IDEAS home Printed from https://ideas.repec.org/p/erp/euirsc/p0276.html
   My bibliography  Save this paper

New Foundations of Transnational Private Regulation

Author

Listed:
  • Fabrizio Cafaggi

Abstract

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.

Suggested Citation

  • Fabrizio Cafaggi, 2011. "New Foundations of Transnational Private Regulation," EUI-RSCAS Working Papers 53, European University Institute (EUI), Robert Schuman Centre of Advanced Studies (RSCAS).
  • Handle: RePEc:erp:euirsc:p0276
    as

    Download full text from publisher

    File URL: http://hdl.handle.net/1814/15284
    File Function: Full text
    Download Restriction: no

    File URL: http://cadmus.eui.eu/bitstream/handle/1814/15284/RSCAS_2010_53.pdf?sequence=1
    File Function: Full text
    Download Restriction: no

    Citations

    Citations are extracted by the CitEc Project, subscribe to its RSS feed for this item.
    as


    Cited by:

    1. Stefan Renckens, 2015. "The Basel Convention, US politics, and the emergence of non-state e-waste recycling certification," International Environmental Agreements: Politics, Law and Economics, Springer, vol. 15(2), pages 141-158, May.
    2. repec:eee:jrpoli:v:52:y:2017:i:c:p:379-388 is not listed on IDEAS
    3. Cafaggi Fabrizio & Janczuk Agnieszka, 2010. "Private Regulation and Legal Integration: The European Example," Business and Politics, De Gruyter, vol. 12(3), pages 1-42, October.
    4. Fabrizio Cafaggi & Luana F. Joppert Swensson & Ronaldo Porto Macedo Junior & Tiago Andreotti e Silva & Clarissa Piterman Gross & Lucila Gabriel de Almeida & Thiago Alves Ribeiro, 2012. "Accessing the Global Value Chain in a Changing Institutional Environment: Comparing Aeronautics and Coffee," IDB Publications (Working Papers) 4250, Inter-American Development Bank.
    5. Pelkmans, Jacques & Renda, Andrea, 2014. "Does EU regulation hinder or stimulate innovation?," CEPS Papers 9822, Centre for European Policy Studies.
    6. Reinhard Steurer, 2013. "Disentangling governance: a synoptic view of regulation by government, business and civil society," Policy Sciences, Springer;Society of Policy Sciences, vol. 46(4), pages 387-410, December.

    More about this item

    Keywords

    soft law;

    NEP fields

    This paper has been announced in the following NEP Reports:

    Statistics

    Access and download statistics

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:erp:euirsc:p0276. See general information about how to correct material in RePEc.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Valerio PAPPALARDO). General contact details of provider: http://edirc.repec.org/data/rsiueit.html .

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    We have no references for this item. You can help adding them by using this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service hosted by the Research Division of the Federal Reserve Bank of St. Louis . RePEc uses bibliographic data supplied by the respective publishers.