The Architecture of Transnational Private Regulation

Conflicting interests among private actors constitute an important factor to explain why and how transnational private regulation has grown and the proliferation of standards and standard setting organizations that has followed. This essay provides a map of transnational regulatory space suggesting that the different levels are related to various governance responses to conflicts within the private sphere and between private and public actors. Three levels of the global regulatory space are considered: (1) the single global regulatory body, where interests are integrated into one organization, (2) the regime, in which multiple organizations operate, regulating within the same policy field, (3) multiple regimes often associated with different, often conflicting, policies that interplay cooperatively or competitively. Unlike in the traditional multilevel governance literature, where ‘levels’ are primarily defined on the basis of a territorial metric, here the notion of regulatory space is functional and independent from the administrative boundaries of nation states. For the three levels, the choice of the key governance features are driven by the different forms of the relationship between regulators, regulatees and beneficiaries and how their conflicting interests are balanced at the organizational and/or regime level. Depending on how the interests of regulatees and beneficiaries are combined, different governance options will emerge: creating single or multiple regulators, defining the architecture of the whole regime, in particular the alternative between monopoly and plurality of private regulators, or creating independent regimes, each one representing the interests of a constituency with potentially policies’ interdependencies. The selection of the legal instruments, in particular the choice between contract and organization to coordinate conflicting interests is correlated to the level: organization law is more important in the first level while contract law becomes increasingly important moving up to the regime or inter-regime level. Two forms of governance are distinguished: micro-governance, operating primarily through organizations where judicial intervention by domestic courts is very limited, macro-governance, using transactional rather than organizational tools, deploying coordination mechanisms between organizations or regimes representing different interests (trade and environment, e-commerce and data protection, labour and consumer). In the latter case the role of domestic Courts increases to regulate conflicts and allocate ex post the regulatory space. The paper concludes arguing that the future of TPR and its effectiveness will depend on the choice among these different levels which will be partly driven by endogenous factors, and partly by exogenous legal and non legal factors, among which competition law is likely to play an important role

Regulatory Capabilities: A Normative Framework for Assessing the Distributional Effects of Regulation

This paper develops the normative concept of regulatory capabilities , which asserts that nobody – individuals, groups or entities – should be subjected to a regulatory regime – public or private, domestic or transnational – without some freedom to choose. Choice in this context means the ability to accept or reject a regulatory regime imposed by others or to create an alternative one. A mere formal option is not sufficient; the freedom to choose requires real alternatives. The concept of regulatory capabilities has particular traction in the transnational context where private, hybrid public-private and public actors compete for influence, shape domestic regulation and in doing so limit the scope for democratic self-governance. It also helps illuminate the distributional effects of domestic regulation. As such, regulatory capabilities is a contribution to the general debate on the normative foundation of regulation and governance

Costumbre y derecho en los contratos mercantiles transnacionales: una perspectiva coevolutiva

The article examines the role of custom and trade usages in transnational commercial law. It distinguishes between state and communities-based rules. The validity of the former is grounded on procedural compliance, the validity of the latter on the effectiveness of the rule. It addresses the alternative or complementary nature of custom and law, accounting for the historical perspective. But for a few exceptions, custom and law are complementary and have co-evolved over time. Coevolution has operated through different mechanisms: cooperation and choice. The analysis examines strengths and weaknesses of the two families of instruments that have permitted to feed law with customary rules.El artículo examina el papel de la costumbre y los usos comerciales en el derecho mercantil transnacional. Distingue entre normas estatales y de la comunidad. La validez de las primeras se basa en el cumplimiento de los procedimientos; la de las segundas, en la eficacia de la norma. Además, aborda el carácter alternativo o complementario de la costumbre y el derecho desde una perspectiva histórica. Salvo algunas excepciones, la costumbre y el derecho son complementarios y han coevolucionado a lo largo del tiempo. La coevolución ha operado a través de diferentes mecanismos: la cooperación y la elección. Se examinan los puntos fuertes y débiles de los dos instrumentos que han permitido nutrir el derecho con normas consuetudinarias