Global Governance of Trade in the Era of Competing Commercial Legal Orders: Harmonious Fragmentation, Conflicts or Spontaneous Coherence?

7 Pages Posted: 6 Jul 2017

See all articles by Jędrzej Górski

Jędrzej Górski

City University of Hong Kong (CityU) - Department of Asian and International Studies

Date Written: July 4, 2017

Abstract

Sovereign actors have lost the lion’s share of their discretion to regulate terms of trade over the last century. The increased cross-border interactions between private merchants have led to the spontaneous creation of autonomous global order of private commercial contracting (the micro-level) while the growing number of various trade-related intergovernmental arrangements has led to the emergence of the global administrative law (on the macro-level) further standardising the terms of cross-border trade.

En masse, there is a clear case for identifying the odds of maintaining liberal legal trade order combined with high-standards (labour, social environmental etc) in the increasingly geo-politically polycentric world. The time is ripe for proposing a structuralist/institutional analysis of the current dynamics in the global trade governance, and for analysing one by one, which institutions of private and public trade-related legal order (such as private dispute resolution, model laws, technical standards, intellectual property, competition law or rules of government procurement) will most likely be subject to harmonious fragmentation, which will be torn by conflicts between various sovereign actors, and which will remain spontaneously coherent. In other words, the time is ripe for identifying which existing legal institutions (and merchants’ preferences as to specific jurisdictions, fora etc.) have been mostly locked-in thanks to network effects and cannot be easily replaced (like in the case of railway gauges, vehicle propulsion, nuclear reactors, video recorders or keyboard layouts).

One could predict a harmonious fragmentation of various trade customs in the course of the shift from sea to land-trade where new or modified institutions tailored for land-trade-routes would not be in conflict with the existing maritime-law. Conflicts are likely to persist as to the technical standards whereas path-dependence and strong network-effects will likely cement existing globally harmonised intellectual property right for many years to come. However, each legal institution or field of regulation needs its own thorough examination.

Suggested Citation

Górski, Jędrzej, Global Governance of Trade in the Era of Competing Commercial Legal Orders: Harmonious Fragmentation, Conflicts or Spontaneous Coherence? (July 4, 2017). Available at SSRN: https://ssrn.com/abstract=2997222 or http://dx.doi.org/10.2139/ssrn.2997222

Jędrzej Górski (Contact Author)

City University of Hong Kong (CityU) - Department of Asian and International Studies ( email )

83 Tat Chee Avenue
Kowloon Tong
Hong Kong

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