Seeking a balance between law, the economy, and personal life choices

Uncommon career paths and equal opportunities, constitutional rights and free (and responsible) enterprise: Federica De Rossa, Senior assistant professor in Law of economics and Director of the USI Law Institute, lecturer at the University of Lucerne and Deputy judge at the Swiss federal supreme court in Lausanne, shares her views as an academic dealing with subjects of economic law, human rights, sustainable enterprise, and gender quotas.

The career path of Prof. De Rossa is somewhat uncommon for an academic: after obtaining a degree in Law from the University of Fribourg and beginning her academic career as a teaching assistant and researcher, she shifted to the legal practice as a trainee and passed the Swiss Bar examination. After the birth of her first son, she earned her PhD in Law (at the University of Fribourg) – with a dissertation that won the Vigener award in 2010 – pursuing thereafter a career in academia as a postdoctoral researcher at USI Università della Svizzera italiana, where today she is a Senior Assistant professor (tenure track) in Economic Law at the Faculty of Economics. In 2014, Prof. De Rossa was appointed Deputy Judge at the Swiss Federal Supreme Court in Lausanne (Public law division) and, in 2018, she became Director of the Law Institute at the USI Faculty of Economics.

Professor De Rossa, would you consider your career choices as something to take example from, also in terms of work-life balance?

I believe they could. Indeed, my career path as an academic is less common and non-linear, when compared to the standard cursus for attaining professorship. But looking back I wouldn’t change anything I did. In fact, the decision to pursue a career in academia at a later stage turned out rather well for me, because I managed to follow my interests without giving up on personal life choices and, at the same time, I gained the professional experience – as a lawyer, as a member of a Federal commission, and currently as a Deputy federal judge – which was pivotal for my academic activity. I believe that similar career paths, which are actually quite common for women, can encourage young girls with professional ambitions. It is important for them to be aware that today it is still very difficult for a woman, and even more so for a mother, to get ahead in her professional life, especially in academia. But we must also say to these ambitious young ladies that they can succeed by defining their own paths, by making detours and taking the extra time needed to reconcile everything. What really matters is to have always a clear goal and to pursue it with determination, believing in their abilities even in the most difficult moments.

At USI, you are also a member of the Equal opportunities’ delegation. Why is this a subject of academic interest to you?

The Delegation plays an important role in fostering the cultural change that is needed to increase the number of female professors, which at USI is still very low when compared to other universities in Switzerland. One of the actions taken by the Delegation is to identify unconscious gender stereotypes, known also as “implicit bias”, when recruiting new professors. Our selection committee members are in fact required to bring out any such bias which may interfere with the defined selection criteria for recruitment and with the candidates' presumed merits, and which are in contrast with the meritocratic and egalitarian principles advocated by our university. We strive to avoid standard evaluation methods, because some of the criteria considered essential are actually built on typically male criteria of success and sometimes exclude very valid female candidates. I believe that this approach is necessary not only in the academic domain, but generally also in society, and especially in the political environment and in the business world. Indeed, the private initiative has not yet been able to provide adequate space for women in top positions on its own. After all, it will never be men who change the narratives, and actually the more you move up the ranks, the more subtle the discrimination becomes. This issue has also recently become a topical issue of my academic research. I believe there is a need for more decisive legislative action to guarantee that the constitutional principle of gender equality is effectively adopted (also) in the business world. Lawmakers are still too hesitant and I reckon we should introduce mandatory gender quotas in corporate law designed to improve the position of women in senior management positions. Although I have always been rather reluctant to the concept of quotas, I believe today that they represent the only way to achieve genuine gender balance and to exploit the potential of women even in management roles, thus allowing them to change, from the inside, the methods, strategies, sensitivities and visions of society. Women will then be able, with their merits, to prove that they have earned the positions they occupy.

Since the late 1970s, deregulation and laissez-faire economic policies in the industrialised world have led to the current globalised economic system, which has created much for many but also many important side effects, namely in terms of social divide. Lawmakers around the world have been called upon to make amends, but the business world generally does not appreciate the increased levels of regulation, which is generally seen as a threat to the principle of economic freedom. At the same time, business leaders in developed countries are shifting their priorities from mere shareholder value to more sustainable entrepreneurial models, which include also increased attention to gender and diversity. How can we dismiss the perception that economic freedom and the need to abide by the rule of law are in contrast?  

I teach my students, mainly in economics, that law should not be seen as an obstacle (as a cost, in economic terms) to our market economy, but it should be considered rather as a tool that enables it. Our constitution is based on economic freedom, a fundamental right that guarantees each individual the freedom of choice for a profession and related practice, in a context of increased international openness (free trade, free movement of persons). But the constitution guarantees also other fundamental rights and values, aimed at ensuring socially sustainable economic development, also for future generations. Competition does not have a pre-eminent position over these rights and values. Thus, I describe to my students the market economy as a realm in which all economic actors can expect a high degree of freedom (i.e. to establish contractual commercial relations, conduct international trade, define their own organisation and governance, etc.), but at the same time hold many responsibilities, also of an ethical nature, towards society. Today, it appears that where they do not voluntarily assume such responsibilities, the legislator intervenes to encourage compliance through indirect measures, if not to impose them directly. This is the case, for example, of the introduction of female quotas in the boards of listed companies, which is currently being examined by the Federal Parliament; or of the measures introduced following the vote on the Minder initiative "against abusive remuneration", which gives shareholders the power to refute disproportionate compensation policies and which prohibits important forms of remuneration such as the generous golden parachutes that managers gave themselves after leaving their company.

Business Roundtable, the non-profit association based in Washington, D.C. whose members are CEOs of major U.S. companies, announced in August the release of a new “Statement on the Purpose of a Corporation” which claims that companies must invest in employees and deliver value to customers, and lead their companies for the benefit of all stakeholders, including suppliers and communities as a whole. The initiative has made waves in on both sides of the Atlantic where, in the financial sector, environmental, social and governance (ESG) elements are becoming the three central factors in measuring the sustainability and ethical impact of an investment in a company or business. Do you think that concepts of Corporate Social Responsibility (CSR) and ESG are finally going to be put into practice? Has the business world understood how these can, ultimately, translate into long-term benefits for share- and stakeholders?

The voluntary application by companies of principles of corporate governance that ensure long-term sustainability of their businesses and that take into account the effects of their activities in society has tended to fail. In the light of this, lawmakers (through hard law), or international organisations (through recommendations or other forms of soft law), are taking increasingly effective action to encourage companies to manage their organisation and activities in accordance with ethical principles. For instance, companies are being asked to adopt occupational health and safety standards throughout their whole supply chain, to introduce effective internal anti-corruption measures, to apply principles of fair competition and consumer protection, and to avoid tax optimization practices. In Switzerland, the popular initiative on Responsible Business – that will be soon voted upon – goes precisely in this direction. In addition, the Federal government and a number of Cantons are setting the good example when acting as a responsible employer, investor, purchaser or owner of companies (state-owned enterprises). In the realm of public procurement, for example, Federal and Cantonal contracting entities are increasingly acting as a “responsible buyer” by choosing the bidder that better complies with a number of social and environmental requirements or standards (e.g. equal pay, fair wages, reduced energy and water consumption, appropriate waste management, fair trade certifications). As the criterion of lowest price will no longer be the determining one for awarding contracts, businesses have an increased incentive to behave in a socially and environmentally sustainable manner.

[The original version of this article was published by Ticino Welcome nr. 64 (December 2019-February 2020), pages 26-29.]