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den Bergh, Roger Van --- "Private Law in a Globalizing World: Economic Criteria for Choosing the Optimal Regulatory Level in a Multi-level Government System" [2010] ELECD 289; in Faure, Michael; van der Walt, André (eds), "Globalization and Private Law" (Edward Elgar Publishing, 2010)

Book Title: Globalization and Private Law

Editor(s): Faure, Michael; van der Walt, André

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848447608

Section: Chapter 3

Section Title: Private Law in a Globalizing World: Economic Criteria for Choosing the Optimal Regulatory Level in a Multi-level Government System

Author(s): den Bergh, Roger Van

Number of pages: 40

Extract:

3. Private law in a globalizing world:
economic criteria for choosing the
optimal regulatory level in a multi-
level government system
Roger Van den Bergh

1 INTRODUCTION
In multi-level systems of territorial jurisdictions, regulations may be enacted
at either a higher (centralized) or a lower (decentralized) level of government.
A prime example is the European Union (EU): a particular competence may
be allocated to one of four different levels: the European Union, the Member
States, the regions within the Member States and provinces or municipalities.
The World Trade Organization (WTO) adds an additional layer of governance
to this already complex vertical division of regulatory powers by creating
scope for decision making at the world-wide level.
This state of things poses difficult questions as to the optimal level of
government. Should competences to enact regulations be exercised at the
central level (European Union, World Trade Organization) or should such
competences be decentralized and exercised by nation states or by regulatory
agencies at lower levels of government within those states? Even though law
was originally the exclusive domain of nation states, the ambitious internal
market programme of the European Community (EC) has led to a substantial
reshuffling of regulatory competences. Since the achievement of the internal
market is often considered an exclusive competence of the EC, Member States
have lost large parts of their regulatory autonomy in areas of law affecting the
four fundamental economic freedoms. Even though the World Trade
Organization does not enjoy similar regulatory powers ­ since there ...