Private Law in a Post-National Society : From Ex Post to Ex Ante Governance

As a result of increasing economic globalization and technological progress, the power of State-made law to govern relationships among private parties is decreasing. It is argued in this contribution that as a result, private actors increasingly turn towards alternative types of ordering that as much as possible avoid the applicability of (default) State-made law. This trend is not only visible in rule making, but also in enforcement of law and dispute resolution. This development is characterized as one from ex post to ex ante governance of private relationships: the ex post reliance on the law to provide appropriate rules, enforcement and dispute resolution is replaced by a situation in which actors proactively avoid as much as possible the applicability of laws or State produced mechanisms they do not deem fit to govern their relationships