Private Law in a Post-National Society: From Ex Post to Ex Ante Governance

Published in: Miguel Maduro, Kaarlo Tuori & Suvi Sankari (eds.), Transnational Law: Rethinking European Law and Legal Thinking, Cambridge 2014, pp. 307-320

Maastricht European Private Law Institute Working Paper No. 2013/2

12 Pages Posted: 9 Jan 2013 Last revised: 27 May 2015

See all articles by Jan M. Smits

Jan M. Smits

Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)

Date Written: January 8, 2013

Abstract

As a result of increasing economic globalization and technological progress, the power of State-made law to govern relationships among private parties is decreasing. It is argued in this contribution that as a result, private actors increasingly turn towards alternative types of ordering that as much as possible avoid the applicability of (default) State-made law. This trend is not only visible in rule making, but also in enforcement of law and dispute resolution. This development is characterized as one from ex post to ex ante governance of private relationships: the ex post reliance on the law to provide appropriate rules, enforcement and dispute resolution is replaced by a situation in which actors proactively avoid as much as possible the applicability of laws or State produced mechanisms they do not deem fit to govern their relationships.

Keywords: transnational law, alternative ordering, rule making, enforcement, dispute resolution, legality

Suggested Citation

Smits, Jan M., Private Law in a Post-National Society: From Ex Post to Ex Ante Governance (January 8, 2013). Published in: Miguel Maduro, Kaarlo Tuori & Suvi Sankari (eds.), Transnational Law: Rethinking European Law and Legal Thinking, Cambridge 2014, pp. 307-320; Maastricht European Private Law Institute Working Paper No. 2013/2. Available at SSRN: https://ssrn.com/abstract=2197679 or http://dx.doi.org/10.2139/ssrn.2197679

Jan M. Smits (Contact Author)

Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) ( email )

P.O. Box 616
Maastricht, NL-6200 MD
Netherlands

HOME PAGE: http://www.jansmits.eu

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