Edited by Sabino Cassese
Chapter 10: Transnational private regulation: regulating global private regulators
Transnational private regulation (TPR) is on the rise. It covers a diverse range of policy areas and fields: from product safety to financial services, from intellectual property rights to forestry, from data protection to civil aviation, from electronic commerce to anticorruption and money laundering. It permeates the activities of many industries and has an impact on the choices and rights of consumers, investors, employees and environmental organizations. In many areas, transnational private regimes complement, supplement or anticipate public regulation. These regimes are voluntary and promote stricter standards than those enacted by public legislators at the domestic and international levels. TPR includes schemes that emerge pursuant to independent decisions of private actors and schemes issued under the political pressure of public actors and the media. In the first case, individual regulators may decide to create an umbrella organization to promote their activities and broaden the geographical scope of their activities. In the latter, international organizations may promote the creation of meta-regulators, to decrease fragmentation and enhance coordination among regimes. TPR schemes are characterized by the significant presence of private actors, the use of private law instruments, and the voluntary nature of the standards. They encompass some forms of monitoring and enforcement, which are often multiple and co-exist. TPR is a relatively new phenomenon, at least in modern times, in which regulation has traditionally been considered a public function to be performed by states at domestic and international levels.
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