Ensuring Compliance in a Global World
Edited by Fabrizio Cafaggi
Chapter 4: Non-judicial Enforcement of Transnational Private Regulation
Colin Scott 1. INTRODUCTION Transnational private regulation (TPR) is a phenomenon of growing signiﬁcance across a wide range of policy domains, including the environment, food standards, labour rights and ﬁnancial markets. Thinking about regulatory regimes generally, they are now conventionally described as comprising three distinct elements – some norms, rules or goals around which the regime is organized; feedback or monitoring mechanisms to detect deviations from the norms; and mechanisms for modifying behaviour which deviates (Hood et al. 2001). The making of both national and transnational private norms has received a signiﬁcant amount of attention in the literature (e.g. Hallström 2004; Schepel 2005), but monitoring and enforcement have been relatively neglected. In this chapter I ask to what extent the enforcement of TPR regimes is similar to or different from national public regimes of regulation, and what effect do differences in enforcement have on the reach of regimes. Reach is perhaps narrower in one way because it is dependent on contracts in many instances (in contrast with generally applicable public law instruments), but more extensive in other ways because less restricted by jurisdictional boundaries. Weaknesses associated with the voluntary character of much TPR are likely to be more apparent than real in circumstances where participation in TPR, whether through adopting widely accepted technical standards or norms of Corporate Social Responsibility, or participating in associational codes, is a de facto condition of market participation. Given the ubiquity and signiﬁcance of TPR in many sectors it is striking that...
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