pour lire ce Document de Travail en Français↗️cliquer sur le drapeau français
► Full Reference: Frison-Roche, M.-A., Globalization from the point of view of Law, working paper, May 2017.
🎤 This working paper initially served as a basis for a synthesis report made in French in the colloquium organized by the Association Henri Capitant in the International German Days on the subject of "Le Droit et la Mondialisation" (Law and Globalization).
📝 it serves as a second basis for the article (written in English, with a Spanish Summary) to be published in the Brezilian journal Rarb - Revista de Arbitragem e Mediação (Revue d`Arbitrage et Médiation).
► Summary of the Working: Globalization is a confusing phenomenon for the jurist. The first thing to do is to take its measure. Once it has been taken, it is essential that we allow ourselves to think of something about it, even if we have to think about it. For example, on whether the phenomenon is new or not, which allows a second assessment of what is taking place. If, in so far as the law can and must "pretend" to defend every being, a universal claim destined to face the global field of forces, the following question - but secondary - is formulated: quid facere? Nothing ? Next to nothing ? Or regulate? Or can we still claim that the Law fulfills its primary duty, which is to protect the weak, including the forces of globalization?
read the Working Paper below⤵️
Globalization is a confusing phenomenon for everyone. It is probably even more so for the jurist, for whom words are normative acts and who stumbles on the definition of "globalization"!footnote-927.
Perhaps this is why lawyers are so impressed by the argument of globalization, often used to argue that the time of imperative laws would be over, or that Roman law may well turn in its grave, the train of Globalization would pass over the corpse of the French Civil Code and codifications. The more mysterious the notion is, the more names it has, the more it sets back the jurist of good tradition, globalization being as upgraded by the fact it is an English term, used liked that, even in texts in another language, this zest of English increasing to the globalization phenomenon.
If we take up the wave, it is appropriate first of all to measure what is Globalization from the point of view of Law (I). To do so, it is only relevant if the usefulness, if not necessity, is posed to think about this movement of globalization. There is a legal imperative to formulate an assessment if it is posited that the Law has the mission of protecting every human being, a concern that is borne by the Law. Then, because Law is also a technique, we can ask ourselves the question of Quid facere? But in practice it can not be said that under the pretext that the field of the world forces is very powerful and that the Law appears to be very weak in its claims to protect every human being in its dignity, it would for this reason disappear from the World stage (II).
It is at the foot of the wall of Globalization that today we can measure the claim of the Law to defend humanity.
I. TAKING THE MEASURE OF GLOBALIZATION FROM THE POINT OF VIEW OF LAW
The first measure to be taken is about Globalization, presented as a new phenomenon. But is Globalization really a new phenomenon? new or not (A).
A. TAKING THE MEASURE OF GLOBALIZATION FROM THE POINT OF VIEW OF LAW AS A PHENOMENON NEW OR NOT
We are constantly saying that Globalization is a completely new phenomenon. But don't we think that because we live now, and it is so pleasant to believe we live something the precedent people have never known? (1) By observing the different countries, it appears that those countries which by their history are "open" have shifted from Comparative Law to Global Law (2), while "closed" countries are struggling against a Global Law perceived as a sort of aggression (3). Faced with this kind of respiration, several legal systems are "carried" by the wave (4).
1. The taste of feeling in the new clothes of Globalization
Perhaps we are suffering from Globalization, as with many other things, an "optical illusion", linked to the fact that one always believes to belong to a living generation of the "radically new", which rejects the previous generations in the tomb of the radically outdated and allows us to avail ourselves of a revolution, an exciting phase that transforms into a hero whoever lives it.
The "feeling of novelty" is shared by many lawyers, who readily assert that nothing is as before, that everything must be rethought. Precisely, they are the ones who will rethink the world, since the world is now globalized and they are its center!footnote-776.
The modesty of the Law, which is never but a reference to the modesty of the jurist, would then no longer be adequate in the surge of the world which rushes on the national legal systems. The "global jurist" who understands the "law of the world" would be the new master. Very concretely, the international arbitrator would be the very immodest figure of globalization seen from the Law.
We measure what this "feeling of novelty" has of childishness, perhaps lulled more by a new vocabulary than by new phenomena. A vocabulary forged in the English language and it is in "Soft Law", an expression used even in the other languages, Globalisation taking the form of a long river of discursive Law, sweet, expert, interminable. In this stream of jurisprudence, which flows from all sides, it is easy to understand that the philosopher who is now evoked is more Heraclitus than Plato.
But the examination of national laws shows that the phenomenon does not seem so "new". Hence, one could not divide Law and History, Law and Geography, and the new vocabulary that one finds from study to study would recover a reality anchored in time and soil. For measuring it, it is necessary to distinguish between countries which are by their history and their geographical situation open or closed.
2 ° "Open" countries: from Comparative Law to Global Law
There are countries "accustomed" to Globalization, because "the third" (under the form of foreigners) has crossed its borders and has settled there for a long time. Thus the countries that were invaded like Brazil, the countries which welcomed the foreigners at the time when they were born themselves like Canada, the dependent countries or "back" to a giant like Canada vis-a-vis the United States Lebanon emerged as a hub of roads and commerce, have always mixed legal systems as well as peoples.
These countries historically "open" because undoubtedly some because cut off by the mechanism of colonization!footnote-777 have welcomed foreign Laws. When the phenomenon of Globalization came into being in the legal form of the American global norms of corporate governance and control of investments, that specific new Law entered those countries as well as at home. Brazilian law is an example of this, since the technique of Comparative Law in these financial matters appeared immediately unnecessary, since the passage was directly linked to a worldwide Law, incorporated without any need to refer to the local legal system.
The king is dead, long live the king ! In these open countries, the World is at home. There is a better understanding of the agility of Brazil and its lawyers in litigation before the WTO. But this is true only for the global standards of free trade, finance and companies governed by them (for example listed companies) or for the environment!footnote-778. When the case is about another question, for example the situation of foreigners, then Politics takes control of the rules and shapes them.
3° "Closed" legal systems: from Comparative Law to the reaction to the "aggression"
Legal systems that have not experienced the long disturbance of domination, or even those which have practiced it!footnote-779, are "closed" and invoke at length their "sovereignty"!footnote-780, for example normative or jurisdictional "sovereignty"!footnote-775. France is the paragon of that. Global norms, for example accounting norms, are felt as a movement of illegitimate and sustained conquest, culmination of a stratagem in which the American or British interests are never far away.
Global Law, which is expressed through Financial Law!footnote-548, is felt and presented as a redundancy of dependence: the State which was once autonomous, even dominant and often conquering, becomes financially dependent, and this is done by instruments legally conceived by a specific corpus of legal rules and a specific methodology, are not familiar, but look like British and Common Law!
In this image of the conqueror-conquered, the French sprinkler-watered man said he would be tempted to rename the French Code Civil "Code Napoleon" (which was the first name of the French Civil Code) and to unmask what would be the enemy, not so much a competitor in the "market of Law", but rather an enemy insofar as it would express market values contrary to those of countries of Continental Law, which would express "real values".
The technique of Comparative Law is then again vaunted as an enrichment of the Law, but in the different purpose, for a legal system which remains resolutely national, and whose force is deployed in classical diplomatic relations. This is only possible if a political force bears the Law.
4. Legal systems "supported" by Globalization
In the wave of Globalization, the winners are well known, namely the United States and the United Kingdom. Certainly, from the point of view of Law, the question of the hen and the egg arises. There is a dispute as to whether Common Law law is transported in the baggage of economic and financial domination or whether it forms a package, in the same way that one disputes to know if this dominion results from a miraculous suitability of the British and American Laws built on cases and which are thus presented as "pragmatic", intervening a posteriori and that are thus presented as leaving more room for initiative, being thus a source of prosperity, or if the method of Economic Analysis of Law and the criteria of classification were constructed in such a way that American and British Laws won the tail of Mickey, this character for whom the duration of protection of the artistic creation was lengthened in the US. No one can say it, but one can argue one way or the other. By your choice, following your interests.
Instead, let us talk about the legal problems created by such propulsion. Two can be discerned.
The first problem concerns the European Union. Indeed, even if the Brexit has revealed the UK's lack of attachment to the European Union, the links will remain strong. These links are in any case desired and maintened by banks and financial institutions. Moreover, the heart of the European construction is now the euro zone, since the Banking Union, built by Community regulations of 2010 and then by Community texts of 2014, is in charge of preventing the financial and economic collapse of the European Union. However, the United Kingdom is not a legal part of this Union and its people have decided so. But if we consider that British Law would be the world source of what might be the new GlobalLlaw, itself primarily expressed by a technical financial Law built by British banks and law firms!footnote-781, which penetrates the heart of an integrated European monetary area of which this country is now not legally a major member, this is a political and systemic problem.
The second problem arises from the fact that the source of this new Global Law is not really the United Kingdom, not even London, but the very specific district, the City, its banks, its law firms and its auditors, notably building in a large part the International Accounting Standards (IASB).
However, the City is not a country, it is not a legal system, it is a "Small Word", both a closed circle around its clubs and its traditions, diffused globally by a network effect. The phenomenon described otherwise for digital is thus found in legal globalization: a power exerted by a very few, a happy few, over all others!footnote-782. This "Small World" lives in London or where it meets and speaks English but is not necessarily of British nationality. Its common point is more technical competence: finance, digital and arbitration. Money is the correlation of technical competence and it speaks of fees and tax attractiveness, a global discussion in a circle that is both narrow and open.
Is this all new? The English clubs are so old... Yet when we talk about "legal innovation", phrase that is sold so well to students, they are presented with virtual centers of financial law or interactive courses of intellectual property Law in order to protect the new richness. But, is it so new ?
Indeed, everyone sees it, there is no need of a demonstration: the first new global fact is constituted by the first place of the moneyfootnote-783. Money could do everything; without money, there would be nothing. This fact takes legal form in particular. This is a global financial law. accompanying and embracing this global financial fact, which carves the sources of Law, which allows people to move or not, which gives the first rank investment in a system in which the people themselves are only investment object!footnote-784. Can a person who has no money and has not knowledge or can sell his/her body still exist in a Global Law that knows only money?
The second global fact is technological. The digital space is a new world!footnote-785. Global Digital Law accompanies the global digital phenomenon. It shares with finance the same immateriality and the same absence of limit. Do people who do not exist there can pretend to exist yet? Can Law prevent the person who knows to sell himself/herself or does not want to do it in this world that knows only the value of exchange, survives it? The creation of a new right, whis is a "right to the deconnexion" suppose every human being could be outside this digital space : everyone would be born in in ..., with some natural rights to rest.
B. Taking the measure of the Global Law as a phenomenon of "mobility" or "liquidity"
Globalization is in a tautological way a geographical phenomenon since it designates a prima facie way of traveling the world, which natural persons do under the legal mode of freedom to go and to come. There is adventure and youth in globalization. The WestWord series perfectly represents this wide and virtual imprisonment where one consumes emotions paying access to a no-Law zone, where one kills and one rapes women and children. What a pleasure!footnote-787. But this voluntary displacement may take a constrained form of "migration"footnote-786, which often encounters the other legitimate constraint constructed by the State : the frontier (1) But when money follows or precedes, traveler or wealthy migrant, or foreign investor, the strategy of the States takes the form of open doors for the natural or moral persons (2) what tends to show once again that the "law of the world" would be that the sole rule of money. The law of money, the law of the market, the law of liquidity : Globalization thus tends to liquefy space (3). .
1° Globalization, freedom or fundamental right to come and go of natural persons
Thus the first Global Law, establishing common rules and multilateral sources, aims at the transport of human beings and things. Who still does'nt dream of the Aéropostale, who transported these very special goods which are letters, those goods which are links between people!footnote-788 ? The global air regulatory agreements date from the early 20th century, in order to the borders do not hamper what was later called the "open sky".
Romanticism suits Saint-Ex. But it was above all the sense of commerce that led the Law to open frontiers and, following the merchants, that they took the plane, as, before the airmen, Magellan had taken the boat, Law assuming the natural persons' freedom to come and go.
2° Globalization, freedom or right to come and go of natural or legal persons
Commerce was and remains the Law of the World. This is the one kept by the World Trade Organization, the well-named, which the jurisdictionalization in 1995 stripped of a diplomatic nature to transfform it in a juridictional system!footnote-789. Even if it is the States, which are the subject of international public international law, which are parties to the cases proceedings, it is well known that it is their companies which are parties to the disputes. States only carry these.
Since trade is nothing without a shop and without production, freedom of movement calls for freedom of establishment. As this requires investment, a kind of "right to invest" has developed.
It appears that this subjective right, which the firms are entitled to enjoy, is not reducible to the free movement of capital, implies that States, as its passive subjects, could not or should no longer "resist". This new global right to nonresistance of States is observed both in terms of foreign investment, neutralized as to its foreign nature, since they should be treated legally as national investments and in digital matters. Indeed, by the invention of the legal principle of the "neutrality of the net", it is possible to invest without constraint. "Neutrality", this legal invention!footnote-791 , which reinvents reality even more strongly than did the Competition Law!footnote-792.
There is thus in a new way this belief in the "neutrality" of property, as if investment was only the desire for money, while it is also, and sometimes above all, the will to dominate and decide. What the State company expresses. Money often has the smell of petroleum ; in many countries national energy Laws have all restored ownership to its political boundaries. The whole issue of an energy Europe is whether or not it recognizes its political nature and whether it is correlated with environmental concern or military concern. This issue is the same about the construction of digital Europe through the Law.
3 ° Globalization, as "liquefaction" of space for human beings
But the stories may be less fortunate than that of a fox and a rose that has just come out. No more the heroes of the airpostale and the galleons returning laden with gold. Globalization is also the escape of human beings who try not to die under bullets and often only manage to see their children drown. Do not close your eyes, migrating is not traveling, migrating is fleeing.
Thus let's go from the Business Law, matter which rightly claims to be the Law of the adventurous, to the Humanitarian Law, matter of the unhappy. All the characters of Les Misérables find themselves there.
What then chooses to do the Law face of a "human flight", which some have dared compared to a leak of water that it should be necessary to plug as soon as possible? Legislation was passed, walls were erected, the cost of which should be borne by their victims, the walls which now replace the camps, maybe drones replacing walls in the future. The Economic Analysis of Law tending to replace the other theorical perspectives for understanding, it is the application of the medieval theory of windfall, which now seems to be in vogue: if the human capital in perdition on the land of the State is of good quality, then one seems to consider that the Law must put in place a "strategy of reception of the talents".
As in gallant terms these things are said. But even if this sorting is economic, it nevertheless remains a sorting. And if the person has little talent, little education, little health, he or she ceases to be worthy of being welcomed? !footnote-793 Recent European national texts, new European proposals proceed. Small fish, pity for you if you are not restrained.
Pity for you because the metaphors of water, of current, of tsunami, of fishing net, of miraculous fishing of talents, are essential. Indeed, by exploding borders by neutralizing states, and then putting them in a position to choose when there is leakage of those drops that it is clever to collect, Globalization has liquefied the world space, transforming the human beings to be themselves only drops of an immense tide!footnote-794.
In this respect, globalization, whether in the form of trade, in the form of investment or in the paradoxical form of reception of migrants, takes the form of the market, and more specifically the financial market, liquidity makes quality.
But Law may not be merged into Market!footnote-795. "Migration policies" exist, which continue to take as a primary criterion the human being, and not the interest that he or she represents, thus not degrading it as an "asset". There is then a confrontation between the phenomenon of Globalization and Law, in the issue of the remain or the pulverization of the "person" remains. This confrontation is further declined by the fact that Globalization, as a "fact" seeks to remove all relevance to the very construction of legal systems into branches of law, through the constitution of this mysterious "Global Law", the glove of Globalization.
C. Taking the measure of Globalization through a relevant legal tree
To understand and manipulate the world, we must construct it a priori, through categories in which the facts are classified. This applies to both Common Law and Civil Law systems. Thus the question of the branch of the law arises because it is possible that we do not understand what is happening because we do not have the proper branches of law, accustomed to thinking of the branch of law by branch of the law, a classification to which the world facts may be rejected (1). Indeed, there is a tendency to think legally of globalization sector by sector (2), but it is doubtless necessary to identify thematically by thematic issues, which are the direct result of globalization itself (3).
1 ° Globalization, understood branch of Law by branch of Law
Globalization as open borders is based on finance and investment, two pleonastic branches of globalization. They nevertheless appear to be very narrow branches of Law: except to say that Family Law, Public Paw, Criminal Law, etc. no longer exist, because the Global Law will have shrunk the legal systems, or will have pulverized them!footnote-796.
Except to say that the classical conception of Law, through a system articulated on branches of law, themselves supposing summa divisio, a perspective often described like a French garden, is obsolete and it is new required face to "complexity" to leave it for directly dealing with legal difficulties by case basis. Thus, when dealing with global difficulties, for example State contracts, solutions are found without attempting to locate themselves beforehand in a bloc of rules grouped together in a branch, notably in Public Law or Private Law.
It emerges that the legal systems that have been constructed by the humus of particular solutions, mainly the Common Law, appear more adequate than the legal systems that have deployed the principles as so many aisles previously drawn before the factuals situations come circulate.
This methodological domination of Common Law systems is associated with the open character of British and American systems. This dominiation is not definitivel. Notably because of its cost and the difficulty of handling it!footnote-797, Global Law is again principle-based in many sector and many regulations, for example banking area.
2 ° Globalization, apprehended sector by sector
But the Laws influenced by Globalization are rather economic, they are not the projection of traditional branches, of Law simply colored by the global phenomenon, but rather the direct translation of economic sectors, this translation of which "Financial Law"!footnote-798 is exemplary.
This is why, more generally, "market laws" tend to globalize, such as Competition Law, whose substantive, institutional and procedural principles are globally unified, as do all sectoral regulatory Laws.
One would think that the dividing line separates the Laws which remain held by the State and those which are accessible to the parties, a classical distinction in private international law. This availability is visible through the use of contracts, the only ones being globalized through international arbitration, which has always secured the Lex Mercatoria!footnote-799, while the former remain in the national enclosures!footnote-800 . But that is not true. When one observes the Criminal Law, of which it is so often asserted that it is a regal and autonomous one, on the contrary, we find that economic criminal law and the law of economic repression are today unified worldwide!footnote-802.
It is therefore precisely the specific sectors, such as the global fight against corruption or the global will to protect nature by an global Environmental Law!footnote-803, which constitute the new lines of legal trees.
This does not mean, however, that family law or the persons law remain impervious to globalization. And this for two reasons. In the first place, financial law has penetrated all branches of law, through the financialization of the economy, and people's everyday lives are more than ever a matter of global economy, for example through trademark law , also globally unified. In the second place, digital has created a new space in which Law follows the development of a new wealth constituted by personal data!footnote-804. Because the Internet is synonymous with globalization and constitutes a space for families, people, their intimate life, their erotic scene, the revenge porn being a global evil whose Law must protect the victims, all the branches of the Law are porous to this terrible unity !footnote-805 produced by a globalization which is united not on the crossed roads of frequent travelers, but on a unified finance for optimum functioning, to which the law also contributes.
And yet. As was said at the colloquium that the Capitant Association devoted to globalization, "globalization is the theme of the human race in general". As the German Chancellor once again stated en septembre 2017: "What is important to me is to give a human form to globalization!" !footnote-971.
Therefore, on the one hand, we must note that the "global fac"t is le fact of markets, which develop only by the Law on which they rely, a technical, instrumental and unified Law by the object on which it bears - whether it is finance or digital - but we must also take note that by a kind of natural movement parliaments, jurisdictions, individuals and companies want people to be protected.
The theme of globalization from the point of view of law is therefore the theme of the market and the allied forces of money and technology in the face of the human race and the armor that the Law has constructed to protect it : the person.
3 ° Globalization, apprehension by themes specific to Globalization itself
The first theme is the State, the question of the persistence of its very existence or its disappearance (a). The second theme focuses on the relevance of the "war / peace" couple (b). The third theme concerns the role of Law in Globalization (c).
a. Does the State still have the means to claim to be sovereign in the face of Globalization?
If Globalization seen by Law is a confrontation between Market and Person, between the power of the first and the weakness of the second, between the covetousness of the former for the latter and the inclination of the latter to be only a sort of "market subjetfootnote-806, there is the State between them. The contract is the instrument of the market but, as Carbonnier wrote, the State invites itself to the table of contractors. Is he sitting still? As a master of the house, Globalization seems to have transformed the State into a mere servant. When the state is in crisis, it takes the contractual instrument as a norm imposed on itself. Moreover, the State is in crisis globally when it is so badly needed that it is dependent on markets, as evidenced by the pathetic rules of sovereign debt.
It must therefore be inferred that money leads the world. The observation is not new. But the affirmation becomes troubling: we could put it on the pediments of our edifices, for money would lead, by law, the world. If this is so, the rule of a Financial Law noting sovereign debtors in the same way as the others, this means the disappearance of the Politics, which has no "sovereign" except memory. One understands better that technically the technique of capitalization is preferred to the technique of the solidarity to organize the pensions rules and the social protection!footnote-807.
This constitutes a new form of disenchantment in the world, which the populations are unlikely to accept, because with it disappears the legitimate monopoly of the violence they attributed to the State !footnote-809, which broke the initial spiral of it!footnote-810. In this perspective, the time of Globalization, if it was to be a world without external and political law, should be a world of endless and ever-increasing violence.
Indeed Law was long presented as the secular arm of Politics. Globalization tends to make this link disappear. States were nothing more than beggars of financial markets, actors judged by their only effectiveness, in particular by the economic analysis of law. Even if this view of the law in its sole relation to the state was reductive, the vision of the Law given by globalization is even more reductive, even destructive.
Law would be only a technique of efficiency of exchanges ensuring the security of credits and long-term commitments. Law would be therefore only a means of execution without any autonomy in relation to the object on which it is concerned.
b. Has globalization established a "Law of War" or a "Law of Peace"?
To pose such a question!footnote-773, it is before necessary that Globalization has not annihilated the State. Now, the State would be a debtor-debiting performance standards. Moreover, the economic character of Globalization, erasing borders, would tend to make desappear international law, both private and public. And yet ... First of all, it should not. As René Cassin asserted!footnote-811, as he constructed international law after the unprecedented massacres of the Second World War, as Kelsen conceived at the same time!footnote-812, international law is designed to find the very strength in that space to protect human beings against the brute force, those of the wars, those of the global operators invading the national and private spaces.
Indeed, today companies do not always act in the attractive mode of global advertising, they also act to take advantage of the advantageous costs of indecent labor when the protective hand of the legislator of labor law is not long enough. Must we reproach them? Tomorrow even more violent forms will appear. They are already extremely strong and if we still have a little humanity, it can not be under the sole prism of economic windfall or clever management through our Laws apprehend the arrival of the victims of these wars who no longer follow any law of war.
The answer is that the State would want to maintain what is strangely referred to as "volunteerism" and that is only its tautological relationship to the people it protects as a State must do.
Nevertheless, is the State so weak? the State is everywhere. The state has never been as alive as it is today. Private investments are conceivable only because conflict resolution mechanisms are installed, dependent de plano or in fine of States and diplomatic alliances, integrated into the global economic system. If corruption is also included in the cost of the system, financial global law has developed, and with a level of constraint hitherto never achieved, to combat international corruption and money laundering!footnote-813. The international institutions, forms of unchallenged public power, are active and today international arbitration gives rise to disputes almost systematic before the state judge. Regulators and criminal judges are the most powerful in banking matters. They are silencing the banks, which simply pay.
Because states exist and are powerful, the question of war and peace can therefore arise.
Let us begin with the question of peace. Because we are among "friends" who "like" what say the others : this is what explain to us the companies that hold the platforms that offer us some soul mate, others and a lot of "friends". This is the "conversational planet" that takes us out of our solitude.
Facebook cares so much about us and condemns so much the international terrorism that strikes us that in case of an attack it is now on its social network that we reassure our friends on the fact that we are still alive and it is still it, with its friends which are Apple, IBM, Microsoft, and other relatives, which will merge the data to fight preventively against the bombers. The distribution of the world between the gentiles and the wicked is rebuilt.
In this desire to offer us a global peace by a space of digital conviviality, there would be no need of the State, whose the repressive soul would be impregnable. The "consent" of the Internet user would be sufficient. Consent would be the new law of the world. It will be agreed that consent is also the principle of the contract. Note that the contract is the instrument of the market. It will be observed that the market prospers on the "law of desire". It will be seen that the desire of the solvent person is satisfied there, that the insolvent person has the practical solution of satisfying, in particular by offering his body, the desire of the first. The global human market is the market of the future. Some rejoice, others weep. But the function of the Law is to give rights to the one who does not have the strength to concretize his desires other than by Law !footnote-815.
It would be a "universal peace" that would be the double neutral and prerequisite, technologically possible and financially so profitable, producing a monopoly of powers, based on the consent of a human being who, in exchange for this conversational paradise, strips himself of his data, which are nothing but his life itself.
One can doubt the effectiveness of the part of Internet users in the governance of the Internet, but to assume it to be more consistent, is it not the very principle of dispossession of oneself, in exchange for a little less loneliness in a fraternity so illusory and unrelated to the legal principle of solidarity!footnote-816, which is disturbing, even reprobate?
Besides, rather than being a figure of peace, is not Gglobalization a figure of war, again without Law? It is often shown that Globalization allows the deployment of a pure balance of forces, particularly in the circulation or not of people as in the reception or refusal of investments. More than ever, one must be rich and beautiful. One can then circulate and invest everywhere. Welcome to athletes and graduates ! Unhappiness to the elderly, the sick, the women and the children.
But without dwelling on such a dramatic subject, which would lead to the opening of so sad figures of trafficking in human beings, that is to say, women and children sold by thousands because of wars and bought by us, Western countries, notably thanks to the digital world, which ends up neutralizing what could remain to us of pity and morality for our fellow-creatures, let us rather take another war which is now intensified because of Globalization : war between Common Law and Civil Law.
Common Law is winning. It becomes the "common rule" of the world. Of course, at first glance in business law alone. But as Globalization is business law and business affects all human affairs, that system devours everything.
If we consider that Common Law systems do not only have qualities and we should "react", we can first of all strengthen a fraternity. No longer the one that unites friends of social networks, but a political friendship, like the one between the countries of South America or the one between Germany and France. We can also not only "react" but "act" by building Europe, by finding common jus or by the construction of new common standards. In any case, a war, often referred to as "competition of systems", is lost only if it is considered as such in advance. It will only be if the European ideal is abandoned. Since the beginning, Europe is being built by the Law. But it is also necessary to measure the share of Law inGglobalization to credit Law with an ability to act on the construction of Europe .i.
c. What is the role of Law in Globalization?
Are we living the globalization of Law? Do we not rather see the globalization of lawyers? Or, more precisely, do we not rather see the globalization of law firms?
It is not Law that has invaded everything, it is the omnipresent Anglo-American law firms. It is not the same thing. It should be emphasized that if English-speaking lawyers are now everywhere, global standards are not so much legal. However, they dominate legal matters. For example, an ISO or IFRS standard has a much greater impact than Professor von Bar's writings.
This presence of lawyers combined with this absence of classical legal norms has a major consequence: the disappearance of legal qualifications in favor of economic, technological and financial qualifications among those who write laws or regulations, plead or apply rules, for example in international arbitrations. The "platforms" appears to be a legal category without attachment to another norm, texts are called "regulations" without further precision because economists do not distinguish between the sources of Law and mingle it in the broader whole of regulation at all levels of what was the hierarchy of normss. For example, mathematics is the direct material of the global prudential standards of Basel.
Thus, the force of global normativity lies in its total absence of juridicity: written by engineers and economists who directly insert the notions that they handle in the texts without worrying about their compatibility with the legal system they do not think of knowing, the lawyers come after. They come even in large numbers because this way of doing can only produce many disputes: nothing is understood about the "regulations" thus established, and international arbitrations multiply, where lawyers, engineers and financiers sit together for their greater prosperity .
From these movements so deep, what to think?
The key is to think something. And from a judgment of globalization from the point of view of Law, the main thing is to draw some consequences, even if it is to say that nothing can be done. That the time for the fees has come and that the time of the Law will be closed.
II. THINKING GLOBALIZATION LEGALLY AND DOING SOMETHING
By a sort of inevitability, it is often asserted that the tsunami of Globalization even dispenses us from thinking about it. Rather, the legal imperative should be to think of something (A). Once we have thought of something, then and finally, we may wonder what we can do(B).
A. THE LEGAL IMPERATIVE OF THINKING GLOBALIZATION
Thinking about Globalization is a legal imperative (1). It is often abandoned because Globalization is an "economically acquired and inexorable fact" (2). Yet globalization can be constructed as a legal project away from the facts (3).
Law is not only a technique of effectiveness, efficiency and excellence that allows one system to win against another in a competitive test. Law is also a set of values, of costly values, of which it is not adequate to show only the profitable character by a happy billiard effect. For example, it is not enough to simply show that the respect for the person of the workers is beneficial for the company, for its reputation in the market, for the loyalty of consumers, because a happy worker does not fraud, etc. ; it must be posited that in itself workers, as persons, must be holders of social rights in the indifference of profit or cost that this represents for the company and the good or bad image that this projects into the financial markets.
Either one "believes in the Law", as a secular expression of the sacred and adheres to a few principles, the first of which is the protection of human beings by an unbroken link with the notion of person, or one does not believe in it. The one who sees in it only a technique of efficiency does not believe in it. Reading the reports of experts who succeed each other, both international and national, the reader has the impression that legal technology is increasingly considered as a performance tool and that everyone believes less and less in Law, that is to say in the human being, able to be concerned for the other.
Let us not seek even the immanent justice which is prepared in the violence of human beings who, if this secular value of Law is denied to them, if they are reduced to being nothing, only assets, objects, machines or "desirable" machines"!footnote-817, mechanically disposed to consume or to be consumed, human beings will seek other values, a god, a vengeful god. Law will not be able to keep this illegitimate force away!footnote-774.
So the lawyer must think. If Globalization reduces Law to be merely technical, it brings to the forefront the technical jurists, wealthy if they are neutral, wealthy that they do not think, in competition with robots and algorithms if lawyers do not defend Law which defended Antigone, it is conceivable. But let them think of something. For in judging Globalization, it is themselves they judge.
But if we think so little about globalization, it is because it is presented as a mechanism so natural that we have no more to judge it than we judge rain.
2. Globalization presented as an "economically acquired fact"
It should not be said that the notion of "Natural Law" is not well. On the contrary, it is explained to us every day that there exists a "universal natural law" to which no one could escape, neither the state nor the human being: the natural rule of supply and demand. From this natural rule, positive law should have the function of being the double neutral, covering it with its effectiveness, and could differentiate it only by explaining the good reasons that it should do.
This natural law would function by self-regulation, based on another equally natural mechanism: "consent", human beings and rational organizations - whose algorithms represent an advanced point - naturally giving their "consent" if the offer presented is adequate to their desire or need. Stock market transactions by programmed computers and sanction imposed by the financial Regulator for market abuse committed by the algorithmfootnote-818 are exemplary of this subsumption of consent under rationality.
It is true that Gglobalization is above all a phenomenon of trade in goods and services, therefore based on supply and demand, which have met more and more massively with less and less obstacles, in particular thanks to the WTO, an organization which became fully legal in 1995. This "law of attractions" is based on a natural force, that of the market, about which there would be nothing to think. The contracts by which the meeting of the special supplies and the specific demands are carried out would no longer have to be judged.
It is remarkable that contracts, which are presented as "self-evident" in Globalization, are now called "intelligent", even though they are no longer written by human beings. Thus, the more technology eliminates the human being and the more the adjective "intelligent" is used. How ironic...
If we succeed to recover our mind, we can pretend to conceive a legal project in the face of Globalization.
3. Building Globalization as a legal project away from the facts
Law is neither a transparent envelope of reality nor a pure performative construction. It is based on a reality that pre-exists but it has the power to insert ideas that constrain this reality and build the future by the will that Law has expressed. If this is not that, Law has no interest.
In this perspective, if global legal facts are useful, Law must accompany them; if they are harmful, Law must oppose them; if they do not exist and are desirable, Law must build them.
Because Law is also a political phenomenon and exists only to create a reality that is specific to itself, because it has for end to defend human beings who, without this mask given by Law (persona), cannot do it by their only force, Law must not abandon its claims in the face of the powerful phenomenon of globalization. That would be abandoning the weak human being.
B. QUID FACERE ?
The spontaneous response is "nothing" (1). But one can do better ..., and answer "less than nothing" (2). If one is not desperate, the answer may be the regulation(3) or, surpassing it, why not answer "all"? (4).
We hear it so often: do nothing, everything is played. Still pretending to do something would be derisory, even ridiculous. They whisper behind your back : "Where is your faithful Sancho Panza?". Globalization being an economically acquired fact, the same would apply to Law, which would had only to follow, in full docility, on your donkey.
It is often argued that nothing should be done because Anglo-Saxon Law reigns throughout the world and that classical legislative activity has long been covered by a legal methodology that is all the more efficient and superior in that it is flexible and not located. The flexible and solf law!footnote-819, who does not salute its power and rejoices in its universality?
It is with a certain masochism that the observers of the Continental Law, but also the authors of the norms of this system itself, underline that finally, thanks to the domination of Anglo-Saxon Law, we would be "freed from systematic law". Finally, dogmatism would be rejected, and finally, pragmatisme and case by case would prevail.
Law would therefore have nothing more to do but to accompany in a neutral way the economic operations, one by one, assuring them security by a binding form and a legibility proper to what is so clearly called the "toolbox" that would constitute the Law. Security, Simplicity, Predictability, this is the new triptych. It has the advantage of adjusting to every contract until the Constitution. We must not blame the manager who asks for that when the legislator himself is only a pipe repairer so that the money flows better there. The companies set an example by adopting internal codes of conduct or common charters, of global scope, constituting the new global constitutional law!footnote-821.
And to cite an example of success: the global law of sport. A unified global set of soft law, codes of ethics, a global agency, a lot of associations. A great success...
But we can propose even better: to do less than nothing.
2. The second possible response of Law to Globalization: doing less than nothing
For what is often referred to as "Global Law", exemplified as the future of Law, appears as anything but Law.
Let's start with Accounting. Accounting was Civil Law put into figures, since it reflected assets and past and present operations of the company. It is no longer so. International Financial Reporting Standards (IFRSs) have, as the name implies, imposed an accounting system designed to provide present and future financial information to investors who must at all times be able to buy or sell securities related to the company . Law has been evacuated. Even though these IFRS standards are global and are today the first benchmark of many international contracts and become the model of building public finances of the States.
Then take the technological security standards. These are global and essential, not only in nuclear matters, but also in all aspects of data processing and data security. The new techniques, on which Law is for the moment quite silent, of "Ethics by design" show that the world would prefer to entrust to algorithms the choices of life or death on the victims of road accidents caused by cars without driver. Let us have a thought for Tunc.
One could again take the example of new intellectual property standards, rethought by the economies of innovation, from an Ex Ante perspective and no longer Ex Post. Or let us take the revolutionary mechanism of bank resolution en the European Banking Union, the only true creation of the European Union in recent years, entirely conceived by the financiers and the economists of the regulation.
For if Global Law seems to exist only in the form of non-juridical norms elaborated by non-lawyers, it is above all in an endlessly repeated perspective: to "regulate".
3. The third possible response of Law to Globalization : to regulate
This world-wide regulation conceived outside of Law, in a way all the more constraining as it is flexible and soft, in buildings of London or Basle on the pediments of which it seems written "here do not enter the jurists", is effective. Even before being transposed into legal texts, which copy these norms, the firms apply them, indifferent to this last legal formality. This is the case for prudential standards, such as Basel III.
Can this last a long time? For why not an absolute constraint produced by norms produced in an opaque way by unknown and unelected authors who are said to be irrelevant but to which the judge produces effects as he wants. The key is that persons can bear it for a long time, both those who are constrained by these standards, such as banks by prudential standards or global operators by compliance, and those who in the population see the impact on them of global mechanisms from which they are excluded while everything is decided there.
This "Regulation of Globalization" appears at two speeds. The legal question that then arises is la question of liability mechanism as a regulatory tool. How can operators be so severely constrained by regulators and so unaccountable to the population?
Powerful companies themselves do not want it. One can not be sustainably powerful if one is not responsible, responsibility being the source of freedom and action, not their consequence. That is why the Corporate Social Responsibility mechanism, which focuses only on structurally powerful companies, has a great future in Globalization, notably through Compliance. Ethics and power are not incompatible, especially not in an open world!footnote-828. In Jonas's work, the responsibility is for the future. It is a particularly good example of the environmental or educational global responsibility of these companies. Others see in the persistence of the "codes of honor" !footnote-826 a solution, proof that the re-coding of which Alain Supiot has denounced the misdeeds!!footnote-827 has also some benefits.
This theme of liability but also of accountability is the major theme of Globalization!footnote-822. For the time being, it is primarily the judges who make it happen, because it is the office of the judge, the guardian of law and order, to impose the responsibility of others on accountability - definition of responsibility. justice. For example, the Google Spain case!footnote-823 , and the creation of the right to forget!footnote-824, or litigation before the WTO, in which the United States loses so often.
But Regulation is not just a technical device that mitigates market failures. It is also a political construct which seeks, for example, to protect the populations against powers which are not justified or to defend certain principles, such as the public service. This is why, in symmetry, sovereign wealth funds and vulture funds, which both benefit from the principle of neutrality of national and international texts, are treated in an opposite way by the courts and arbitral tribunals.
Indeed, the criterion adopted by the judges and the arbitrators is that of the person. The sovereign wealth funds are designed to protect people, the vulture funds are indifferent to the destruction of people that their voracity causes. As a result, the courts grant additional rights to the former and deprive of essential prerogatives, including the right to be paid, the latter.
In the same way, the judge will distinguish in the use of the data that this use is favorable or harmful for the persons!footnote-825.
Indeed, the Regulation Law is applied only in a teleological way and in the face of globalization : Regulation must not be reduced to a neutral and technical service but must affirm its aim: the protection of the person.
4. The fourth possible response of Law to Globalization : claiming everything
If Law does not affirm in the face of the phenomenon of Globalization that it claims to protect the person, even if it is difficult, then it is no longer Law. And the population will not bear this abandonment of the Law because the peoples refuse the illegitimate world facts and demand the protection of Law, in particular in its juridical form.
Expressing this, States rise up against harmful global legal practices and express new claims, further control of investments in crucial sectors, extend their extraterritorial jurisdiction, including in criminal matters, practice the method of "contextual enrichment" in this which is rightly called the augmented State.
This state is increased not only because it reaffirms its normative and effective power, but also because it claims to be concerned not only with its population but with others, which is in line with the classic definition of justice as a concern for others.
Yes, States and Law must formulate claims. For always strong persons and entities have strength and rignts and Law pour them, while weak persons have rights and Law for them and have only rights and Law. Globalization has made tstronger the strong and weaker the weak. And we would like this to be the moment when Law should abandon itself and lose its claim to protect the weak, serving only the projects of those who have the strength to have personal projects?