Edited by Hans-W. Micklitz and Takis Tridimas
Chapter 8: Transnational risk regulation and contractual governance
Risks spread across territories regardless of the jurisdictional boundaries. They correlate with the scope of markets, of economic activities, including production and consumption, and the geographic impact of natural events. These characteristics have made it ever more difficult to regulate risks at domestic level, calling for international regulatory coordination among national regulators in order to adapt to the transnational reach of regulated entities’ activities. In this perspective general principles concerning risk assessment and risk management have been developed by international organizations. The globalization of production processes with the contribution of new information and transport technologies has expanded and fragmented the number of relevant actors liable to create risks while increasing the volume and intensity of trade. Both the characteristics of the risks and their assessment and management presuppose coordination to detect, to manage and to mitigate the consequences once risks occur. The transnational dimension brings changes along several dimensions: actors, instruments, effects. After briefly surveying some of these changes we shall concentrate on contractual risk regulation. By contractual risk regulation we mean a form of regulation translating into agreements between regulators and regulated. Such form is compatible with different degrees of overlap from those where regulators and regulated differ entirely to those where there is partial coincidence between the two categories. After describing the general features of contractual risk regulation we shall examine different forms and instruments, including transnational commercial contracts, certification contracts and their interaction.
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