LIECHTENSTEIN Trends and Developments Contributed by: Michael Nueber and Philipp Konzett, Nueber Konzett Attorneys-at-Law
and adapting these laws to the country’s specific needs. The Supreme Court also develops new legal standards and fills legislative gaps. Without it, legal progress could stagnate, and ambigui- ties in the law could arise. Critics are concerned that the new High Court would handle both factual and legal reviews, potentially overburdening the court and compro- mising decision quality. Experts fear that judges will have less time to develop new legal solu- tions if they must focus on both aspects of cas- es. Furthermore, the abolition of the Supreme Court may not sufficiently address conflicts of interest. Rather than eliminating the court, intro- ducing stricter rules for part-time judges could achieve the same goal. A possible solution could be prohibiting practising lawyers from serving as judges or appointing more foreign judges to avoid conflicts of interest – similar to the strategy of other micro-states like Monaco. In the proposal, it was argued that many signifi- cant legal questions in Liechtenstein are resolved by Austrian or Swiss courts anyway, which would then simply be followed by Liechtenstein courts, rendering the role of the Supreme Court less important than usually perceived. However, experts disagree. While Liechtenstein’s courts do indeed look to neighbouring countries for guidance – and are required to by case law – the Supreme Court must still make independ- ent decisions to meet the country’s unique needs. In the past, the Supreme Court has led legal developments in areas such as the busi- ness judgement rule, procedural deadlines, and Liechtenstein’s distinctive legal forms, including foundations, establishments, (continental) trusts and registered business trusts (Trust reg.). Among the most vocal critics of the proposed reform is the Liechtenstein Bar Association
( Liechtensteinische Rechtsanwaltskammer ). The Bar Association strongly opposes the abolition of the Supreme Court, arguing that it would threat- en legal certainty and undermine the country’s economic attractiveness. It emphasises that a three-tier system is the European standard, and the Supreme Court plays a vital role in ensuring legal certainty and advancing the law. The Bar Association also warns that the reform could exacerbate the shortage of legal profes- sionals. The government’s hope that the reform would expedite court proceedings is also chal- lenged, with the Bar Association pointing out that delays most commonly occur at the Court of First Instance, where cases can take two to five years to resolve, compared to three to five months at the Supreme Court. Amendments to the proposal in response to criticism In response to widespread criticism, the pro- posal was amended in an attempt to address concerns. In May 2024, the proposal included new changes to the Constitution and the Court Organisation Act as part of the judicial reform. One key aspect is the creation of an “enhanced senate” at the level of the new High Court, responsible for handling significant or novel legal questions, thus replacing the need for a third judicial instance. These enhanced senates would consist of five judges, including both full-time and part-time judges, and would provide legal opinions on critical questions of law. This mechanism aims to ensure consistent and reliable application of the law. The Bar Association has criticised this as an untested experiment, potentially leading to legal uncertainty, arguing that it may take years for
818 CHAMBERS.COM
Powered by FlippingBook