What Europeans Can Learn from an Untold Story of Transjudicial Communication: The Swiss-Turkish Experience

Courts and Comparative Law, Mads Andenas and Duncan Fairgrieve (Eds.), OUP - Oxford 2015, Chapter 37, 2015

Posted: 15 Sep 2014 Last revised: 25 May 2016

Date Written: September 12, 2014

Abstract

The role of the use of foreign law in the courts is shaped by the legal context in which it takes place, and by the structure of the legal system it serves. Swiss courts have considered foreign law on numerous occasions when filling a gap in the current domestic law, or when interpreting existing domestic rules. A study based upon 1,541 instances has shown that slightly more than 10 per cent of the decisions refer to foreign law (notably to German, but also to French, Austrian, Italian, British, American, Belgian, Dutch, and even to Swedish and Turkish law). In the same way, Swiss law is a source of inspiration for foreign legislatures and courts. The accessibility of Swiss private law to ordinary citizens, its solutions (which are pragmatic rather than conceptual), and the wide discretion given to judges as well as some additional historical facts and circumstances played a key role in the adoption by the Turkish legislature of the Swiss civil codes and, to some extent, of the Swiss rules of international arbitration.

Keywords: comparative private law, Europeanisation

JEL Classification: K10, K40

Suggested Citation

Büyüksagis, Erdem, What Europeans Can Learn from an Untold Story of Transjudicial Communication: The Swiss-Turkish Experience (September 12, 2014). Courts and Comparative Law, Mads Andenas and Duncan Fairgrieve (Eds.), OUP - Oxford 2015, Chapter 37, 2015. Available at SSRN: https://ssrn.com/abstract=2495349 or http://dx.doi.org/10.2139/ssrn.2495349
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