Ensuring Compliance in a Global World
Edited by Fabrizio Cafaggi
Chapter 12: The Enforcement of Transnational Private Regulation: A Fictitious Oxymoron
JOBNAME: Cafaggi PAGE: 3 SESS: 7 OUTPUT: Thu Mar 29 15:10:36 2012 12. The enforcement of transnational private regulation: a ﬁctitious oxymoron Sabino Cassese, Elisa D’Alterio and Maurizia De Bellis1 1. THE CONCEPT OF TPR: SOME CAVEATS The concepts used when discussing TPR are ambiguous. Four caveats are necessary: (a) what TPR is, and, given that public–private distinction outside state regulation is very slippery, how private it is; (b) TRP enforcement terminology may be an oxymoron; (c) enforcement is a polysemous word; (d) enforcement is not a ‘one-stop shopping’ procedure. (a) A deﬁnition of private regulation should be provided and just how private TPR is should be established. There can be three answers to these questions and all of them are featured in this book. The ﬁrst answer is the following: that TPR is fundamentally selfregulation. In other words, private regulation is non-State, market driven regulation. A second answer assumes that TPR is private, but not as private as regulation inside the State is. It is private, but remote. It is far away from the regulatees, because the regulators are in other parts of the world, such as Geneva, or Washington, and the like. The third answer is that TPR is not entirely private. The public–private distinction derives from categories traditional to State regulation of business, while TPR is mixed: different actors, for instance governments, NGOs 1 This chapter is based on the conclusions of Professor Sabino Cassese presented at the Workshop ‘Enforcement of Transnational...
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