La mondialisation du droit économique :. Vers un nouvel ordre public économique. Rapport introductif

GLOBALISATION OF ECONOMIC LAW: TOWARDS A NEW ORDRE PUBLIC ÉCONOMIQUE. INTRODUCTORY REPORT The introductory report to the second AIDE-colloquium on «Globalisation of Economic Law», which was subtitled «Towards a New ordre public économique», presents, first, economic globalisation as a process of market opening and extension governed by a tight network of international legal rules of different nature. However, such a hierarchical view of globalisation of economic law is faced with conceptual difficulties resulting from the continued dominance of globalisation by (some major) States, from the problems of transposing international rules on to the national territorial level, and from systems frictions and rivalries. In fact, much of legaleconomic globalisation is due not so much to States revising the international trade laws, but to their reorientating internal market law with a view to enhance the attractiveness of domestic markets and competitiveness of domestic (rather than national) industry. At the preceeding colloquium in Rennes (see Rev. int. dr. écon. 2002, No. 2-3) these legal developments had been examined with respect to specific areas of the law, with respect to changes of the law on corporate governance, on the protection of employees and of consumers and with respect to the ways and means of competition. Among the legal concepts emerging from that examination are not only principles of liberalisation and non-discrimination, but also international standards of protection and rules on the distribution of regulatory authority between States, regional organisations of economic integration and global organisations, with the basic authority and political weight still laying with the nation-state. As a result, regulatory competition is widespread and, both a source of sufficient and of innovative market rules. However, as there are no generally accepted legal rules on how to determine the levels of regulation or on how to resolve conflicts between regulatory systems, and as the development of the principles of globalised economic law lacks democratic legitimacy, the concept of globalised economic law still is an elusive one. Thus, only some features of the overall development could be examined and characterized more closely, such as the way States reorientate domestic regulation in view of their loss of territorial control. The necessity of such reorientation, however, is not only due to globalisation, but to many factors (such as societal changes, technological progress, etc.), so that it is difficult to isolate the influence of globalisation, quite apart from the fact that globalisation itself is a complex phenomenon with its own history. Consequently, globalisation evolves on both the national and the international level as a multi-faceted, concomitant, if non parallel development of the law, one of its features being the redirection of national law towards a «globalist» perspective. The objective of the Colloquium of Tunis was to complement the vertical, problemspecific approach of Rennes by an analysis of the horizontal principles of global economic law. To this effect, four general topics had been defined as a matter of structuring the legal framework of economic globalisation. These were : ? the establishment of the rules governing the markets, a topic that was approached on both a general theoretic level (Behrens) and with a view to determine the role of the various national, regional and international levels of regulation (Govaere) ; ? the principles of regulating globalised markets, in particular the role of the rules on market access (Ehricke), the respect of the situation of less developed countries (David), and the protection of diffuse interests and of collective goods (Drexl) ; ? the status, roles and modes of operation of the actors of globalisation, in particular, on the one hand, those of multinational enterprises as regards the legal implication of fragmented production and distribution (Leitao Marques), and of their transfer pricing policies (Snoussi), and, on the other, those of the members of a «civil society» with its claim to fill in democratic deficits of globalisation (Boy) ; ? the implementation and activation of globalisation of economic law, in particular the problems of transforming principles of market liberalisation that result from trade negotiations (i.e. from reciprocal dealings) into normative principles of constitutional value (Bourdon) 2 , as well as the problem of redefining the role of public authorities as guardians of diffuse and/or collective interests, and of guaranteeing adequate access to the court system (Ziller).