Ensuring Compliance in a Global World
Edited by Fabrizio Cafaggi
Chapter 2: Enforcing Transnational Private Regulation: Models and Patterns
Fabrizio Cafaggi1 1. INTRODUCTION In this chapter, the analysis focuses on transnational private regulation’s (TPR) enforcement and its inﬂuence on governance choices by private regulators. Enforcement of transnational regimes can refer to transnational and, to a limited extent, even to domestic litigation, where two or more disputants belong to the same jurisdiction.2 Transnational enforcement is related to three different classes of conﬂicts: (1) within the regulatory body; (2) among organizations performing regulatory functions in the same ﬁeld; and (3) among regulators across ﬁelds.3 The focus of this book is on conﬂicts ‘within’ rather than ‘among’ organizations, but references to regimes’ conﬂicts are occasionally made. In this chapter, a relative broad functional deﬁnition of enforcement is assumed, due to its manifold functions. Enforcement of TPR contributes: (1) to designing the boundaries between different transnational regulatory regimes and their rule-making power; (2) to deﬁning the domain and the 1 An earlier version of this chapter was originally circulated as a framing paper for the conference held at EUI in May 2010 within the HiiL project on transnational private regulation. The structure still preserves the character of issues mapping. I thank Eyal Benvenisti, Kevin Davis, Cindy Estlund and Dick Stewart for useful discussions at NYU when I visited the law school in 2009. Research and editorial assistance by Federica Casarosa and Rebecca Schmidt is gratefully acknowledged. Responsibility for the text is mine. 2 There is a growing debate on transnational litigation and how it differs from national...
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