Enforcement of Transnational Regulation
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Enforcement of Transnational Regulation

Ensuring Compliance in a Global World

Edited by Fabrizio Cafaggi

This book addresses the different mechanisms of enforcement deployed in transnational private regimes vis-à-vis those in the field of public transnational law.
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Chapter 3: National Courts and Transnational Private Regulation

Eyal Benvenisti and George W. Downs


Eyal Benvenisti and George W. Downs I. INTRODUCTION In recent years, the growing reliance on private actors in the domestic sphere1 to perform functions and deliver services traditionally provided by governmental actors has migrated to the international sphere. Transnational private regulation (TPR) bodies composed of either private actors or a hybrid of public and private actors have increasingly either replaced direct governmental regulation or have begun regulating areas that have never been subject to governmental oversight. Such private initiatives result from full or partial delegation of authority by governments to private actors, or from new private initiatives that are approved, tolerated, or left unnoticed by overburdened governments. These TPR bodies either regulate their own behavior by deciding, for example, which food safety measures they will adopt for their own purchases of agricultural products,2 or 1 On privatization in the domestic sphere and its public law implications see e.g. Gillian E. Metzger (2003), ‘Privatization as delegation’, 103 Colum. L. Rev. 1367, Jody Freeman (2000), ‘The private role in public governance’, 75 NYU L. Rev. 543, Harm Schepel (2005), The Constitution of Private Governance: Product Standards in the Regulation of Integrating Markets, Hart Publishing; Martha Minow (2002), Partners, Not Rivals: Privatization and the Public Good, Beacon Press. 2 Jan Wouters, Axel Marx and Nicolas Hachez (2008), ‘Private standards, global governance and transatlantic cooperation – the case of food safety governance’, 3, Leuven Centre for Global Governance Studies; Fabrizio Cafaggi (2010), ‘Private regulation, supply chain and contractual networks: the case of food safety’,...

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