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  • Series: Handbooks of Research Methods in Law series x
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Monika Namysłowska

Compliance with contracts and regulations is increasingly being monitored by various experts, who assume the role of quasi-lawyers. The decision to employ a compliance officer, a trustee or a data protection officer primarily depends on the type of norms which need to be complied with. Particular professions aimed at monitoring compliance differ. However, all compliance specialists share several characteristic features, such as independence, which guarantee the effective performance of their tasks. Monitoring compliance is more and more often required by law and consists in performance of public tasks due to the delegation of the powers of public authorities to compliance professionals. The use of private actors to achieve the objectives of the state raises numerous doubts. The growing importance of compliance experts clearly illustrates the need to find a proper balance between the public and private interest as well as between private and public law. Keywords: compliance, monitoring compliance, compliance officer, trustee, data protection officer

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Paul Verbruggen

Regulatory standards developed by non-state, private actors are regularly incorporated into contemporary international commercial contracts. They serve as a means to regulate the quality attributes of products and services provided through transnational supply chains. Assessing and ensuring compliance with these private standards proves challenging, first of all because the qualities private standards aim to ensure are often credence qualities. Secondly, the most prominent standards are process based and can be unclear or ambiguous. This triggers important (socio-)legal questions concerning the substantive and procedural aspects of compliance with private regulatory standards in commercial contracts that this chapter seeks to discuss. In addressing these aspects it reviews (empirical) studies on the use of private standards in contracts, private certification schemes and case law on the interpretation of private standards. Keywords: private standards, compliance, enforcement, supply chain, certification, corporate social responsibility

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Dorota Leczykiewicz

This chapter examines the relation between private regulation, effectuated through contract, and the desirability of compliance with such regulation, from the perspective of the fundamental precepts of contract law, in particular freedom of contract. It investigates what intellectual advantages can be gained by looking at the question of contractual performance as that of regulatory compliance. It observes that, unlike the contractual approach, the regulatory approach invites us to elucidate the strategic choices which states and the EU need to make vis-à-vis the enforcement of private regulatory regimes. The chapter argues that despite its limitations, it is contract law which offers a much more promising start to providing the grounds of judicial review of contracts producing regulatory effects. It is accepted, however, that the framework of contract law would have to be reformed to include more socially focused grounds for review, supplementing but not replacing the considerations of freedom to choose one’s individual goals and ability to bargain. Keywords: private regulation, freedom of contract, private enforcement, regulatory theory, review of contracts

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Contract and Regulation

A Handbook on New Methods of Law Making in Private Law

Edited by Roger Brownsword, Rob A.J. van Gestel and Hans-W. Micklitz

Contract and Regulation: A Handbook on New Methods of Law Making in Private Law sheds light on the darker side of contracts. It begins by exploring the ‘regulatory space’ in which projects are planned, deals are done, and goods and services are consumed, then shows how a ‘bottom-up’ approach can be adopted in order to view this transactional space through the eyes of contractors. The expert contributors explore modes of governance that do not fit nicely into traditional contract theory, paying special attention to three key examples: governance and codes of conduction, networks and relations, compliance and use.
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Bård A. Andreassen, Hans-Otto Sano and Siobhán McInerney-Lankford

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Martin Scheinin

This chapter addresses one of the most important questions for the methodology of human rights law, both as a social practice and as a scholarly discipline, namely how to interpret the provisions of human rights treaties, many of which are seemingly vague or open-ended as texts. The author defends the view that there is a proper methodology for legal interpretation, understood as giving specific and concrete meaning to those texts. Even if different scholars or different lawyers may sometimes end up defending differing interpretations, the interpretive activity of each of them can be assessed for the correctness of its methodology and ultimately also for the correctness of the answer arrived at.

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Siobhán McInerney-Lankford

Siobhan McInerney-Lankford examines ‘internal’ and ‘external’ challenges of human rights legal research. The first relates to the depth and critical quality of mainstream human rights legal research and the tendency of human rights lawyers to assume the validity of the norms underpinning human rights law. The second challenge relates to the breadth and orientation of human rights law, which often overlooks the impact and policy uptake of human rights norms. The chapter concludes by exploring the implications of these critiques for human rights legal methodology and the need to recognize and safeguard the distinct contributions of human rights discourse.

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Hilde Bondevik and Inga Bostad

The chapter gives an introduction to the method of philosophical hermeneutics and the prejudicial character of understanding. We discuss how the concepts of hermeneutics can be used in the argumentation and interpretation of legal texts and human rights principles and treaties, in applied research, as well as in theoretical analyses of human rights issues. Hermeneutics finds favor with the field of human rights and in situations where we need to understand and communicate across different social groups and cultures. Referencing Gadamer, Benhabib and Nussbaum we seek to bridge the traditional gap between the humanities and legal science, which have often been regarded as two disciplines with distinctive theoretical and methodological approaches. The case of the ‘burqa bans’ or the ban on face covering will be applied as a case study.

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Edward Anderson

Despite the apparent skepticism, economists and human rights scholars share much in common. Many indicators used by development economists to measure human development have been used as proxies for the realization of human rights. Development economists and human rights scholars have also been working together to assess whether governments are doing as much as they can to realize human rights, given available resources. Finally, economists and (increasingly) human rights scholars both make substantial use of multiple regression analysis to investigate relationships of interest, and face similar methodological challenges in implementing this approach. All these areas have potential for fruitful collaboration.

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Steven L.B. Jensen and Roland Burke

Human rights has been described as a paradigmatic site for writing transnational history. While there is much promise in the discipline, history is not neutral territory for human rights researchers to navigate. With greater awareness of, and responsiveness to, the methodological challenges attendant to human rights history, historical inquiry can make a more substantial contribution to the field. This chapter identifies some blind spots that have influenced human rights research, and seeks to address questions about working with historical sources. It also charts out methodological approaches that can make historical research a more valuable, critical-reflective companion to understanding the evolution of human rights past and present.