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Enforcing Transnational Private Regulation

A Comparative Analysis of Advertising and Food Safety

Paul Verbruggen

Most recent studies on transnational private regulation have limited themselves to the examination of a single regime, industry or sector. This book fills a gap in the current literature, offering a rich comparative study of the institutional design of transnational private regulation in the fields of advertising and food safety.
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Marta Cantero Gamito

Increasing attention is being paid to the reach of EU rules, policies and regulatory standards beyond the EU marketplace. This edited volume provides a critical account of the wider role of the EU in an increasingly bewildering geopolitical scene, where the transnational and globalised political economy coexists with the current attempted return to the nation-State. We have identified at least four different, but overlapping, ways in which the EU uses private transnational governance practices with a view to expanding the regulatory space of EU rules, policies and values: (1) ‘EU governance through EU institutions’; (2) (EU) governance through epistemic communities; (3) ‘EU governance through substance’; and (4) ‘EU governance through privately set procedures’. With contributions from different sectors, the book reveals how private law tools such as privately developed standards, contracts and codes can be used to achieve public aims where public law struggles to overcome the territorial as well as authority and legitimacy limits of publicmade law.

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Rob van Gestel and Peter van Lochem

From a traditional constitutional perspective, regulatory duties should be carried out by persons directly accountable to the electorate. Since the EU legislator frequently outsourced a lot of technical rulemaking to private standardization bodies, this became complicated due to the Meroni doctrine of the CJEU, which seemed to prohibit delegation of rulemaking powers to private organizations. The idea behind this is what Stewart branded the transfer of legitimacy from parliament via delegation to nonelected bodies, which can be held accountable by the people, the ‘transmission belt theory’. We argue that this theory is incapable of warranting the legitimacy and effectiveness of modern regulatory regimes in which private standards and agency rulemaking are used to implement, supplement, and sometimes even replace secondary legislation. We illustrate this by studying the EU’s New Approach and sketch three possible scenarios to remedy existing problems: the agency model, the public–private partnership model and the disentanglement model.

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Paul Verbruggen

Private food safety standards regulate significant parts of the global trade in food. The highly effective implementation of those standards in global supply chains by private law means has challenged their legitimacy, however. This chapter discusses whether and to what extent the European Union and its Member States have sought to engage with private food safety standards and ‘constitutionalize’ them by encouraging and requiring adherence to good governance norms. The chapter reveals that the EU plays at least two constitutionalizing roles: first, it provides a basis and structure for private food safety standards around which their procedural and substantive requirements are organized; second, it mediates the development of these standards as a means to ensure compliance with its food safety laws. In fulfilling these roles, the EU is part of an ongoing transnational dynamic that both shapes and contests the legitimacy and constitutional standing of private food safety standards.

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Barbara Warwas

This chapter analyses the implications of the changing interplay between arbitration practices and EU policies, rules and standards that apply to arbitration beyond the EU marketplace. It is commonly assumed that the EU’s recent focus on arbitration is a response to changes in arbitration practices. In contrast, my hypothesis posits that arbitration is proactively used by the EU – in particular, the European Commission (EC) – as a tool of transnational legal ordering that promotes EU law beyond its borders. There are two main fields where the EU has recently promoted arbitration: international trade and investment law (broadly referred to as international economic law) and EU-regulated markets, including crossborder consumer redress. The aim of this chapter is to (1) present a summary account of EU policies and rules on arbitration in these fields, (2) demonstrate the increasing power of the EU in governance and the standardization of dispute settlement in international economic law and (3) examine the effect of such power on the development of European regulatory private law beyond EU borders.

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Gerald Spindler

This chapter presents the development of the internet, in particular the harmonization of ecommerce, and introduces some of the different actors involved. To do so, first the technical and general characteristics of the internet and ecommerce and the challenges they pose are displayed. Then the Internet Corporation for Assigned Names and Numbers (ICANN), regulating assignment of IPv6 numbers, is presented as a striking example of internet governance. Other main aspects are the standardization of ecommerce through electronic platforms, in particular blockchain technology and the standardization of licence contracts in terms of copyright law.

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Christoph Busch

Digital platforms are not only market intermediaries between different groups of platform users. They are also providers of governance mechanisms that are essential for the functioning of digital markets. Moreover, public regulators are increasingly relying on platforms as regulatory intermediaries, drawing on their superior operational capacities, data pools and direct access to platform users. A future EU regulatory policy for the platform economy should consider these multiple roles of digital platforms. Considering the rapid pace of technological innovation and the variety of different business models, the regulatory framework should be flexible enough to adapt to technological and economic developments. This chapter suggests a combination of principles-based legislation and ‘technolegal standards’ elaborated by European standard setting organisations involving all relevant stakeholders. A model for coregulation could be the ‘New Approach’, which has been tried and tested over many years in the field of product safety and which could be transferred to platform regulation.

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Mislav Mataija

This chapter will discuss to what extent WTO law, and in particular the TBT Agreement, controls and recognizes private standard setting as a form of transnational governance, and how the mechanisms of control and recognition interact. It will focus on the TBT Agreement’s disciplines, including nondiscrimination and necessity, and its requirement for WTO Members to base their product rules on ‘international standards’. The chapter argues that WTO law is one part of a larger story about the ‘juridification’ of standards: standard setting organizations are increasingly interacting with public law and mimicking public law in their internal governance structures. In that context, control and recognition go hand in hand. The application of WTO disciplines against WTO Members that rely on private standards also implies a sort of recognition. At the same time, the TBT rules on international standards incentivize both development of global standards by private actors and reform of those actors’ governance and procedures.

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Lucila de Almeida

This chapter advances two claims. First, the EU has enacted a set of rules that affect the private order of organized markets and, in particular, the terms and conditions of standard contracts that daily frame thousands of global trades in exchanges located in the EU. Second, the EU explanatory justification for enactment of these rules is based on fairness. While EU law has advanced rules that, for example, standardize products offered in trading exchanges and reallocate risks among exchange members for misconduct, trading platform members have agreed upon transposing those rules into the text of standard agreements for trading. The phenomenon of mirroring the rules of EU law in the terms and conditions of standard agreements is what this chapter calls standardization of standard contracts. The standardization of standard contracts is then described as a twofold process: codification and intrusion.

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Teemu Juutilainen

This chapter studies the EU Securitisation Regulation of 2017, with particular focus on its criteria for simple, transparent and standardised (STS) securitisation, as an instance of transnational legal ordering. Two discrete aspects of transnationalisation stand out. The first aspect explains why the Securitisation Regulation should be regarded as transnational legal ordering, although it is by form ordinary EU legislation. The explanation is found in what can be described as a symbiotic relationship between the EU and transnational bodies, particularly the Basel Committee on Banking Supervision (BCBS) and the International Organization of Securities Commissions (IOSCO), and in the involvement of a broad epistemic community in international finance. The second aspect of transnationalisation focuses on the potential extra-EU effects of the Securitisation Regulation. Possible scenarios include fragmentation of global markets, but also the Securitisation Regulation becoming a model for other jurisdictions, and norm export through a future equivalence regime for third country securitisers.