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

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

Public and Private Regulation: Mapping the Labyrinth. CEPS Working Document No. 370, October 2012

Private governance is currently being evoked as a viable solution to many public policy goals. However, in some circumstances it has shown to produce more harm than good, and even disastrous consequences as in the case of the financial crisis that is raging in most advanced economies. Although the current track record of private regulatory schemes is mixed, policy guidance documents around the world still require that policy-makers give priority to self- and co-regulation, with little or no additional guidance being given to policymakers to devise when, and under what circumstances, these solutions can prove viable from a public policy perspective. With an array of examples from several policy fields, this paper approaches regulation as a public-private collaborative form and attempts to identify possible policy tools to be applied by public policy-makers to efficiently and effectively approach private governance as a solution, rather than a problem. We propose a six-step theoretical framework and argue that IA techniques should: i) define an integrated framework including both the possibility that private regulation can be used as an alternative or as a complement to public legislation; ii) involve private parties in public IAs in order to define the best strategy or strategies that would ensure achievement of the regulatory objectives; and iii) contemplate the deployment of indicators related to governance and activities of the regulators and their ability to coordinate and solve disputes with other regulators

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

The impact of CJEU judgments on national legal systems : preliminary thoughts on the link with judicial dialogue

Published online: 4 February 2022Impact concerns the consequences and effects of judgments, both direct and indirect. The impact of CJEU judgments can refer either to the effects on the subsequent case law of the Court of Justice or to their effects on national judicial systems. The former is related to the role of precedents and the criteria to confer precedential value to a CJEU judgment within CJEU jurisprudence