Law and the market: private actors and self-regulation. Towards a new role of public international law

This paper re-interprets the new governance of financial markets. Indeed, in the aftermath of the recent financial crisis (2007-2010) the features of risk and uncertainty have presented a new ontological realism, so that the abstract theorisations of Knight and Keynes can be finally superseded.

Therefore, a revaluation of uncertainty from a humanist perspective is suggested, taking into account risk and competition as forms of the new economy of financial systems. Treaties are traditionally considered as the  preeminent source of law in public international law, but in financial markets their role has been reduced to instances of ‘macro-regulation’ as opposed to ‘private rules’ that are embedded in self-regulation instruments. Indeed, these latter have paved the way to a specific knowledge of the financial industry.

In this light, financial systems are studied as venues through which private forms of self-regulation can effectively substitute a Westphalian model of regulation or alternatively coexist with them in a mixed system of financial regulation.

This article is part of a special issue: The future of the commercial contract in scholarship and law reform - a work in progress