Why the U.S. System is the common frame for Global Law
Aggiornato il: 17 nov 2020
There are both Private law and Public law reasons why the United States system is the reference for a potential Global Law, an eye on history will teach us something more for the future.
The purpose of this article is to comment on the comparative influence that US law has had in the world. Clearly this discourse fits perfectly into a dynamic of Global Law, if one can, or cannot yet speak of global law, to leave these discourses to the future. The globalization of law inevitably follows the globalization of markets. It will not please those jurists, and there are some, who proudly resist saying that law comes before economics chronologically. To this I would also add that the globalization of law also derives from the globalization of world politics, through international organizations such as the UN, the European Union and so on, which it is unthinkable to claim have not given a decisive push towards a global law.
The global system fits into national law through different instruments based on whether we are talking about the private or public system. In the private sector, as we know, one of the largest and most effective tool is the arbitration clause which in Contracts Law allows parties to derogate, procedurally and substantially from a system by applying the complaint they prefer most.
In the public sphere, as indicated above, the system and functioning of international bodies have played a fundamental role.
having established that, why the U.S system again? The fact that the United States is the first economic power is not a decisive aspect, but certainly, with a hard heart, incisive in this aspect. Trivially and purely empirically, the parties that make up an arbitration, a clause of an international commercial contract, are often the counterpart of an American multinational. The system of international organizations, see the participation not only active, but decisive of the United States, from a political point of view. But, and this is the decisive point, beyond empirical or, worse still, political evaluations, the reason for the success of the American system is in terms of efficiency. The American system has always been a transparent system, a system that, from a commercial point of view, encourages exchange, the right of the parties, gives protection in tort law, maximizing commercial exchange. This, however, is the most classic, remotely innovative answer, which for years has been considering the supremacy of US law. In reality there is much more, which American judges and lawyers, European colleagues will not like, it must be recognized.
“But, and this is the decisive point, beyond empirical or, worse still, political evaluations, the reason for the success of the American system is in terms of efficiency.”
The Americans were the first who, with the constitution, established inviolable, unchangeable fundamental rights, alongside a fixed, indissoluble state organization.
The Americans were also the first to foresee the importance of law as a fundamental tool against the oppression of the bureaucracy, raising the judge as, paradoxically, the hero of this freedom.
The Americans were the first to identify, or have the courage to declare it, the dangerously enormous role of the lobbies in whatever system they have. A defect, of course, of a system that has run for cover, through a system, one of many, just to give an example, of punitive damages.
So the American system has flaws, certainly, because the laws are first of all made, and if that weren't enough, applied, by men, but it is a young, innovative system, first in history in many areas that are now a solid part of all world systems.
The future presupposes that the law intervenes, at the level of Global Law, on many disciplines, the law of the environment, or that of information technology for istance, and to believe that both the US model, the model that will be taken as a reference globally, will only act as a brake on anyone who, unjustly, thinks it.