The Fairness Principle in Competition-Related Economic Law

Abstract

Fairness appears as the guiding paradigm of regulating the digital economy. Yet, its exact meaning has always remained dubious. The present article, which summarizes key insights of my PhD thesis “Fairness als Rechtsprinzip”, aims at filling this theoretical void by exploring to which extent Fairness phenomena in competition-related economic law (understood as comprising unfair competition, antitrust, IP, trade secrecy, contract, anti-discrimination, and data law) may be united under an overarching legal principle. Departing from the classic Fairness-defining notion “honest commercial practices” enshrined in Art.10bis para 2 of the Paris Convention for the Protection of Industrial Property, the article overall suggests to (re-)construct the Fairness principle as a normative bridge between law and society. Its task, viewed against the backdrop of a legal pluralist analysis of sociological disruptions in the globalised digital economy, is to normatively moderate the interplay of state and non-state rules of market order towards the common good from the perspective of the state.

Keywords: Fairness; Legal Principle; Legal Pluralism; Meta- Regulation; Regulated Self-Regulation; Private Ordering; Honest Practices; Lex Mercatoria; Code Is Law; Corporate Social Responsibility; Corporate Digital Responsibility; Digital Economy; Artificial Intelligence; Paris Convention