L'établissement des règles du marché mondial :

Abstract

THE ESTABLISHMENT OF RULES FOR A GLOBAL MARKET : FROM OPENING TERRITORIAL MARKETS TOWARDS COMMON RULES FOR GLOBALIZED MARKETS The elements of a « legal order » for the « world market » consist of private law rules as well as public law rules and rules of international law to the extent that these rules are pertaining to international economic transactions. All these rules together are necessary for the establishment of an institutional framework for a globalised market. The design of this institutional framework must be derived from the functional properties and requirements of a market economy. A market system requires, first of all, the existence of private law rules (most importantly relating to property and contracts) that make economic transactions among market participants possible. Private laws are generally part of national legal orders. However, due to the rules of private international law (conflicts of law rules), national rules of private law also form the basis for international (transborder) transactions. A market system requires, secondly, rules relating to the correction of market failures (such as collective goods, external effects, or asymmetries of information). Such rules (like sanitary laws, environmental or consumer protection laws) are typically part of national public (administrative) legal systems and they imply State interventions into international economic transactions. To the extent that such interventions are limited to the correction of market failures, they are supportive of the establishment of market economy, although on a global level, differences between national regulations may nevertheless operate as barriers to international economic transactions. Another type of public law rules is deliberately designed to establish such barriers in order to protect domestic producers against foreign competition. Such rules are not supportive, but rather destructive of establishing a globalised market, because they imply State intervention for the restriction of international economic transactions. Thirdly, the establishment of a global market system requires the opening of national markets and their integration into a worldwide market. This implies the restriction of State interventions in international economic transactions. Such restrictions are the main objective of international economic law rules. They reflect the self-limitation of sovereign nation-states for the benefit of international economic exchange based on private law rules. This self-limitation therefore enhances private legal subjects to use their freedom of contract internationally. Since the implementation of all the different sets of legal rules forming the institutional framework for the world market is based on the executive powers of States, the establishment of a world market is far from removing the powers of nationstates. The contrary is true : like any market economy, also the world market is dependent upon the (proper) exercise of State powers for the enforcement of the rules of law which are part of its institutional framework. The opening or closing of national markets may be interpreted in terms of a political power play within nation-states between those who profit and those who lose by either strategy. From an economic point of view, normally the consumers benefit most from an opening of markets, because their range of product choices is increased and their purchasing power is enhanced due to international price competition. Those who may lose from an opening of markets are domestic producers whose products are less competitive than foreign products. Which group prevails, depends on the political process. Since producers are much less numerous than consumers, they are much better able to organize political pressure which may drive governments towards protectionist trade policies at the expense of consumers. Such pressure can only be curbed by international legal commitments. This explains the existence of a mutually agreed body of international economic law rules (especially within the framework of the WTO) restricting nation-states’ powers to close their national markets for goods or services. There is no equivalent body of rules (and no equivalent to the WTO), however, as far as global financial and capital markets are concerned. Here we observe that nation-states open their markets unilaterally, because global de-regulatory competition forces them to do so and because the internal balance of economic interests that determine the political power play in nation-states is just different.