New Foundations of Transnational Private Regulation

Transnational Private Regulation (TPR) constitutes a new body of rules, practices and processes, created primarily by private actors, firms, NGOs, independent experts like technical standard-setters and epistemic communities, either exercising autonomous regulatory power or implementing delegated power, conferred by international law or by national legislation. Its recent growth reflects (A) a reallocation of regulatory power from the domestic to the global sphere and (B) a redistribution between public and private regulators. When in place, TPR produces strong distributive effects both among private actors and between them and nation states. It differs both from global public regulation and from conventional forms of private rule-making identifiable with the law merchant. The main differences concern both actors and effects. TPR is generally voluntary, mirroring domestic private regulation. Parties who wish to join the regulatory bodies participating to the regime are free to do so, however once they are in, they are legally bound and violation of the rules is subject to legal sanctions.* This freedom can be partially limited when the participation in a private regime and compliance with its standards is the condition to access to other regimes which provide market opportunities for the regulated entities. Often, subscription to a regime or compliance with a set of standards condition the access to the market or the ability to compete thereby reducing the freedom to choose. Voluntariness can be undermined by public intervention changing the regime from voluntary to compulsory. Less frequent than those observed at the domestic level are the examples of delegated private regulation to be found at the transnational level, where an explicit act of delegation by an IO or an IGO empowers a private body with regulatory power and makes the regime mandatory for the regulated entities. More diffused are the examples of ex post judicially recognised private regulation, when domestic courts recognise privately produced standards as part of customary public or private (international) law making it binding. The paper will address the factors driving towards the emergence of new TPR are identified in comparison with, on the one hand, lex mercatoria and, on the other hand, international public regimes. The focus will be then on the private sphere, looking at both the different conflicts of interests arising in the regulatory relationships and the need for governance responses; and then institutional complementarity between public and private regimes will be examined. In light of this approach, the claim that differences between public and private at the global level exist is substantiated. The publicprivate divide is analysed, comparing the domestic and the transnational level. Four different models of interaction are identified: hybridisation, collaborative law-making, coordination and competition.