Ensuring Compliance in a Global World
Private Regulation series
Edited by Fabrizio Cafaggi
Chapter 11: Enforcement of Transnational Private Regulation of Advertising Practices: Decentralization, Mechanisms and Procedural Fairness
Paul Verbruggen1 INTRODUCTION The proliferation of transnational private regulation (TPR) has been viewed as a response to the absence or paucity of publicly established norms that govern cross-border business activities (Abbott and Snidal, 2009). The promulgation and functioning of TPR has received considerable attention in the literature recently, in particular in terms of legitimacy and accountability (Bernstein and Cashore, 2007; Black, 2008), whilst monitoring and enforcement of TPR have been addressed only sparingly. Enforcement is the Achilles heel of regulation and is an important means of giving credibility and authority to TPR regimes. This chapter describes the operation of TPR in the particular domain of advertising. This has the purpose of analyzing the mechanisms through which TPR can be enforced. In addition, it discusses the concerns these mechanisms throw up in terms of procedural fairness. TPR of advertising practices is a somewhat idiosyncratic case, however. First, the enforcement takes place in relative openness, as exposure and publicity of sanctions is a fundamental part of the industry’s approach to enforcement. While this enables relatively easy data collection, it is in stark contrast to the relative privacy and lack of transparency surrounding the enforcement of TPR in 1 This chapter draws from the research undertaken in the case study on ‘Transnational Private Regulation in Advertising’ within the framework of the HiiL Research Project on ‘Transnational Private Regulation: Constitutional Foundations and Governance Design’. More details on the case study and broader research project can be found on the project’s website: www.privateregulation.eu 302 Columns...
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