Privatizing the Economic Constitution- Can the World Market Reproduce its Own Institutional Prerequisites?

Herrmann/ Krajewski/ Terhechte (eds.), European Yearbook of International Economic Law (EYIEL) Vol. 4 (2013), p. 201-221

Osgoode CLPE Research Paper No. 11/2012

19 Pages Posted: 12 May 2012 Last revised: 21 Oct 2014

See all articles by Gralf-Peter Calliess

Gralf-Peter Calliess

University of Bremen - Faculty of Law

Jens Mertens

University of Bremen - Faculty of Law

Moritz Renner

University of Mannheim - Faculty of Law

Date Written: May 11, 2012

Abstract

Markets are not a natural phenomenon but depend on a complex set of institutions. Commercial law enables and facilitates at-arm’s-length market exchange. Competition law regulates freedom of contract in order to protect it from self-abolition. On the domestic level, these core pillars of the economic constitution have been safely installed by the modern nation state. However, on the global level the situation is different. Since in contrast to domestic trade, cross-border transactions are not conducted “in the shadow of law” but largely depend on private governance-mechanisms, the crucial question is whether the world market is able to reproduce its own institutional prerequisites. Consequently, we assess the potential effects of this privatization of commercial law on competition policy, namely the potential abuse of market-dominating positions resulting from a rise in the level of vertical integration on the world market as well as the potential of contracting around the ban on cartels by choosing arbitration rather than litigation as a means of commercial dispute resolution.

Keywords: private law, contract enforcement, economic constitution, cross-border contracts, competition policy, vertical integration, international arbitration, private ordering, antitrust

Suggested Citation

Calliess, Gralf-Peter and Mertens, Jens and Renner, Moritz, Privatizing the Economic Constitution- Can the World Market Reproduce its Own Institutional Prerequisites? (May 11, 2012). Herrmann/ Krajewski/ Terhechte (eds.), European Yearbook of International Economic Law (EYIEL) Vol. 4 (2013), p. 201-221; Osgoode CLPE Research Paper No. 11/2012. Available at SSRN: https://ssrn.com/abstract=2056625 or http://dx.doi.org/10.2139/ssrn.2056625

Gralf-Peter Calliess (Contact Author)

University of Bremen - Faculty of Law ( email )

Universitaet Bremen
Fachbereich Rechtswissenschaft
D - 28353 Bremen
Germany
+49-421-218-66207 (Phone)
+49-421-218-66212 (Fax)

HOME PAGE: http://www.handelsrecht.uni-bremen.de/

Jens Mertens

University of Bremen - Faculty of Law ( email )

PO Box 330440
Bremen, 28334
Germany

Moritz Renner

University of Mannheim - Faculty of Law ( email )

68131 Mannheim
Germany

HOME PAGE: http://www.jura.uni-mannheim.de/renner

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