Rights of Action of Business Entities in Regional Economic Systems
Direct and state-independent rights of action of private business entities are still exceptional in international economic law and are limited to a small number of regional economic systems. Based on the examples of the European Union (EU), the European E
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Contents 1 Introduction 2 Member States’ Motivation to Introduce Rights of Action and Their Procedural Details 2.1 The Rule of Law Model: Rights of Action as Defence Instruments 2.2 The Functional Model: Rights of Action as Instruments of Control and Participation 3 Rights of Action of Business Entities in Practice: Comparison of “Legal Protection Models” 3.1 Judicial Extension of Individual Access to Court 3.2 Judicial Restriction of Individual Access to Court 4 Conclusion References
Abstract Direct and state-independent rights of action of private business entities are still exceptional in international economic law and are limited to a small number of regional economic systems. Based on the examples of the European Union (EU), the European Economic Area (EEA), the East African Community (EAC), the Southern African Development Community (SADC), the Economic Community of West African States (ECOWAS) and the Caribbean Community (CARICOM), this article examines the status quo of the procedural empowerment of business entities on regional integration levels. It reveals that both the contracting states and the regional economic courts engaged in interpreting individual rights of action attribute different functions to the role of business entities as litigants: Understood as instruments of economic and legal participation and control, individual rights of action give companies the opportunity to actively contribute to shaping the effectiveness of law enforcement in the integration process by means of court proceedings. This functional understanding has to be complemented by a rule of law approach. In this approach, states and courts perceive business entities’ rights of action to the regional courts primarily as defensive instruments, guaranteeing P. Wiater (*) Friedrich–Alexander University Erlangen–Nürnberg, Erlangen, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2020 European Yearbook of International Economic Law 2020, European Yearbook of International Economic Law 10, https://doi.org/10.1007/8165_2020_55
P. Wiater
freedom from burdensome state or Community law interventions in the legal or economic positions of a company. The understanding as defensive instruments prevails (with the exception of the historical European Court of Justice (ECJ) in interpreting the Treaty establishing the European Coal and Steel Community (ECSC Treaty)) in the European systems of individual legal protection and, in some regards, in the ECOWAS legal system. By contrast, a functional understanding can be found in the rest of the African systems and in the Caribbean Community.
1 Introduction The end of the bipolar world order had various vitalising effects on international law in general, as well as on international economic law and on the power of private economic actors to participate in the progress of international economic law in particular. One effect declared as the “most important development”1 of international law at the turn of the Millennium was that the number of newly established or revived p
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