EU membership. The European Economic Area from this perspective was largely depicted as inferior to bilateralism, in particular from the point of view of state sovereignty. When talks were opened with the EU for further bilateral agreements, for instance in trade in electricity, chemical safety, food and product safety and free trade in other cultural goods, the European Union, according to Baudenbacher, became less and less enthusiastic about the sometimes slow taking over of new acquis and the diplomatic conflict management. In December 2008, the Council of the EU claimed that Switzerland had not fully implemented the EU acquis in the area of free movement of persons and that certain cantonal tax regimes were not compatible with the state aid provisions of the 1972 EU- Swiss Free Trade Agreement. In December 2010, the European Parliament called on Switzerland to agree to a horizontal mechanism. The EU-Commission on its part made it clear to Switzerland, that the conclusion of new bilaterals could only be envisaged if a satisfactory solution could be found for institutional issues such as: 1) dynamic adjustment of bilateral law to new relevant EU acquis, 2) a mechanism ensuring a uniform interpretation of bilateral law, 3) a mechanism for monitoring compliance with the bilateral treaties and 4) a judicial mechanism.

Baudenbacher's conceptional remarks patently show a clash of two concepts of Switzerland's integration in Europe. In the course of the years 2010-2011 Switzerland indicated nolens volens, that it would be prepared to speak about an institutionalization of the bilateral agreements, after the Federal Council's report of September 2011 discussed three options, after Daniel Thürer, who had been commissioned by the Federal Council to write an opinion to come to the conclusion that the creation of a bilateral judicial or arbitration mechanism would be legally impossible. Thürer presented three models, 1) the docking to the EEA - EFTA surveillance authority and EFTA court, 2) the creation of a Swiss implementation body and a chamber at the Federal Tribunal and 3) the creation of a Swiss implementation body and of a judicial forum with the Federal Tribunal. The three models refer to so-called "pillar models". On the 26th April the Federal Council announced that it planned to propose a "two pillar" model to the European Union consisting of a Swiss pillar and an EU pillar. The Swiss pillar of an "independent" surveillance authority consisting of Swiss citizens would be elected by the Swiss parliament and the judicial function would be exercised by the Federal Tribunal. Baudenbacher strongly argues against such a model. He gives detailed reasons that he has taken to the general public as well.

This issue is still subject to negotiations between Switzerland as a precondition for further negotiations for bilateral agreements.

c) Text

You can find a scan (PDF) of the original text here:
E_2.27_BAUDENBACHER_EU’s call

[Legal opinion for the Swiss government on possible forms of transformation and application of Bilateral Treaties]

a) Background

The text at hand is a formal legal opinion written at the request of the Swiss government. The text has to be read in conjunction with the discussion document in form of a letter of the Executive Committee (Verwaltungskommission) of the Federal Tribunal of Switzerland to the Federal Council in the same matter 2.29, see also the text of Carl Baudenbacher 2.27.

The legal opinion can be characterised as follows: the origin of the need for an opinion is the alleged precondition of the European Union of solving certain institutional issues for the negotiations of further bilateral agreements based on the document Conclusions on EU relations with EFTA countries of the Council of EU, 14th December  2010 (17423/1/10). The document states that there is a lack of an efficient regulation on the taking over of the new acquis-de-droit-communitaire into Swiss law, including the following of jurisprudence of the European Court of Justice, as well as a lack of surveillance and enforcement of the existing treaties. The present two-pillar approach does not bring about the necessary homogeneity in those parts of the common market and those parts of EU policies in which Switzerland participates. According to the Council of the EU, this has led to legal insecurities for administrations, private actors in the economy and individual citizens.

The Federal Council's mandate to opine requires the showing of potential institutional options for supervision and the enforcement of the direct application of the bilateral treaties between Switzerland and EU, in Switzerland and an assessment of these options, taking into account aspects of sovereignty and public law (including federalism and separation of powers), as well as in the light of the efficiency of the surveillance and of the realisation of the goals of the treaties. The author proposes to deal with the mandate in a larger context. The text is not a scientific article, the author says; therefore, only limited literature is cited. In part one on the status quo, a complete footnoted overview on the relevant court decisions in the EU and in Switzerland is included. The text is primarily technical insofar as it is necessary to answer the two questions. The text breathes an internationalist's spirit and is deeply rooted in the historic experience of the unfolding of the principle of integration in the EU.

Daniel Thürer is an emerite professor (2010) of international law, European law and comparative constitutional law at the University of Zurich. He is a leading analyst and commentator of the developments in the legal relationship of the EU law and Swiss law. In the summer of 2011, he was mandated by the Swiss Federal Council to write a legal opinion on the opportunities and limitations of a further coordination and harmonization of Swiss law with EU or in connection with the next and crucial round of negotiations with the EU.

b) Summary

The text contains a detailed description of the status quo of the bilateral system between Switzerland and the European Union, written from a broader perspective. It recites the collective judgements of the European Court of Justice, as well as of Swiss Federal Tribunal, in more than a hundred cases. The text, moreover, describes the status quo of the parallel practice of surveillance and enforcement on the side of Switzerland and the EU with respect to the question of a central mechanism for surveillance of the bilateral treaties. Thürer comes to the conclusion that there is no way around the "two pillar-approach" leaving the task to steer between the scylla of status quo of a parallel application of law and the charybdis of the joint parallelism of application of law.

In that context, only a limited number of models may enter into play. They are described under the headings, Integration into the EEA/EFTA-system, Integration into the Swiss system and Structure of institutions aspired by the EFTA-system. The options proposed are benchmarked with aspects of law; the effects on federalism, the integration into the direct-democratic system of Switzerland and political issues of sovereignty.

Without raising the issue of full membership or of accession to EEA agreement, Thürer takes the opportunity to list his ideas on the strategic priorities in exploring an institutional "third way" regarding the structuring of bilateral agreements.

The opinion contains the following summary: the opinion purposes three approaches in order to further develop the bilateral system. In all three approaches special institutions are proposed on the Swiss side. On the EU side, the usual organs of the European Court of Justice and Commission of the EU remain competent. The proposals, therefore, follow the two-pillar structure described by the European Court of Justice.
The first approach proposed is the integration on the Swiss side of the bilateral system in the EEA/EFTA-order which is adapted to the interests and to the needs of Switzerland (1). The second approach proposed is the application and enforcement of the bilateral system to remain by and large within the Swiss legal system. A special organ (Umsetzungsstelle) is formed, which has an advisory function and which may appear in court proceedings. A special chamber of the Federal Tribunal is responsible for the traditional enforcement of the bilateral system in Switzerland. The third approach proposed is a solution between the first and the second approach, which would follow the example of the EEA/EFTA-institutions with a special organ (Umsetzungsstelle) and a judicial forum, which are responsible for the enforcement of the bilateral system in Switzerland. The difference to the second approach consists in a removing of the organs further away from the Swiss system. This leads above all to the introduction of a "Vorentscheidungsverfahren" (preliminary decision proceeding) in which the judicial forum decides on the interpretation of the bilateral system and the special organ (Umsetzungsstelle) and the judicial forum to a certain extent also examine the legal and constitutional behaviour of the institutions of Switzerland.

These three solutions have advantages and disadvantages, which are described in the opinion.
The negotiation position and negotiation strategy pursued in the process will decide on which of the three approaches will be chosen. In the meantime, it has become obvious that the Swiss proposals set forward so far do not meet the expectations of the EU. The respective negotiations presently are still going on.

c) Text

You can find a scan (PDF) of the original text here:
E_2.28_THURER_Gutachen

[Swiss Federal Tribunal, advisory opinion in form of a letter to the Swiss government on possible forms of transformation and application of Bilateral Treaties]

a) Background

The Federal Council invited the Swiss Federal Tribunal to participate in an exchange of ideas on the topic of introducing institutional elements to provide for a necessary formalisation of the application of the bilateral agreements between Switzerland and the EU. The answers of the Federal Tribunal were aimed at helping the Federal Council to meet the requirements of the document Conclusions on EU relations with EFTA countries, Council of the EU of December 14th 2010, 17423/1/10 Ref. 1, paragraph 42.  Within the separation of powers in Switzerland, the Swiss Federal Tribunal participates in various forms in the formation and the administration of the Swiss legal system by a central committee called the Verwaltungskommission.

The text at hand is a letter and policy paper of this committee to the Federal Council dated 29th June 2011, preparing an exchange of opinions planned between the Federal Council and the Federal Tribunal on the mechanism of interpretation of bilateral agreements between Switzerland and the EU

b) Summary

The Federal Tribunal states its basic attitude that the court is the supreme organ of the administration of justice in Switzerland and not a political organ. The statement, therefore, is a text reflecting and adhering to this constitutional division of work. The constitutional task of the Federal Tribunal is to provide a unity of law and its decisions in Switzerland, which applies to international relations as well. Therefore it is the Federal Tribunal's task to enforce the bilateral agreements between the EU and Switzerland. As a separate and independent task of the Federal Tribunal, it coordinates its jurisprudence independently with the jurisprudence of the EU.

With respect to a unitary interpretation and application of the bilateral treaty following its traditional jurisprudence, the Federal Tribunal follows the existing jurisprudence of the European Court of Justice as far as possible. The Court autonomously establishes a parallel legal situation and, thereby, also recognises the taking into account of the jurisprudence of the European Court of Justice. The mechanism of interpretation would be more efficient if this would be stipulated expressly in the bilateral agreements. A preliminary decision proceeding (Vorlageverfahren) of the Federal Tribunal to the European Court of Justice for decisions regarding bilateral agreements is not possible without basic changes in law. According to the court, this is not necessary. It is conceivable to institutionalise an informal exchange of opinions between the Federal Tribunal and the European Court of Justice. The precondition of the Federal Tribunal to act in any case is an existing basis in the bilateral agreements. The extension of those agreements is a political issue. Regarding the surveillance authority, the Federal Tribunal favours a solution which could bring action for treaty violations to the Federal Tribunal. Analogous to the EU a right for action, liability of government (Staatshaftung) could be filed with the Federal Tribunal of private individuals. According to the letter, the Federal Tribunal considers itself the single and only organ for the review of the application of bilateral agreements within Switzerland; the allocation of  competences to more  than one bench of government should be avoided in Switzerland. Also importantly, the Federal Tribunal is against a solution in which against its decision an appeal could be lodged to the EFTA-Court or to a Court of Arbitration. This would seriously impair the sovereignty of administration of justice in the area of bilateral treaties of the Federal Tribunal in Switzerland.

c) Text

You can find a scan (PDF) of the original text here:
E_2.29_SCHWEIZEREISCHES Bundesgericht

a) Background

Fritz Ernst excelled in writing essays and is a prominent representative of the important tradition of this form of writing in Switzerland. In order to better understand the role of this tradition, we make a few introductory remarks.

From an international perspective important Swiss essayists at the 20th century are Carl J. Burckhardt, Jean Rodolphe de Salis, Gonzague de Reynold primarily before World War II, Herbert Lüthi (see text 2.32), Francois Bondy, Karl Schmid (see text 2.31), Francois Bergier, Peter von Matt (see text 2.34)  and later Iso Camartin – Carl J. Burckhardt, Jean Rodolphe de Salis and Gonzague de Reynold primarily had roots in the French speaking culture and Iso Camartin in the Romanic culture as well - all of them were well versed in German and basically wrote their essays in German. The topics addressed by those essayists show a deep knowledge of the essence of the historic emergence of Switzerland as a nation. At the same time, before and after World War II, they looked far beyond Swiss borders, primarily towards Europe, and not so much to the emerging Anglo-Saxon and in particular, American world. Some had their roots in literary, some in historical sciences, some both. Those teaching at universities as academics were comparativists in general.
For some reason maybe due to smallness and insularity? - Switzerland was rarely a topic of non-Swiss social scientists, essayists or writers. The analysis of books and texts in the three parts Europeanization, Americanization and Globalization has shown the absence of foreign writings on Swiss law even more patently. Exceptions exist and have to be named, in particular,  Ernst at hand: Lionel Gossman's book Basel in the Age of Burckhardt, A Study of Unseasonable Ideas is among the - towering - exceptions. Lionel Gossmann is a professor emeritus of Romance language and literature at Princeton University and a Scott by nationality. Gordon A. Craig belongs in the same league, The Triumph of Liberalism, Zurich in the Golden Age 1830-1869. (See text 2.7 in the part on Americanization)The book was written in Zurich and originally published in English in 1988. Gordon A. Craig at the time was a professor of history at the University of Stanford. He has been called the most gifted historian of Germany writing in English; we also mention Nicolas Bouvier, Gordon A. Craig and Lionel Gossmann, Geneva - Zurich - Basel, history, cultural and national identity with an introduction by Karl E. Schorske, which appeared at Princeton University Press in 1994. The three studies in this small volume were originally presented at a colloquium on the topic "Cultural Unity and Diversity: Switzerland after 700 years," which was held at the University of Southern California on March 15, 1991. The colloquium was intended to mark the seven hundred anniversary of the Swiss Confederation.

The text at hand of the comparative and literary scientists, Ernst's "European Switzerland, historically considered" has to be situated in that tradition of Swiss essayist mentioned. The text is a translation of  Ernst's essay "Europäische Schweiz - eine geistesgeschichtliche Studie." Contrary to the German original, the translation does not contain the postscript In which Daniel Bodmer explains the history of the coming about of the text as well as its translation. This is particularly relevant in the view of the purpose of this Anthology. The text Europäische Schweiz of Fritz Ernst was a text, which had been planned for publication but had not appeared anywhere at the time (1951). Ernst, according to the postscript in 1947, agreed with the Pro Helvetia Foundation to write a book with the title Der Beitrag der Schweiz zur Weltkultur (The Contribution of Switzerland to World Culture). The basis was meant to be his academic course Europäische Kulturwerte der Schweiz (European Cultural Values of Switzerland), which he held in 1948 at the Federal Institute of Technology in Zurich. A student - memento de Saussaure - stenographed Ernst's classroom presentations. This text stayed as manuscript with Foundation Pro Helvetia in 1950, since in the meantime Fritz Ernst had become a professor of comparative literature at the University of Zurich and he was involved with writing other publications. The foundation first decided to publish an English version of the study and entrusted Cecil Clifford Palmer with the translation of the German original. The essay appeared in 1951 under the title European Switzerland in the Zurich publishing house Fretz und Wasmuth, which no longer exists. Contrary to the majority of the texts in this chapter of the Anthology, this is the only early text after World War II which was destined and addressed to non-Swiss readers and was translated into English for that specific purpose. The fact that the Foundation Pro Helvetia - the guardian of Swiss culture nowadays in Switzerland and in particular abroad - recognized this and made this publication in English possible is to be noted. Nine years later, Ernst wrote the volume, Der Helvetismus (The Helvetism), which had as its aim to explain the Swiss - and not primarily the foreigners - the diversity of the cultural history of Switzerland.

The text at hand is a contribution of a neighbouring social sciences and humanities - here comparative literary criticism - to the Anthology of texts focussing on the Europeanization of Swiss law and legal culture.

Fritz Ernst was born in 1889 in Winterthur and died on March 26th, in 1958 in Zurich. He was a Swiss literary scholar and an essayist. Fritz Ernst studied German language and literature in Berlin and Zurich. In 1915 he received his doctoral degree with a dissertation on Romantic irony. From 1917 to 1947, he worked as a high school teacher at a girls’ school in Zurich. From 1943 on, he was Professor of History of Literature at the Swiss Institute of Technology (ETH) and, from 1948 on, Professor of Comparative Literature at the University of Zurich. Fritz Ernst wrote studies in literature in a conservative and cultural critical manner. During the Third Reich, he also actively contributed to the official mental and intellectual defense of the country (Geistige Landesverteidigung).

b) Summary

The text at hand is a translation of the original text in German with the title Europäische Schweiz at the request of the Pro Helvetia Foundation.

The opening statement of the text at hand of Fritz Ernst, reads:
"Whoever approaches Switzerland from the Rhine or the Rhone or the Po is prepared to find a miracle of nature rather than a homeland of culture. Yet it is true that sciences and arts always had a home here where they were assiduously cultivated. The population of the country amounts to no more than a two-thousandth part of the human race. The foundation of Swiss self-respect is not to be imperilled by reference to these unpretentious figures. A long historical development, the conquest of many a difficulty, the enjoyment of many a favour granted by destiny - all have imparted to the Swiss the feeling of a right to their existence as well as a sense of their capacity to face the strains of life. They do not appeal to any community of languages or creeds in order to find an exponent of their national characteristics, but to certain fundamental ideas, which, though applicable beyond their frontiers, are particularly congenial to them. They are aware, besides, that the eyes of the world have often been upon them and that disappointment has not necessarily been the result. In this sense readers outside of Switzerland may avail themselves of this short inventory, drawn up by a Swiss, of those values which seem to him to have European validity."
The text at hand in a sequence of a few pages each  describes the key elements the texts in this inventory; the titles of the commented essay are William Tell, Renaissance, The Reformation, The Period of Enlightenment, Rousseau, Nature and Naturalness, The Conception of Individuality, The Conception of a Nation, The Struggle Against Napoleon, The XIXth and the XXth Century, Amiel and Burckhardt and Neutrality and Community with the World.

The last sentence of this text was visionary in 1951. It is the first scholarly attempt to publish on the inevitable development of a confrontation of Switzerland with the unification of Europe after World War.: "If Switzerland should ever see herself obliged by the course of world-wide events to give up here neutrality, a conscientious retrospect would enable her to do so without regretting her past."

c) Text

You can find a scan (PDF) of the original text here:
E_2.30_ERNST_European Switzerland

[Switzerland facing the European reality]

a) Background

The text at hand is a published manuscript of one of the many speeches given by Schmid throughout his career as a public individual in a variety of fora and institutions. The presentation "Die Schweiz vor der europäischen Wirklichkeit" (Switzerland facing the European reality) was given at the "Schweizerischer Gewerbekongress" on May, 8./9. 1968.

Schmid has constantly looked outward and observed European developments through the lenses of a Swiss observer and interpreter. Beyond the texts of public speeches, he expanded his academic thoughts in books such as Europa zwischen Ideologie und Verwirklichung - Psychologische Aspekte der europäischen Integration (Europe between Ideology and Realization - Psychological Aspects of European Integration and Hermann Hesse und Thomas Mann - Zwei Möglichkeiten europäischer Humanität (Hermann Hesse and Thomas Mann – Two Possibilities of European Humanity, 1950).

The text at hand is one of those non-footnoted texts first spoken then written in a language to be understood easily, squarely addressing the emerging European reality in times of post-World War II. In view of the purpose to address the general public in this Anthology, we consciously chose texts of Swiss public individuals which have raised their voice - such as Herbert Lüthy (see text 2.32) and Fritz Ernst- in the early years after World War II. Schmid is a master to integrate literature, history, psychology and the political process. He was not shy to turn knowledge into convictions to be presented to the public. According to him, the influences of the new European reality had to be compared to the reality of Switzerland's earlier accession to the League of Nations. This issue did not allow simple attitudes and black and white opinions to come to the foreground.

Karl Schmid, until his untimely death in 1974, was a towering figure of the post-World War II militia system in Switzerland.

Schmid was born in Zurich on the 31st January 1907 and was a Swiss philologist and a scholar in German literature and in history. He studied German and history at the University of Zurich and at the Humbolt University of Berlin from 1926 to 1934. In 1934 he received his doctoral degree with the University of Zurich. Schmid was a paramount example of the system reigning after World War II in which individuals at the same time were active - and excelled - in the professional, military and academic parts of Swiss society. In 1944 he was appointed as a Professor of German Language and Literature at the Swiss Institute of Technology (ETH) in Zurich and from 1953 to 1957 he was its President (Rektor) and became an emerite in 1974. Schmid was a member of the Swiss militia army from 1927 to 1970, finally as a Colonel of the General Staff and Chief of Staff of the 3rd Army Corps. From 1967 to 1970, he was the governant appointed head of the Commission for Strategic Issues (Studienkommission für strategische Fragen). In 1940 he married the popular actress and comedian Elsie Attenhofer, a prominent member of the legendary "Caberet Cornichon."
As an academic, he was a member of the remarkable department of the Federal Institute of Technology highly regarded in social sciences, history, languages and philosophy with no right to have PhD candidates, contrary to the respective departments of the University of Zurich just fifty yards away. Most members were historians like Jean Rudolphe de Salis and Herbert Lüthy, economists such as Eugen Büchler, psychologists and psychiatrists such as Carl Gustav Jung, who exerted a great influence on his colleagues while at the same time not being welcomed to teach at the University.

Schmid was an eminent representative of literary science and wrote texts on Swiss literature such as the book "Unbehagen im Kleinstaat" (uneasiness in a small nation) with analysis of writers such as Konrad Ferdinand Meyer, Henry- Frédéric Amiel, Jakob Schaffner, Max Frisch and Jakob Burckhardt, all eminent representatives of Swiss literature and history. Karl Schmid was an early proponent of interdisciplinarity and wrote a book "Europa zwischen Ideologie und Verwirklichung - Psychologische Aspekte der europäischen Integration" (Europe between Ideology and Realization - Psychological Aspects of European Integration) evidencing a strong Jungian influence. Zurich, after World War II, was a world centre of various schools of psychoanalysis such as the Freudien School, the School of Daseinsanalyse (Boss, Binswanger Condrau), the Schicksalsanalyse (Szondi) and Jung's psychoanalysis of; Zurich being the designated world centre of the education and training of psychoanalysists following the Jungian School.

As a public figure, Schmid was President of the Schweizerischer Wissenschaftsrat (the Swiss Council of Sciences) from 1969 to 1972, in addition to being President of the Federal Institute of Technology, and other organisations with public purposes.

Schmid was an active and practicing officer holding important functions in the army and being the president of the influential "Kommission für strategische Fragen" from 1967 to 1970. He has extensively written on the essence of the soldier. He was a generous and esteemed speaker in front of many public fora within Switzerland, and gave lectures, which have been published later as key texts of Swiss post-World War II thinking.

For Schmid, Switzerland has been at the centre of his attention as an historic and cultural entity. At the same time he was a keen observer and interpreter of the emerging new world order after World War II.

He has been widely honoured; there is a Karl Schmid Street and there is a Karl Schmid Prize awarded.

His numerous works has been reedited in a critical edition of six volumes bringing it back to the attention of interested readers, scholars and students.

b) Summary

The text can be summarized as follows: According to Schmid, the influences of the new reality had to be compared to the reality of Switzerlands accession to the League of Nations after World War I (?). The issue of the rising Europe after the war, according to Schmid, did not allow simple attitudes and black and white opinions.

He argued that the provoking complex of "modern European reality" required tendencies of a growing unification of what is functionally similar (1), the role of the planning and the organization of the future (2) and the tendency to easily neglect the historical past to be frankly and squarely addressed by a larger public (3).

The problem of facing integration, according to Karl Schmid, is more than the sum of factual problems. It includes ingrained sentiments and powerful instincts. In view of the fact that the development in Switzerland since 100 years has been fairly straight,tthe "old" of the Swiss world has been retained and is visible until recently, the Swiss, according to Schmid,  knew no crisis of identiy and had doubts of themselves. This is where Schmid raises his warning finger in the text by arguing that self-assuredness based on this new situation should be approached soberly and in a constructive manner. Schmid, among others, heavily focuses on the attitude that political reality can be shaped and can be formed to a certain extent. He uses his examples from literature and political education of reality of the past 100 years and points to a series of developments of new issues and problems, which all surrounding nations are faced with in post-World War II times. He advocates an openness towards the emerging European reality, "it would be dangerous, if we would think, that we could sit like wise Buddhists at the border of Europe and observe how the attempts of interstate cooperations treaties and go awry. He advises and distinguishes that, in this process, changes can not be "directly effected" but the only thing that can be done is that something can be done that changes are happening. He militates for mitigating the use of "European" in the title, since the European development is only a part of the international development. The solution of the question of the reality of our times and to what extent we have the courage to participate in the creation of the future - The world - but I - I see you (Rémy Zaugg), the Leitmotiv of the part on Globalization in this Anthology.

c) Text

You can find a scan (PDF) of the original text here:
E_2.31_SCHMID_Europäischen Wirklichkeit

[Switzerland as Antithesis] 

 a) Background

The text at hand is a seminal essay by the Swiss historian Herbert Lüthy on the heart and the essence of Switzerland at the verge of an imminent confrontation with the rising European Union.

Lüthy belongs among Carl Jacob Burckhardt, Jean Rudolf von Salis and Karl Schmid as a prominent personality of intellectual life in the German speaking part of Switzerland in the second half of the twentieth century. He was well-known outside of Switzerland as well. In his academic career he was a professor of Swiss history at the Swiss Institute of Technology in Zurich, thereafter at the University of Basel. In his parallel career, he worked as a journalist and publicist, from 1946 to 1958 in Paris and wrote provocative essays in an elegant style. The texts at hand "Schweiz als Antithese" is an early example of Lüthy's grasp of the essence of Switzerland as a nation. The text in was first written in 1961 in French, La Suisse a contre-courant in the Revue Economique Franco-Suisse. The German translation of 1963 was published at the time of the first “crisis of integration” in the European Community. It is a forceful and timely analysis of not bowing to the trends of the present. In a later comment on the essay written in 1969, Lüthy writes that models for Switzerland in the year of 2000 may become obsolete faster than the institutions of yesterday. The final statement of the essay is, if "the world is aiming at the great unity, it aims nonetheless to the liberty and the self determination of all its communities, also of the smallest...".           

b) Summary

The text is a forty-page essay without subtitles, footnotes and subparagraphs. It is a meandering walk in circles around what Lüthy thinks is the essence of Switzerland.

It starts with the existence and the self-consciousness in Switzerland, people perceive themselves first a part of a canton and not of a nation, cantons not only being autonomous but according to the preamble of the constitution being sovereign. All modern nations have been formed by aggregating the particularities of its constitutional parts; Switzerland has survived the most serious crisis in its history, by and through this particularism of the country.

Switzerland is a small territory; it only acquires a certain dimension of greatness through its topographic and linguistic variety on such a small territory. The microcosm of its own kind is at the intersection of three big cultures of Western Europe. It is forgotten that the religious and language variety of Switzerland is a recent phenomenon. The basic traditions and institutions of the first five hundred years of the history of Switzerland are almost exclusively alemanic, just as today around 75% of the populations are Swiss German speaking.

Until the true birth of Switzerland following the French occupation and subsequent fall of the French empire, Geneva and Neuchâtel, which had been made part of France, hastened to become part of Switzerland again. The renitent alemanic particularism on the basis of living together in multi-language communities on Swiss soil is the Germanic tradition of democratic unity, which is defended against any and all tendencies for unification. Alemanic Switzerland had to fight for its independence and distance vis-à-vis Germany. There is never a majority, there always is a multiplicity of minorities and a variety of minorities which at times ad hoc find opportunistic majorities. According to Lüthy, Switzerland is the most archaic country heavily marked by continuity.

Lüthy states the particularity of Switzerland lies not as much in the origins of its existence but that those old structures have stayed, resisted and survived the dynamic changes of modern times and that they have been adapted to new requirements of Switzerland as state: It is the control of the particularistic liberty of the community in Europe, where the future belonged to centralistic territorial states. Only when and if the confederations of independent communities no longer were able to cope with historic reality, did they decide to form a nation in the form of a confederation. The particularisms were maintained, thereby avoiding the idea that Switzerland ever knew an identification with a state or a nation. Switzerland has stayed the negation of the historic development of aggregation of large organised masses and, thereby, is the proof - according to Lüthy - that a confederation can govern themselves without being subjected to governmental bureaucracy.

Foreign observers of Switzerland were astonished to note that the Swiss do not have a genuine Swiss citizenship but that they are primarily citizens of a community and then of a canton.

The functioning of the Swiss democracy, in particular, the cascades of popular votes on the levels of communities, cantons, and the federation were noticed an admired by foreign observers.

Lüthy uses as an example the railway system and observes the densest networks of railways, which through those cascading popular votes had been built to the wishes of the smallest community. If one compares this to the railway network of Paris, one immediately realises the difference between a central and a federal government. These developments have led to the fact, that Switzerland does not have a visible and shining capital. Lüthy points out to the reader that adaptations to modern times in Switzerland had to be done in a contradiction. One third of its territory was infertile, had no natural resources and had no access to the sea, and originally was a country of emigration because of its poverty. He critically highlights the drawbacks and negative sides of these sources of the developments. The full resistance in the inner workings and the inner balance of the regions did not prevent the industrial progresses, though.

According to Lüthy it seems, that the people are amongst themselves unified and participate in the recent international economic competition, which is a discrepancy to the political will which is tempted to stay what it always has been. It is obvious that the governmental institutions rooting in the soil always are and adapt slower than life. Lüthy anticipates the necessity that this governmental structures will lead to a crisis of institutions, which will come at the same time as developments in the relationships to the world will force Switzerland to find solutions.

Lüthy then characterizes a lack of vision of Switzerland in foreign relations and criticises the systematic passivity, which is not less strict and demanding than the attitude of active participation. This particularity will show in the relationship to the European communities. The decision to leave the League of Nations still has a strong influence in view of the obvious necessity of Switzerland to face the new European realities. Switzerland might realise, that the history of the confederation and its pluralistic structure of its micro cosmos might be the only existing model in which the possible modalities of an organic integration of the European particularism can be empirically studied. Lüthy ends the essay with a statement that the history of Switzerland shows that at the end of long periods of disorders it was possible within a small territory to bring about the cohesion of the whole and retain the individuality of its constituents.

a) Background

Parallel to the writing and the international research and teaching career Adolf Muschg was a public figure in the Anglo Saxon notion. He again and again actively participated in the political life of Switzerland. He was a member of the Federal Commission for a Revision of the Federal Constitutions. He was a candidate in the Canton of Zurich to become a Senator (Ständerat). In 1995 he was a member of a project group Human Solidarity Switzerland. He was a co- founder of the "Gruppe Olten" of Swiss authors, and is a member of academies of various German cities. For many years Muschg had a close relationship to Germany in teaching, lecturing and being member of various academies, finally becoming the President from 2003 to 2006 of the Academy of Arts in Berlin, where he also was a fellow at the Wissenschaftskollegium. He constantly commented on issues and developments in Swiss cultural and political life and thereby integrated his cosmopolitan life and experience. He usually argued from a Continental European perspective. He is known to have taken a critical position on Switzerland's role in World War II and its trials and tribulations in relation to European Integration. The essay Wenn Auschwitz in der Schweiz liege (If Auschwitz would be in Switzerland) implied Switzerland directly with Nazi Germany in a contested and extreme position.

In November 2004 and February 2005 Muschg gave four public lectures in the German city of Essen entitled Was ist Europäisch?(What is European?) with the subtitle Reden für einen gastlichen Erdteil (Lectures for a hospitable continent). The lectures were held in the "Villa Hügel" of Essen which in analogy to the "Grüner Hügel" in Bayreuth symbolizes the former pre-eminence of German culture in the world. Muschg approached the question "What is European?" not from a specialist but from a writer's position. The lectures were delivered during the time, in which Muschg was the President of the Academy of Arts in Berlin, what he calls a European institution. In the series of lectures Muschg insists, that the lectures have to be seen on the background of his home country Switzerland, which in the life time of the speaker is unlikely to change the votes of the people and the Cantons to become a full member of the European Union. Muschg therefore declares himself to be a divided (gespaltener) friend of Europe and an - active - participant in this dilemma of the Swiss people.

The text at hand is the text of lecture four Europa: Das Fest, Der Tod und die Andern (Europe: the feast, the death and the others) Zitat: „In diesem letzten Kapitel möchte ich mich auf die Suche nach Europas bindender Kraft machen, nach der Essenz dessen, was es im Innersten zusammenhält. Der feingliedrige Erdteil mit der blutigen Geschichte: er hat die Welt geteilt, um sie zu beherrschen, und sich selbst dabei zerrissen." He chooses as a topic the search for the binding forces within Europe, and for the essence, of the soul and the core intrinsic nature of Europe. The essay breaths the rhetoric of the oral presentation and is complex. His Swiss background and the writing of Gottfried Keller, an eminent Swiss poet are at the centre of his line of arguments.
Muschg is an important, albeit at that time controversial, writer of essays on various aspects of Swiss culture. He has an impressive biography as a post World War II cosmopolita in several respects. He foremost is as a  poet and writer who has been awarded many prestigious prizes. From 1953 to 1959 he studied Germanistik, Anglistik and Psychology in Zurich, with two trimesters as a Research Student in Cambridge - England. He obtained his doctoral degree Dr. phil. at the University of Zurich with Emil Staiger. From 1959 to 1962 he was a teacher at the gymnasium in Zurich; from 1962 to 1964 he was a lecturer at the International Christian University of Tokyo; from 1964 to 1967 he was a scientific assistant at the University of Gottingen; from 1967 to 1969 an assistance professor at Cornell University, Ithaca N.Y.; from 1969 to 1970 he was researcher at the University of Geneva and in 1970 he became a Professor of German Language and Literature at the Swiss Federal Institute of Technology in Zurich.He is an emerite since 1999.

b) Summary

The text has a refined and complex structure and does not lend itself to a straight forward summary. Muschg in writes on a search of what the binding forces of Europe are, and what the essence, what Europe at the bottom of the heart, is. He begins his observations that, according to the logic of history, Europe after World War II might as well have disappeared and that the ensuing division of Europe in the middle in a bipolar world order was brought about by powers outside of Europe. In the aftermath of this dramatic and paradoxical development, Muschg searches for the origins of a strife for a unity of Europe, which at least politically has never has been a reality in the past. Muschg opens the discourse with a series of lead questions - with pointed inserts - on Europe such as: Where does this Europe, which learns to read itself, reconstitute its necessary "Wir Gefühl" (feeling of togetherness) Will the continuing nationally defined identities be transcended or even replaced by a new collective identity of a continent, the geographic borders of which are not even yet defined? Are we victims of a resignation or even of a capitulation faced with the logic of economics? Has the development without further discussion become an uncontested reality like formerly the dogmatism of church? Where is the vision fuelled by an allowing imagination allowing attentatives? Where are the borders of a new and at the same time reconstructed Europe? How could Europe despite the retained divisions but maintaining a self-chosen openness,  look like? How do we tap the source of a European "Wir-Gefühl" which may neither be totally lacking nor become recklessy controlling? Based upon what force does Europe create enough cohesion in order not to blow up in pieces and how does it retain enough openness in order not to become a rigid fortress? And is Europe globalized in a world of a rhetoric phenomenon, a geographic fiction as it was in the brains of the humanists?

In the main part of the text Muschg develops his complex arguments by using his Swiss formation and experience. He openly shows his colours and states that his answer to the question in the title What is European? is: "Meine Antwort auf die Titelfrage: "Was ist Europäisch?" ist nicht ohne Emphase, aber auch ohne Einbildung und vor allem ohne Illusionen, die Schweiz (p.103) („My answer to the question in the title „What is European?" is - not without emphasis, but also without presumption and above all without illusions - Switzerland.")

Muschg develops the fruitful analogy by the use of novellas (Erzählungen) of Gottfried Keller, a Swiss representative of world literature, whom Muschg has a thorough knowledge of and about whom he has written a seminal biographical monograph. The source of these analogies, is the formation of the Swiss Confederation in 1848, which still is a unique historic and political experience and experiment in Europe, which had not been followed and equated in Europe at that time. Keller's – and in the text Muschgs – reasoning speaks of ideas of political community, love, passion and death. Muschg refers to the biblical narrative of the Arch of Noah, which the protagonist in the novella of Keller speaks of. Muschg names the basic idea of factual representation of the "different" in a confederation, which is conceived among mutually hospitable people as a finite and not eternal endeavour, as the dowry of Switzerland to the European unification, Muschg argues that the historical and unique role of a guardian of the limits of the Republic made Switzerland an early trustee of a European hope. In that sense Muschg argues that Switzerland brings a culture generating principle as its European gift to the table. Switzerland has found a niche and upon there constantly finds new equilibria in the flow of the unexpected and of time. Switzerland for centuries has acted as if it were a self-purpose (Selbstzweck), it never aimed at more than the basic existence, but with minimum material welfare, also of political rights of the citizens. It would be fit Europe to take note of the dictum: "So ernsthaft wie möglich, so humoristisch wie mötig", (as serious as possible, as humoristic as necessary) Muschg writes that it would be a miracle for Europe, if the framework of the European Union would also fulfil the bare goal to make possible for the participants a dignified and relatively secure but also a self-determined and self-willed life.
Muschg refers and explains his findings to each of the metaphors used in the subtitle of the lecture and embeds his answers to the question "What is European?" in a broader context.

[Switzerland between origin and progress, on the history of the soul of a nation]

a) Background

The text at hand is the lead text in Peter von Matt's most recent book, a selection of essays with the title "Das Kalb von der Gotthardpost, zur Literatur und Politik der Schweiz" which is tricky to translate - "the calf in front of postal carriage of Gotthard pass - on literature and politics of Switzerland". The rest are individual texts on events in Switzerland and on Swiss writers, which had previously been published mainly in the press. This text at hand is a fundamental essay written especially for the volume. The subtitle of the text is "Switzerland between origin and progress - on the history of the soul of a nation." The starting point is a painting of Rudolf Koller, a friend of the writer Gottfried Keller. The painting shows a postal carrier drawn by four horses pressing down the Gotthard pass; in the background a number of cows lazily grazing in the clouds of dust and - this is the key - a small calf fleeing in the front of the rushing postal carrier. The painting was a present for Alfred Escher, the visionary employer, politician and entrepreneur active in state and national parliament, the founder of the Swiss Institute of Technology, Swiss Credit Bank, Zurich Insurance and the founder of a number of railway companies. He is best known for his project building the first railway tunnel through the Gotthard Mountains. The building of the tunnel was in process at the time Rudolf Koller did the painting.

Europe looks upon Switzerland, the country which constantly refuses itself to the European Union. Von Matt transforms the symbols of alpine traditions and high-tech endeavours. He focuses on the prevailing tensions between the simultaneous and ongoing presence of "origin" and "progress." The text is an eye-opener, since he uses the study of literature and language to unveil the heart and the soul of a nation.

The text is situated in the part on Europeanization of the Anthology, since it is primarily the surrounding Europe and the European Union that triggers an imminent and deep rooted encounter and conflict in which a presence of the "origin" and "progress" within Switzerland become apparent in the formation of mindsets and attitudes vis-à-vis Europe.

Peter von Matt is one of the eminent scholars and public figures of Switzerland of recent times. He is an emerite Professor of German Contemporary Literature from the University of Zurich (2002). He is a member of various international academic institutions and has obtained many awards and prizes for his publications and for his activities as publicist and public speaker as well. The famous literary critic Marcel Reich-Ranitzky, the former head of the "literary quartet" discussing new works of literature on a German TV station said once about his colleague in the quartet, that not only is he the Swiss champion of German literature and literary criticism but also the most prominent Swiss writer. Beyond seminal monographs on topics of German literature, von Matt is a profound observer of Swiss literature and the Swiss societal and political process on which he regularly comments either in oral lectures or written essays, which are widely read and admired. His talent and gift is to address issues of Switzerland as a nation through the lens of literature. He is a sorcerer in revealing the source of Switzerland and the fate of Switzerland as a small nation in the post-World War II period, primarily in relation to the neighbouring European nations and to the world at large. Von Matt's texts are imaginative and rooted in a deep understanding of the role of literature for Swiss culture and for the nation of Switzerland. The texts moreover display a deeply humorous quality.

b) Summary

The surprising and elegant path of the essay starts with observations on the painting of the postal carrier of Rudolf Koller, which simultaneously actualises the dynamics of various speeds of technologic developments. Salient are the differences of speed of the grazing cows and the fleeing calf and the fast moving horses; the little calf is about to become a victim of the speed on the street on the south flank of the Gotthard pass. The simultaneity of different speeds is interpreted by Peter von Matt as a symbolic process. At the same time of the origin of the painting the historian Jacob Burckhardt in Basel taught an annual course on the study of history, which later became the book "Weltgeschichtliche Betrachtungen" (Observations of World History). Burckhardt deals with the dynamics of changes and acceleration in history and defines historic crises as "accelerated processes" (Beschleunigte Prozesse). Burckhardt's statement on this time is a prophecy for our present period of time; the motto of the "accelerated process" is a synonym of global historic crises. When speed is increased there are people left behind. The painting was the present for Alfred Escher, the president of an important regional railway company, which he had to relinquish because he became the head of the building of the Gotthard railway track and tunnel. At the time the painting was made, the building of the tunnel was already underway. The painting was made for a person, whose major intent was to make postal lines outdated by the upcoming modern railways. The symbolism of the painting captured a simultaneous looking forward and backward - dealing with a deep singularity and peculiarity of Switzerland. Peter von Matt looks for this phenomenon in Swiss literature:

No other work of Swiss literature, according to von Matt, had a greater influence on European civilization than the poem of twenty one year old scientist Albrecht von Haller "The Alps" (Die Alpen). The first line of the definitive version contains the key to the significance of the work. The sentence deals with perfectibility, which in the time of enlightenment was at the root of the vision of a step by step embetterrment of the world by an almost linear perspective of the future. Haller develops a paradoxical model of progress as resistance of staying an embetterment by renunciation to change, by a daring assumption of an all-encompassing happiness of the Swiss Alpine people and established the key terms of the century, nature, reason and liberty. In a nutshell, Haller's vision was deeply ideological, which in its geographic extent extended the alpine vision from the Alps to the cities and all of the Swiss Confederation. There was a deep criticism of the historic present. It was founded on the unconditional authorities of Greek and Roman classic writing following the patterns of Virgil and Horatio.

Every culture celebrates its origin. According to von Matt, Haller radicalised this celebration with the help of a vision of a golden century and a fantasy of a good, free and happy people in untouched original nature. Contrary to the United States where the vision of the frontier was a reality of the soul and to Germany in which the Reich was a specific vision of a specific political option, the ideology of Switzerland always was an illusionary superimposition of the social and political reality with the antique legend of Arcadia and the literary practice of Bucolics. According to von Matt, the problem of Switzerland is that the world has believed Switzerland's Arcadic design. The biggest success in the world of Swiss literature, Heidi is a parody of this vision. The United States is the country, which has made the frontier the vision of the dynamics of civilisation in its soul and carries the vision of Aufbruch and Auszug leading to an unlimited game in the world. This vision is contestably directed to the attainment of its goals in the future. If Switzerland as a country has in its soul a vision of a happy land of the fathers, far away from cities and content among themselves not oppressed and not oppressive, every future is a danger.

Von Matt then wanders through Swiss literature and uses a literary lens to look at the societal and political reality of Switzerland. He constantly notes that the origin continuously comes to life in its elements in present time. The fantasy vision collides with modern realities of technics and technology; Rudolf Koller shows the disintegration of societal and political reality in this painting. Von Matt shows that Switzerland is not a special case (Sonderfall), but only has a special fantasy (Sonderphantasie) about its self-chosen origin and destiny. The differences of opinions of Goethe and Schiller on Switzerland are used as evidence and testament in that respect. The consequence of this fact is that, according to von Matt, the political language is dying, isolation being a consequence. The political language of isolation is in a dramatic way sub complex, which leads to an inability to verbalise the issues between Switzerland and its neighbouring countries. Despite its rhetoric effectiveness, its simplicity turns in a simplicity of the perception of the political process and problems. In Switzerland presently different political languages are spoken: Two political languages different from each other just as much as the fantasy vision of an origin of untouched nature differs from the reality. A productive communication between the two positions is impossible. The dream of an accelerated technical civilisation with its worldwide operating economy leads to a marked difference of the literary views of Switzerland.

The issue of the contrast of the political views is again found in more recent Swiss literature. Von Matt walks through works of key Swiss writers dealing with progress in present time. He ends with conclusions that the wandering poets reflect the reality of the "Viatoric" (das Viatorische). This viatoric element is existential in the life of many Swiss writers. He ends with a sketch of typologies of viatoric strategies in present day Swiss literature, which he highlights as follows: the writer leaves Switzerland as a young adult for several years; a writer leaves sometimes indefinitely without losing the contact to Switzerland; a writer constantly travels and comes back from many destinations in the world; a writer leaves for a long and essential part of his life; a writer regularly changes between Switzerland and other domicile; a non-Swiss writer has emigrated as an adult person to Switzerland and stays here; a writer is a child of an emigrant, is born and lives here and writes with a consciousness of his origin.

Von Matt comes to the conclusion that the viatoric cultural life of the Swiss writers better and more adequately reflect the relationship of the country to the world surpassing all the fantasy visions of political theories. Regarding the temporary emigrants as literary writers to Switzerland, von Matt states, that the topics of the equal rank with the topic of Swiss outside Switzerland. The political and artistic culture of Switzerland, according to von Matt, is closely connected to the phenomena of the existence of the polity as nation. Von Matt humorously points to the most successful books Heidi, The Swiss Family Robinson and the Swiss emigrant of General Sutter.

Von Matt concludes the essay by stating the inextricable relation of "origin" and "future" in Switzerland facing the world of today.

c) Text

You can find a scan (PDF) of the original text here:
E_2.34_von MATT_Die Schweiz

[On the state of the Republic]

a) Background

The text at hand is Linder's slightly amended valedictory lecture at the University of Bern in 2009. It is a scientific article, published in the "Zeitschrift des Bernischen Juristenvereins" (publication of the Bernese Lawyers Association) in 2010 with the title "Vom Zustand der Republik" (On the state of the republic). The text at hand adds a political science perspective to this Anthology of texts on the Europeanization on Swiss law and legal culture before and after World War II.

Wolf Linder is an emerite (2009) Professor of Political Science and a Director of the Institute for Political Sciences at the University of Bern. He first studied law (from 1963 to 1968) before working as a lawyer (from 1968 to 1970) in law firms, courts and administrations. From 1969 to 1975 he studied political science at the University of Konstanz and wrote a doctoral dissertation. Between 1973 to 1982 he was a member of the parliament of the Canton of Thurgau, a member of the expert commission of the revision of the constitution of the Canton of Thurgau, as well as an adjunct judge at the Supreme Court of the Kanton of Thurgau (1974-1982). Linder's main areas of research and teaching are the Swiss political system, domestic policy, political decision-making, federalism, communal politics, elections and research.

b) Summary

Linder first highlights the proposition that Switzerland, as a nation in times of globalization, should not lose sight of local and historical dimensions of a nation. In this context, Linder describes the Swiss nation as a republic. Despite the fact that the concept was imported from France, the nation has come into existence bottom up and not top down, a creation of the force of the Swiss people.
The lead question, according to Linder, is, are we at the end of the Swiss paradise? The relative competitiveness of Switzerland in the past twenty years is highlighted and the powerful pressures of globalization and Europeanization, leading to an unexpected dynamic in the country in these past twenty years.

Under the heading, "Die Internationalisierung und Europäisierung der Schweiz" (Internationalization and Europeanization of Switzerland), the text states that Swiss law today primarily has become international law; that globalization has favoured the executive in government and devalued the parliament and the peoples rights ; that globalization is homemade and that globalization has led to growing social diversion and diversity of interests, which are the real reasons for the change of the landscape of the political parties. This development leads to a polarization in the governmental system of "Konkordanz."

The fundamental question according to Linder is, if Switzerland has reached the end of the so-called bilateral path with the EU. The obvious strategy of the EU to move Switzerland's government beyond bilateral agreements would be to accept aquis communutaire which raises the dilemma that taking over EU law without participation can only be overcome by full membership, which is not presently politically doable.

In the full text, Linder postulates a reform of institutions, in particular of the executive and advocates a new dialogue in European policy. The text further postulates a consideration of the true greatness and the real smallness of the country. It ends with a clear statement that direct democracy in a globalized republic is the guarantor that the political structures of the nation will stay in the hands of civil society and its citizens.

c) Text

You can find a scan (PDF) of the original text here:
E_2.35_LINDER_Vom Zustand

[Europe - Keen to experiment?]

a) Background

The text at hand of Bruno Frey can be situated as follows: Frey consistently had a keen interest in describing government and public institutions, including aspects of law, legal institutions and legal culture from the perspective of political economy. Frey always used empirical data as a basis for his analyses. He grew up in this endeavour in the social, political and legal environment of Switzerland. He got used to and is accustomed to look at Switzerland, Swiss government, Swiss economy, as well as Swiss law and institutions through the eyes of a post-World War II internationalized discipline of science of economics, in which the Anglo-Saxon world and English language nowadays dominate. Frey's research has not been done inward but outward looking and has travelled widely. This is evidenced by a number of honorary degrees on the European continent and his present special chair at Warwick University (UK). In the view of the close relationship between Switzerland and the European community, Frey has looked at the basic structure of construction and its later developments in the past fifty years of the European Union from a critical perspective of a political economist. Bruno S. Frey is an internationally known eminent Swiss economist primarily active in the area of political economy.  He is an emerite of the Univeristy of Zurich and presently active at the University of Warwick and at Zeppelin University Friedrichshafen.
Bruno S. Frey was born in Basel, Switzerland in 1941. He was Professor of Economics at the University of Constance from 1970-77, and Professor of Economics at the University of Zurich between 1977-2012. He was named Distinguished Professor of Behavioural Science at the Warwick Business School at the University of Warwick, UK in 2010. Since 2012 he is Guest Professor at Zeppelin University, Friedrichshafen, Germany. He received an honorary doctorate in economics from the Universities of St. Gallen (Switzerland, 1998), Goeteborg (Sweden, 1998), the Free University of Brussels (Belgium, 2009), the University of Aix-en-Provence/Marseille (France, 2010) and the University of Innsbruck (Austria, 2011). He is a prolific writer; the length of the list of publications would go well beyond the space allotted to the biographical information on the authors. He is the author of numerous articles in professional journals and books, including, Not Just for the Money (1997), Economics as a Science of Human Behaviour (1999), Arts & Economics (2000), Inspiring Economics (2001), Successful Management by Motivation (with Margit Osterloh, 2001), Happiness and Economics (with Alois Stutzer, 2002), Dealing with Terrorism - Stick or Carrot? (2004), Economics and Psychology (co-edited with Alois Stutzer, 2007), Happiness: A Revolution in Economics (2008) and Glück: Die Sicht der Ökonomie (Happiness, the view of economic science) (with Claudia Frey Marti, 2010).
Frey is one of the pioneers in changing the private person of reference of the homo oeconomicus in economic science; he is one of the fathers of outward oriented economic science, nowadays known under the heading of "Aussermarktliche Ökonomie" (extra market economy), or "New political economy" or "New institutionalism." He applies his methodological approach beyond the traditional topics of the economy such as politics, art, family, conflicts and history. His approach is interdisciplinary; see in his book Economics as a science of Human Behaviour (1999). He applies an economic starting point and perspective to the analysis of phenomena related to artistic activities in "Arts and Economics." In "Economics" (2000, 2003) he challenges traditional views but also offers an alternative perspective to the sociology of art history. In Happiness and Economics - How the economy and institutions effect human well-being (with Alois Stutzer, 2002) Frey argues, that – curiously – although the economist's discipline has much to do with human well-being, it has shied away from factoring the study of happiness into its work, possibly arguing that the concept is "unscientific." This is the first book to empirically establish the link between happiness and economics - and between happiness and democracy. Frey further analyses - together with Gebhard Kirchgässner - the relationship between the economy and the political system and the effects of self-interest-based behaviour of all decision makers, including the consultants of economic policy (see in this text - together with Gebhard Kirchgässner - Demokratische Wirtschaftspolitik, 3rd ed., 2002).

b) Summary

The text at hand is a non-footnoted analysis published in the Swiss journal "Schweizer Monat, 2013." It is a written transcript of a speech given when Frey was honoured with the Röpke Preis für Zivilgesellschaft des Liberalen Instituts on December, 6th 2012 in Zurich. Frey summarizes the text in an abstract as follows:

"The European unification correctly started with the problem-oriented European coal and steel community. However, the ensuing freedom and free trade projects were exclusively undertaken on the level of nation states. This means that a political frame was chosen, which is largely responsible for the catastrophic wars of the first part of the 20th century.

This contribution proposes an alternative to a European unification based on the nation state. What should matter are the economic and social tasks to be solved. For that purpose, the adequate territorial units must be chosen beyond the existing national borders. The emergence of Endogenous Political Entities (EPE) should be furthered in Europe; the initiative and formation should start from below. To successfully fulfil this task the entities must have fiscal autonomy, i.e. the necessary taxes and expenditures should be determined by the EPE themselves. Such a new orientation of the European unification is immediately possible and unburdens the existing nation states. EPE enable the formation of a dynamic net of political units, corresponding well to the cultural, political and economic variety of Europe."

We consciously chose this text of an internationally known Swiss economist under the heading: impacts from the perspective of neighbouring humanities and social sciences - literature - history - political economy, similar to the text of Peter Häberle "Werkstatt Schweiz": Verfassungspolitik im Blick auf das künftige Gesamteuropa" which suggests for European scientists and politicians within tEurope and in particular within European Union to look to Switzerland as a laboratory of constitutional law regarding questions of constructions of European integration. This text gives European scientists and politicians the possibility to note a Swiss author's analysis and opinion of the basic concept of European integration, which consciously or unconsciously is rooted in his experience of dealing with the Swiss legal and political system from an international economic perspective.

c) Text

You can find a scan (PDF) of the original text here:
E_2.36_FREY_Experimentierfreudiges Europa

The part Bibliographical references is an important feature of the Anthology assisting readers and users in pursuing further research. The body of bibliographical knowledge is an integral part of Swiss law and legal culture as represented in the Anthology.

Texts in the part on Europeanization

This bibliography follows the structure and the sequence of the texts in the part on Europeanization.

Johann Caspar Bluntschli, Organisation des europäischen Staatenvereins, Abschnitt aus Johann Caspar Bluntschli, Die Gegenwart, Band XII, Nr. 9, Paul Lindaulting (Berlin 1878).

The Hertenstein Programme, 22. September 1946 of the Union Européen des Fédéralistes.

Winston Churchill, Speech to the academic youth in Zurich, September 19th 1946.

Denis de Rougemont, Die Schweiz, Modell Europas, 2. Auflage, (Wien and München 1965).

Heinrich Schneider, 'Eidgenossenschaft - Vorbild und Leitbild für die Einigung Europas?' in Thomas Cottier and Rachel Leichti-McKey (eds.), Die Schweiz und Europa, Wirtschaftliche Integration und Institutionelle Abstinenz (Zürich 2010) p. 107-162.

Herbert Lüthy, Die Schweiz als Antithese; mit einem Nachwort des Verfassers, Zürich 1969, ursprünglich in französischer Sprache geschrieben „La Suisse à contre-courant", In Revue Economique Franco-Suisse, 1961, in deutscher Sprache erstmals in Herbert Lüthy „Nach dem Untergang des Abendlandes", Zeitkritisches Essays, Köln 1964; Bericht über die Stellung der Schweiz im europäischen Integrationsprozess vom 24. Ausgust 1988, BBL 1988 III.

Aussenpolitischer Bericht 2000, BBL Nr. 6/2001.

Europabericht 2006 vom 28. Juni 2006, BBL Nr. 35/2005.

Bericht des Bundesrates über die Evaluation der Schweizerischen Eruopapolitik vom 17. September 2010.

Daniel Thürer, 'Europaverträglichkeit als Rechtsargument, zu den Wegen und Möglichkeiten schweizerischer Rechtsanpassung an die neue Integrationsdynamik der Europäischen Gemeinschaften' in Dietrich Schindler et al. Festschrift Dietrich Schindler zum 65. Geburtstag (Basel and Frankfurt am Main 1989) p. 561-582.

Olivier Jacot-Guillarmod, 'Chapitre 1, Introduction' in Olivier Jacot-Guillarmod, Le Juge national face au droit européen, Perspective Suisse et communitaire, (Frankfort-sur-le-Main and Bruxelles 1993) p. 23-32.

Urteil des Schweizerischen Bundesgerichts, 1. Zivilabteilung „Öffentliche Arbeitslosenkasse des Kantons Solothurn vs. Metallbau X GmbH", 4C.316/2002 on March 25th 2003 (BGE 129 III 335).

Daniel Thürer, 'Kolumne von der sog. Europaverträglichkeit, Rechtsgestaltungsprinzip aus Verlegenheit oder Vehikel zur stillen Revolutionierung der schweizerischen Rechtsordnung?' Zeitschrift für schweizerisches Recht (1993) p.91-94.

Daniel Thürer, Europäische Integration: Herausforderung durch eine sich wandelnde Rechtskultur (1999) p.2-7.

Franz Werro, 'Vers un Code européen des contrats?' in François Bellanger et. al (eds.) le contrat dans tous ses états (Berne 2004) p. 341 ff.

Thomas Probst, Die Rechtsprechung des Europäischen Gerichtshofes als neue Herausforderung für die Praxis und die Wissenschaft im schweizerischen Privatrecht (Basler Juristische Mitteilungen 2004) p.225-260.

Matthias Oesch, 'Die Europäisierung des Schweizerischen Rechts' in Thomas Cottier (ed.), Die Eurokompatibilität des Schweizerischen Wirtschaftsrechts: Konvergenz und Divergenz Bibliothek zur Zeitschrift für schweizerisches Recht, Beiheft 50, (Basel 2012) p. 13-39.

Daniel Thürer, 'Gutachten über mögliche Formen der Umsetzung und Anwendung der Bilateralen Abkommen', erstattet an den schweizerischen Bundesrat am 7. Juli 2011, together with Prof. Thomas Burri, p. 1-43.

Schweizerisches Bundesgericht, Stellungnahme über mögliche Formen der Umsetzung und Anwendung der Bilateralen Abkommen, erstattet an den schweizerischen Bundesrat vom 29. Juni 2011, p. 1-4.

Pierre Tercier, 'Le rayonnement international du droit Suisse' Zeitschrift für Schweizerisches Recht (1999) p. 1-9.

Daniel Thürer, 'Deliberative Demokratie und Abstimmungsdemokratie, Zur Idee der demokratischen Gerechtigkeit im europäisch-staatlichen Spannungsfeld' in Daniel Thürer, Kosmopolitisches Staatsrecht: Grundidee Gerechtigkeit, Band 1 (Zürich and St. Gallen 2005).

Peter Häberle, 'Werkstatt Schweiz, Verfassungspolitik im Blick auf das künftige Gesamt Europa' in Peter Häberle, Europäische Rechtskultur (Baden Baden 1994) p. 355-364.

Fritz Ernst, European Switzerland, Historically Considered (Zurich1951) p. 1-72.

Karl Schmid, 'Die Schweiz vor der Europäischen Wirklichkeit'in Max Frisch (ed.),Die Schweiz zwischen Tradition und Zukunft: Ansprachen und Aufsätze aus 25 Jahren (Schaffhausen and Stäfa 1991) p. 55-72.

Peter von Matt, 'Die Schweiz zwischen Ursprung und Fortschritt, Zur Seelengeschichte einer Nation' in Peter von Matt, Das Kalb von der Gotthardpost, zur Literatur und Politik der Schweiz (München 2012) p. 9-93.

Herbert Lüthy, Die Schweiz als Antithese mit einem Nachwort des Verfassers, (Zürich 1969) ursprünglich in französischer Sprache geschrieben, „La Suisse à contre-courant", in Revue Economique Franco-Suisse 1961. in deutscher Sprache erstmals in Herbert Lüthy „Nach dem Untergang des Abendlandes", Zeitkritisches Essays, Köln 1964.

Wolf Linder, 'Vom Zustand der Republik' Zeitschrift des Bernischen Juristenvereins (2010) p. 67-87. leicht überarbeitete Abschiedsvorlesung des Autors an der Universität Bern vom 5. November 2009.

Selection of additional legal texts on Europeanization of Swiss law and legal culture by Swiss authors

This selection is a reprint of an earlier version of Matthias Oesch 'Die Europäisierung des schweizerischen Rechts'; which contained a bibliographical part, the editor follows the manner of citation of Matthias Oesch as a full and exact reprint; the editor expresses his gratefulness for the permission of the author for this reprint.

Baudenbacher Carl (2010), Die Schweiz sollte einen zweiten EWR-Anlauf nehmen, in: Neue Zürcher Zeitung (NZZ)vom 22. Juni 2010, 19; Becker Ulrich (2009), Art. 30, in: Jürgen Schwarze (Hrsg.), EU-Kommentar, Baden-Baden (Nomos Verlagsgesellschaft) 2. Aufl. 2009.

Berthoud Frederic (2007), Die Anerkennung von Berufsqualifikationen zwischen der Schweiz und der EU, in: Daniel Thürer/Rolf H. Weber/Wolfgang Portmann/Andreas Kellerhals (Hrsg.), Bilaterale Verträge I & II Schweiz – EU, Zü­rich (Schulthess Juristische Medien AG) 2007, 249-284.

Biaggini Giovanni (2007), Bundesverfassung der Schweizerischen Eidgenossenschaft: Kommentar, Zürich (Orell Füssli Verlag AG) 2007; Breining-Kaufmann Christine (1994), in: Hans Ulrich Walder/Tobias Jaag/Dieter Zobl (Hrsg.), Aspekte des Wirtschafts­rechts. Festgabe zum Schweizerischen Juristentag 1994, Zürich (Schulthess Polygraphischer Verlag) 1994, 441-461.

Cottier Thomas (2009), Wir sind gewissermassen bereits EU-Passivmitglied, in: Der Bund vom 21. Oktober 2009, 7.

Cottier Thomas/Diebold Nicolas (2009), Warenverkehr und Freizügigkeit in der Rechtsprechung des Bundesgerichts zu den Bilateralen Abkommen, in: Jusletter vom 2. Februar 2009.

Cottier Thomas/Dzamko Daniel/Evtimov Erik (2004), Die europakompatible Auslegung des schweizerischen Rechts. in: Astrid Epiney/Sarah Theuerkauff Florence Rivière (Hrsg.), Schweizerisches Jahrbuch für Europarecht 2003, Bern/Zürich (Stämpfli Verlag AG/Schulthess Juristische Medien AG) 2004, 357-392.

Cottier Thomas/Evtimov Erik (2002), Probleme des Rechtsschutzes bei der Anwendung der sektoriellen Abkommen mit der EG, in: Thomas Cottier/Matthias Oesch (Hrsg.), Die sektoriellen Abkommen EG-Schweiz: Ausgewählte Fragen zur Rezeption und Umsetzung der Verträge vom 21. Juni 1999 im schweizerischen Recht, Bern (Stämpfli Verlag AG) 2002, 179-207.

Cottier Thomas/Herren David (2010), Das Äquivalenzprinzip im schweizerischen Aussenwirtschaftsrecht: von Cassis de Dijon zu Cassis de Berne, in: Astrid Epiney (Hrsg.), Schweizerisches Jahrbuch für Europarecht 2009/2010, Bern/Zürich (Stämpfli Verlag AG/Schulthess Juristische Medien AG) 2010.

Cottier Thomas/Liechti Rachel (2006), Die Beziehungen der Schweiz zur Europäischen Union: Eine kurze Geschichte differentieller und schrittweiser Integration, Basler Schriften zur europäischen Union, Nr. 81 (Europainstitut Basel) 2006.

Cottier Thomas/Oesch Matthias (2002), Einleitung und Übersicht, in: Thomas Cottier/Matthias Oesch (Hrsg.), Die sektori­eIlen Abkommen EG-Schweiz: Ausgewählte Fragen zur Rezeption und Umsetzung der Verträge vom 21. Juni 1999 im schweizerischen Recht, Bern (Stämpfli Verlag AG) 2002, 1-9.

Cottier Thomas/Oesch Matthias (2005), International Trade Regulation: Law and Policy in the WTO, the European Union and Switzerland (Cases, Materials and Comments), Berne/London (Staempfli Publishers Ltd./Cameron May Ltd.) 2005.

Cottier Hrsg., Die Eurokompatibilität des Schweizerischen Wirtschaftsrechts: Konvergenz und Divergenz, Bibliothek zur Zeitschrift für Schweizerisches Recht, Basel 2012.

Epiney Astrid (2005). Zur Bedeutung der Rechtsprechung des EuGH für Anwendung und Auslegung des Personenfreizü­gigkeitsabkommens, in: Zeitschrift des Bernischen Juristenvereins (ZBJV) 2005, 1-31.

Epiney Astrid (2009), How Does European Union Law Influence Swiss Law and Policies?, in: Stéphane Nahrath/Frédéric Varone (eds.), Rediscovering Public Law and Public Administration in Comparative Policy Analysis: a Tribute to Pe­ter Knoepfel, Lausanne (Presses polytechniques et universitaires romandes) 2009, 179-195.

Epiney Astrid (2009b), Das Verbot der Diskriminierung aus Gründen der Staatsangehörigkeit im Personenfreizügigkeitsab­kommen, in: Schweizerische Juristen-Zeitung (SJZ) 2009, 25-32.

Epiney Astrid (2010), Fortschreitende Integration in das Recht der EU, in: Neue Zürcher Zeitung (NZZ) vom 27. Februar 2010.11.

Epiney Astrid/Meier Annekathrin/Egbuna-Joss Andrea (2007), Schengen/Dublin, in: Daniel Thürer/Rolf H. We­ber/Wolfgang Portmann/ Andreas Kellerhals (Hrsg.), Bilaterale Verträge I & II Schweiz – EU, Zürich (Schulthess Ju­ristische Medien AG) 2007, 903-981.

Ernst Wolfgang (2010), Vollharmonisierung und autonomer Nachvollzug, in: Zeitschrift für Europarecht (EuZ) 2010, 2-3.

Felder Daniel (2006), Cadre institutionnel et dispositions générales des Accords bilatéraux II (sauf Schengen/Dublin), in: Christine Kaddous/Monique Jametti Greiner (eds.), Accords bilatéraux II Suisse-UE et autres Accords récents, Bale (Helbing & Lichtenhahn) 2006, 93-117.

Felder Daniel/Kaddous Christine (2001, eds.), Accords bilatéraux Suisse – UE (Commentaire), Bäle (Helbing & Lichten­hahn) 2001.

Filliez Fabrice (2001), Application des accords sectorieis par les juridictions suisses: quelques repères, in: Daniel Felder/Christine Kaddous (eds.), Accords bilatéraux Suisse – UE (Commentaire), Bale (Helbing & Lichtenhahn) 2001, 183-208.

Freiburghaus Dieter (2009), , Königsweg oder Sackgasse? Sechzig Jahre schweizerische Europapolitik, Zürich (Verlag Neue Zürcher Zeitung) 2009.

Gammenthaler Nina (2009), Die schweizerische Rechtsprechung zur Diplomanerkennung im Rahmen des Freizügigkeits­abkommens Schweiz – EG, in: Astrid Epiney/Nina Gammenthaler (Hrsg.), Schweizerisches Jahrbuch für Europa­recht 2008/2009, Bern/Zürich (Stämpfli Verlag AG/Schulthess Juristische Medien AG) 2009, 419-443.

Gentinetta Katja/Kohler Georg (2010, Hrsg.), Souveränität im Härtetest: Selbstbestimmung unter neuen Vorzeichen. Zü­rich (Avenir Suisse und Verlag Neue Zürcher Zeitung) 2010.

Grossen Dieter W./de Coulon Claire (2007), Bilaterales Abkommen über die Freizügigkeit zwischen der Schweiz und der Europäischen Gemeinschaft und ihren Mitgliedstaaten, in: Daniel Thürer/Rolf H. Weber/Wolfgang Port­mann/Andreas Kellerhals (Hrsg.), Bilaterale Verträge I & II Schweiz – EU, Zürich (Schulthess Juristische Medien AG) 2007, 135-187.

Jaag Tobias (2009), Europarecht: Die europäischen Institutionen aus schweizerischer Sicht, Zürich (Schulthess Juristische Medien AG) 2. Aufl. 2009; Jaag Tobias/Zihlmann Magda (2007), Institutionen und Verfahren, in: Daniel Thürer/Rolf H. Weber/Wolfgang POrt­mann/Andreas Kellerhals (Hrsg.), Bilaterale Verträge I & II Schweiz – EU, Zürich (Schulthess Juristische Medien AG) 2007, 65-102.

Kaddous Christine/Jametti Greiner Monique (2006, eds.), Accords bilatéraux II Suisse – UE et autres Accords récents, Bale (Helbing & Lichtenhahn) 2006.

Kälin Walter (2002), Die Bedeutung des Freizügigkeitsabkommens für das Ausländerrecht, in: Thomas Cottier/Matthias Oesch (Hrsg.), Die sektoriellen Abkommen EG-Schweiz: Ausgewählte Fragen zur Rezeption und Umsetzung der Verträge vom 21. Juni 1999 im schweizerischen Recht, Bern (Stämpfli Verlag AG) 2002, 11-37.

Kellerhals Andreas/Baumgartner Tobias (2006), Das “Cassis-de-Dijon”-Prinzip und die Schweiz, in: Schweizerische Juris­ten-Zeitung (SJZ) 2006, 321-330; Kellerhals Andreas/Zäch Roger (2007), Gesamtüberblick, in: Daniel Thürer/Rolf H. Weber/Wolfgang Portmann/Andreas Kellerhals (Hrsg.), Bilaterale Verträge I & II Schweiz – EU, Zürich (Schulthess Juristische Medien AG) 2007, 3-38.

Kley Andreas (2008), Verfassungsgeschichte der Neuzeit: Grossbritannien, die USA, Frankreich, Deutschland und die Schweiz, Bern (Stämpfli Verlag AG) 2. Aufl. 2008 ; Kohler Emilie (2009), Influence du droit européen sur la législation suisse: analyse des années 2004 à 2007, in: Jusletter 31, 2009.

Koller Heinrich (1994), Der schweizerische Gesetzgeber vor der internationalen Herausforderung: Erfahrungen mit “EU­ROLEX” – “SWISSLEX” – “GATTLEX”, in: Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht (ZBI) 1994,241-259; Kraus Daniel/Jaag Tobias/Umbricht Georg C (2009), L ‘Union européenne: Ses institutions et ses relations avec la Suisse, Zurich (Schulthess Medias Juridiques SA) 2009.

Kunz Peter V. (2009), Instrumente der Rechtsvergleichung in der Schweiz bei der Rechtssetzung und bei der Rechtsanwen­dung, in: Zeitschrift für Vergleichende Rechtswissenschaft (ZVgIRWiss) 2009, 31-82.

Maiani Francesco (2010), Legal Europeanization as Legal Transformation: Some Insights from Swiss “Outer Europe”, in: Francesco Maiani/Roman Petrov/Ekaterina Mouliarova (eds.), European Integration without EU Membership: Mod­els, Experiences, Perspectives, EUI Working Paper MWP 2009/2010, 111-124.

Mallepell Roger (1999), Der Einfluss des Gemeinschaftsrechts auf die schweizerische Gesetzgebung 1993-1995, Bern (Stärnpfli Verlag AG) 1999.

Markwalder Christa (2008), Die europapolitischen Optionen der Schweiz, in: Fritz Breuss/Thomas Cottier/Peter-Christian Müller-Graff (Hrsg.), Die Schweiz im europäischen Integrationsprozess, Baden-Baden (Nomos Verlagsgesellschaft), 2008,111-129.

Müller Georg (2006), Elemente einer Rechtsetzungslehre, Zürich (Schulthess Juristische Medien AG) 2. Aufl. 2006.

Nyffeler Franz (2005), Die Anwendung autonom nachvollzogener Normen des EU-Rechts, in: Aargauischer Anwaltsver­band (Hrsg.), Festschrift 100 Jahre Aargauischer Anwaltsverband, Zürich (Schulthess Juristische Medien AG) 2005, 35-55.

Oesch Matthias (2008), Regionale Integration Schweiz – Europäische Union und die Welthandelsorganisation (WTO), in: Fritz Breuss/Thomas Cottier/Peter-Christian Müller-Graff (Hrsg.), Die Schweiz im europäischen Integrationsprozess, Baden-Baden (Nomos Verlagsgesellschaft) 2008, 207-246.

Oesch Matthias (2009), Die einseitige Einführung des Cassis-de-Dijon-Prinzips, in: Anwaltsrevue 11-12/2009, 519-522.

Oesch Matthias (2010), Zulassung von ausländischen universitären Medizinalpersonen zum Markt, in: Tomas Poled­na/Reto Jacobs (Hrsg.), Gesundheitswesen im wettbewerblichen Umfeld, Zürich (Schulthess Juristische Medien AG) 2010, 21-43.

Oesch Matthias (2010), Der Bundesrat sollte uns reinen Likör einschenken, in: Neue Zürcher Zeitung am Sonntag (NZZaS) vom 23. Mai 2010, 19.

Oesch Matthias, Die Europäisierung des schweizerischen Rechts, in Die Eurokompatibiliät des Schweizerischen Wirtschaftsrechts: Konvergenz und Divergenz, Hrsg. Thomas Cottier, Bibliothek zur Zetschrift für Schweizerisches Recht, Beiheft 50, Basle 2012.

Oppermann Thomas/Classen Clous Dieter/Nettesheim Martin (2009), Europarecht, München (Verlag C.H. Beck) 4. Aufl., 2009.

Pahud de Mortanges Réne (2007), Schweizerische Rechtsgeschichte: Ein Grundriss, Zürich/St. Gallen (Dike Verlag AG) 2007.

Peters Anne (2008), Völkerrecht, Zürich (Schulthess Juristische Medien AG) 2. Aufl., 2008.

Rusch Arnold F (2006), Methoden und Ziele der Rechtsvergleichung, in: Jusletter vom 13. Februar 2006.

Schweizer Rainer J. (2006), Wie das europäische Recht die schweizerische Rechtsordnung fundamental beeinflusst und wie die Schweiz darauf keine systematische Antwort findet, in: Astrid Epiney/Florence Rivière (Hrsg.), Auslegung und Anwendung von “Integrationsverträgen”, Zürich (Schulthess Juristische Medien AG) 2006, 23-56.

Schwok René (2009), Schweiz – Europäische Union: Beitritt unmöglich?, Zürich (Rüegger) 2009.

Seiler Hansjörg (2008), Auswirkungen des EU-Rechts auf Nicht-EU-Mitglieder (“de facto Mitgliedschaft” der Schweiz und Liechtensteins?, XVI. Treffen der obersten Verwaltungsgerichtshöfe Österreichs, Deutschlands, des Fürstentums Liechtenstein und der Schweiz vom 18./ 19. September 2008.

Spescha Marc (2010), Urteilsbesprechung “Erweiterte Familiennachzugsrechte für EU-Bürgerinnen: Metock-­Rechtsprechung des EuGH gilt auch im Geltungsbereich des FZA”, in: Aktuelle Juristische Praxis (AJP) 2010, 102-105.

Spinner Bruno/Maritz Daniel (1999), EG-Kompatibilität des schweizerischen Wirtschatlsrechts: Vom autonomen zum systematischen Nachvollzug, in: Peter Forstmoser/Hans Caspar von der Crone/Rolf H. Weber/Dieter Zobl (Hrsg.), Der Einfluss des europäischen Rechts auf die Schweiz. Festschrift für Professor Roger Zäch zum 60. Geburtstag, Zürich (Schulthess Polygraphischer Verlag AG) 1999, 127-138.

Stadelhofer Julie-Antoinette (2008), Grundzüge der Revision des Bundesgesetzes über die technischen Handelshemmnisse, in: Die Volkswirtschaft 10-2008, 4-8.

Thürer Daniel (1989), Europaverträglichkeit als Rechtsargument, in: Walter Haller/Alfred Kölz/Georg Müller/Daniel Thürer (Hrsg.), Im Dienst an der Gesellschaft. Festschrift für Dietrich Schindler zum 65. Geburtstag, Basel (Verlag Helbing & Lichtenhahn) 1989, 561-582.

Thürer Daniel/Hillemanns Carolin (2007), Allgemeine Prinzipien, in: Daniel Thürer/Rolf H. Weber/Wolfgang Port­mann/Andreas Kellerhals (Hrsg.), Bilaterale Verträge I & II Schweiz – EU, Zürich (Schulthess Juristische Medien AG) 2007, 39-64.

Thürer Daniel/Weber Rolf H./Portmann Wolfgang/Kellerhals Andreas (2007, Hrsg.), Bilaterale Verträge I & II Schweiz EU, Zürich (Schulthess Juristische Medien AG) 2007.

Tobler Christa (2005), Cassis de Dijon für die Schweiz: Pur oder on the Rocks?, in: Schweizerische Zeitschrift für Interna­tionales und Europäisches Recht (SZIER) 2005, 567-571.

Tobler Christa (2008), Der Acquis der rechtlichen Verbindung der Schweiz zur EG und EU – Eine unsichere Grösse?, in: Fritz Breuss/Thomas Cottier/Peter-Christian Müller-Graff (Hrsg.), Die Schweiz im europäischen Integrationsprozess, Baden-Baden (Nomos Verlagsgesellschaft) 2008, 11-37.

Vahl Marius/Grolimund Nina (2007), Integration ohne Mitgliedschaft: Die bilateralen Verträge der Schweiz mit der Euro­päischen Gemeinschaft, Zürich (Schulthess Juristische Medien AG) 2007.

Walter Hans Peter (2007), Das rechtsvergleichende Element – Zur Auslegung vereinheitlichten, harmonisierten und rezi­pierten Rechts, in: Zeitschrift für Schweizerisches Recht (ZSR) 2007, 259-277.

Widmer Pierre (2003), Rechtsvergleichung und Gesetzgebung, in: LeGes 2003, 9-17.

Wiegand Wolfgang (1999), Zur Anwendung von autonom nachvollzogenem EU-Privatrecht, in: Peter Forstmoser/Hans Caspar von der Crone/Rolf H, Weber/Dieter Zobl (Hrsg.), Der Einfluss des europäischen Rechts auf die Schweiz. Festschrift für Professor Roger Zäch zum 60, Geburtstag, Zürich (Schulthess Polygraphischer Verlag AG) 1999, 172- 189.

Wüger Daniel (2005), Anwendbarkeit und Justiziabilität völkerrechtlicher Normen im schweizerischen Recht: Grundlagen, Methoden und Kriterien, Bern (Stämpfli Verlag AG) 2005.

Wüger Daniel/Scarpelli Samuele (2006), Die vernachlässigten institutionellen Aspekte der Bilateralen Verträge und die Aushandlung eines Rahmenabkommens, in: Astrid Epiney/Andrea Egbuna-Joss/Markus Wyssling (Hrsg.). Schweize­risches Jahrbuch für Europarecht 2005/2006, Bern/Zürich (Stämpfli Verlag AG/Schulthess Juristische Medien AG) 2006, 287-325.

Wyss Martin Philipp (2007), Europakompatibilität und Gesetzgebungsverfahren im Bund, in: Aktuelle Juristische Praxis (AJP) 2007, 717-728.

Zäch Roger (2007), Cassis de Dijon – Meilenstein des schweizerischcn Wirtschaftsrechts”, in: Rechtliche Rahmenbedin­gungen des Wirtschaftsstandortes Schweiz, hrsg. von der Rechtswissenschaftlichen Fakultät der Universität St. Gal­len (HSG), Zürich/St. Gallen (Dike Verlag AG) 2007, 295-315.

Ziegler Andreas R, (2007), Die De-facto Mitgliedschaft der Schweiz in der EU: Binnen- und Aussenbeziehungen, in: Zeit­schrift für Europarechtliche Studien (ZEuS) 2007, 247-272.

Ziegler Andreas R, (2010), Wirtschaftsvölkerrecht der Schweiz, Bern (Stämpfli Verlag AG) 2010, Zirlick Beat/Stadelhofer Julie-Antoinette (2010), Technische Handelshemmnisse und das Cassis-de-Dijon-Prinzip. in: Tagungsband zur 4, Zürcher Tagung zum internationalen Handelsrecht: Aktuelle Rechtsfragen zum internationalen Vertriebsrecht vom 29. April 2009, Zürich (Schulthess Juristische Medien AG) 2010.

Selection of governmental documents relevant for the relationship between Switzerland and the European Union and for the Europeanization of Swiss law and legal culture

(This selection of documents is an exact and full reprint of a bibliographical annex of an earlier version to Matthias Oesch's text)

Botschaft des Bundesrates vom 16, August 1972 über das Abkommen zwischen der Schweizerischen Eidgenossenschaft und den Europäischen Gemeinschaften, BBI 1972 653.

Botschaft über die Volksinitiative “Gleiche Rechte für Mann und Frau” vom 14, November 1979, BBI 1980 I 69; Bericht des Bunderates vom 24, August 1988 über die Stellung der Schweiz im europäischen Integrationsprozess, BBI 1988 III 249; Botschaft über das Folgeprogramm nach der Ablehnung des EWR-Abkommens vom 24, Februar 1993, BBI 1993 I 805; Bericht über die Aussenpolitik der Schweiz in den 90er Jahren vom 29, November 1993.

Botschaft zu einem Bundesgesetz über den Binnenmarkt (Binnenrnarktgesetz, BGBM) vom 23, November 1994, BBI 1995 I 1213; Zwischenbericht zur europäischen Integrationspolitik der Schweiz vom 29, März 1995, BBI 1995 III191.

Botschaft zur Genehmigung der sektoriellen Abkommen zwischen der Schweiz und der EG vom 23, Juni 1999, BBI 1999 6128; Botschaft zum Bundesgesetz über die Sammlungen des Bundrechts und das Bundesblatt (Publikationsgesetz, PublG) vom 22. Oktober 2003, BBI 2003 7711.

Botschaft zur Genehmigung der bilateralen Abkommen zwischen der Schweiz und der Europäischen Union, einschliesslich der Erlasse zur Umsetzung der Abkommen (“Bilaterale II") vom 1. Oktober 2004, BBI 2004 5965.

Europabericht 2006 vom 28. Juni 2006, BBI 2006 6815.

Gesetzgebungsleitfaden: Leitfaden für die Ausarbeitung von Erlassen des Bundes, herausgegeben vom Bundesamt für Justiz, 3. Auflage 2007.

Bericht des Bundesrates zu den Auswirkungen verschiedener europapolitischer Instrumente auf den Föderalismus in der Schweiz vom 15. Juni 2007, BBI 2007 5907; Botschaft zur Teilrevision des Bundesgesetzes über die technischen Handelshemmnisse und Bericht über zolltarifische Massnahmen 2009 vom 13. Januar 2010.

Botschaftsleitfaden: Leitfaden zum Verfassen von Botschaften des Bundesrates, herausgegeben von der Bundeskanzlei, Version vom 30. Juni 2009.

Selection of essays and texts of important swiss authors, scholars and public individuals on Switzerlands role in Europe

This bibliography is a selection of texts by the editor from his private scientific library

Fritz René Allemann, 25 mal die Schweiz (München/Zürich, 3. Auflage 1977).

Jürg Altwegg, Ach du liebe Schweiz. Essay zur Lage der Nation (Zürich 2002).

Jean François Bergier, Europe et les Suisses, Impertinences d'un Historien (Genève 1992).

Thomas Cottier and Rachel Liechti-McKee (ed.), Die Schweiz und Europa, Wirtschaftliche Interessen und institutionelle Abstinenz (Zürich 2010).

Fritz Ernst, Europäische Schweiz (Zürich 1961).

Tobias Kästli, Die Schweiz, Eine Republik in Europa, Geschichte des Nationalstaates seit 1798 (Zürich 1992).

Hans Küng, Die Schweiz ohne Orientierung, Europäische Perspektive (Zürich 1992).

Herbert Lüthy, Wo liegt Europa? 10 Versuche zu den Umtrieben des Zeitgeistes (Zürich 1991).

Thomas Maissen, Verweigerte Erinnerung, Nachrichtenlose Vermögen und schweizer Weltkkriegsdebatte 1989-2004 (Zürich 2005).

Thomas Maissen, Geschichte der Schweiz (Baden 2010) with commented bibliography, p. 326-333.

Peter von Matt, Die tintenblauen Eidgenossen, über die literarische und politische Schweiz (München and Wien 2001).

Peter von Matt, Das Kalb der Gotthardpost, zur Literatur und Politik der Schweiz (München 2012).

Max Imboden, Helvetisches Malaise (Zürich 1961).

Martin Meyer und Georg Kohler (ed.), Die Schweiz - für Europa?, über Kultur und Politik (Zürich, München and Wien 1999.

Adolf Muschg, Oh mein Heimatland (Frankfurt am Mein, 1998).

Volker Reinhardt, Geschichte der Schweiz (3rd ed., 2008).

Roland Ruffieux et al (ed.), La Suisse et son avenir européen, une analyse des positions suisses face à l'integration de l'Europe (Lausanne 2008).

Gonzague de Reynold, Raconte la Suisse et son histoire (Lausanne 1965L).

Jean Rudolph von Salis, Schwierige Schweiz (3. Auflage, Zürich 1969).

Karl Schmid, Unbehagen im Kleinstaat (Zürich 1963).

Urs Schwarz, Vom Sturm umbrandet: Der Preis der Unabhängigkeit der Schweiz im Zweiten Weltkrieg (Frauenfeld 1981).

Daniel Thürer, Perspektive Schweiz, übergreifendes Verfassungsdenken als Herausforderung (Zürich 1998).

Paul Widmer, Die Schweiz als Sonderfall, Grundlagen, Geschichte, Gestaltung (Zürich 2007).

Paul Widmer, Schweizer Aussenpolitik, von Charles Pictet de Rochement bis Edouard Brunner (Zürich 2003).

Paul Nizon, Diskurs in der Enge. Verweigerers Steckbrief (1970).

Peter Bichsel, Des Schweizers Schweiz (Zürich 1969).

Peter Bichsel, Das ist schnell gesagt (Berlin 2011).

Hugo Loetscher, Lesen statt klettern, Aufsätze zur literarischen Schweiz (Zürich 2003).

Hugo Loetscher, War meine Zeit meine Zeit (Zürich 2009).

Pierre du Bois, La Suisse et le defi Européen, 1945-1992 (Lausanne 1989).

Franz Muheim, Die Schweiz im 21. Jahrhundert (Stäfa 2007).

Klara Obermüller (Hrsg.), Wir sind eigenartig, ohne Zweifel, Die kritischen Texte von schweizer Schriftsteller über ihr Land (Zürich 2009).

The biographies of authors are an important feature of Swiss legal culture, as represented in this primarily text based anthology. They are an essential and integral supplement to the texts.

The sources of the biographies are identified at the end of the text. Some biographies have been penned by the authors.

4.1     Johann Caspar Bluntschli
4.2     Winston Churchill
4.3      Denis de Rougemont
4.4      Heinrich Schneider
4.5      Alfred Kölz
4.6      Peter Häberle
4.7      Daniel Thürer
4.8      Henri Rieben
4.9      Dieter Freiburghaus
4.10    Pierre Du Bois
4.11    René Schwok
4.12    Matthias Oesch
4.13    Olivier Jacot-Guillarmod
4.14    Thomas Probst
4.15    Franz Werro
4.16    Jens Drolshammer
4.17    Michael Pfeifer
4.18    Fritz Ernst
4.19    Karl Schmid
4.20    Herbert Lüthy
4.21    Adolf Muschg
4.22    Peter von Matt
4.23    Wolf Linder
4.24    Bruno Frey