De la régulation déléguée à la constitution d’écosystèmes vertueux. Droit économique et remondialisation

Hugues Bouthinon-Dumas

Revue internationale de droit économique, 2023, vol. t.XXXVII, issue 3, 143-162

Abstract: This article analyses the consequences of two recent pieces of economic legislation which require large companies to exercise control over companies linked to them in their value chain (subcontractors, suppliers, subsidiaries of groups of companies). In several areas, companies are legally obliged to assess or audit third parties before entering into a business relationship with them, and then to check that these economic partners offer sufficient guarantees of compliance with certain standards (in terms of personal data protection, anti-corruption, in the financial sector, etc.). In addition, several countries, including France and Germany, have introduced a ?duty of care? into their legislation, which has since been incorporated into a European directive proposal (?Corporate Sustainability Due Diligence?). The duty of vigilance makes companies liable not only for any damage they may cause themselves, but also for any serious harm caused by one of their regular suppliers or subcontractors, if this harm could have been avoided through greater vigilance. These rules lead the companies concerned to carefully select and monitor the companies that are economically linked to them. By applying neo-institutionalist economic theory to the relationships between parent companies or principals and affiliated or supplier companies, we can anticipate that the inclusion of compliance and vigilance costs in the transaction costs borne by companies will lead them to favour the establishment of stable business relationships or integration into groups of companies or networks of companies. The unifying factor of these groups or networks will then be not only economic but also normative. What will bind companies together will certainly be an economic interest, but also adherence to the same level of compliance with standards that the authorities consider essential, to the point of imposing compliance on companies and networks of companies that are linked to them. Finally, we can anticipate that these new regulatory constraints will change the way in which business relationships are structured. Companies will still be able to take advantage of economic globalisation, but they will no longer be able to use outsourcing as a way of circumventing regulatory constraints. The rise of these ?virtuous ecosystems? could be identified with a new king of globalisation.

Keywords: delegated regulation; compliance-based ecosystems; duty of care act; transaction cost; network of companies; economic law (search for similar items in EconPapers)
Date: 2023
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