German and European Ordo-liberalism and Constitutionalism in the Post-war Development of International Economic Law
31 Pages Posted: 24 Apr 2020
Date Written: 2020
This contribution discusses the regulatory approaches of German-speaking countries to the design of European and international economic law since World War II. The US initiatives for the 1944 Bretton Woods Agreements and the 1947 General Agreement on Tariffs and Trade were driven by neo-liberal, multilateral approaches prioritizing rules-based liberalization of market access barriers, deregulation, privatization and ‘financialization’ of markets as spontaneous information, coordination and sanctioning mechanisms enabling private economic actors to pursue their economic self-interests. By contrast, the post-war German and European ordo-liberalism and the ‘Virginia School’ of ‘law and economics’ perceived markets as legal constructs, which cannot maximize general consumer welfare without legal limitations of ‘market failures’, ‘governance failures’ and ‘constitutional failures’. The federalism and constitutional protection of common market freedoms inside Austria, Germany and Switzerland contributed to their promotion of ordo-liberal, constitutional approaches also in their external economic policies aimed at creating and progressively developing Europe’s micro-economic ‘common market constitution’ not only inside the European Union, but also in the broader ‘European Economic Area’, the European Free Trade Area and the EU’s common commercial policies. The worldwide WTO legal and dispute settlement system was influenced both by neo-liberal US initiatives as well as by ordoliberal European proposals (e.g. for the design of the WTO dispute settlement system). The current US assault on the WTO Appellate Body system is driven by neo-liberal interest group politics and hegemonic mercantilism by the US Trump administration.
Keywords: economic constitutionalism, international economic law, law and economics, ordo-liberalism, neoliberalism, EU law, WTO law
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