Making European Private Law
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Making European Private Law

Governance Design

Edited by Fabrizio Cafaggi and Horatia Muir Watt

This book covers various perspectives on the challenge of designing governance for EPL: the implications of a multi-level system in terms of competences, the interplay between market integration and regulation, the legitimacy of private law making, the importance of self-regulation, the usefulness of conflict of law rules, the role of intergovernmental institutions, and the aftermath of enlargement. In addressing these, the book’s achievements are to successfully link two areas of scholarship that have so far remained separate, EPL and new modes of governance, and to address institutional reforms. The contributions offer different proposals to improve governance: the creation of a European Law institute, the improvement of judicial cooperation among national courts, the use of committees for implementation of EPL.
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Chapter 10: Regulatory Agencies, Regulatory Legitimacy, and European Private Law

Tony Prosser


Tony Prosser INTRODUCTION It is perhaps unusual for a public lawyer such as myself to contribute to a project about private law. However, public lawyers should have expertise in governance issues which are central to this project, and issues arising from privatisation and from regulation loom large in both public and private law, often with substantial overlaps between them. In legal practice, it is private law which has occupied most attention, for example through the drafting of contracts and the development of compliance rules in such areas as financial services and competition law; in academic debate about principles of regulation public law has usually been dominant. Thus collaboration within this project has the potential to be particularly fruitful. First, however, a note of caution must be sounded about classifications. DIFFICULTIES OF CLASSIFICATION Though I intend to discuss some general issues relating to regulation, much of what I am saying will relate to the role of independent regulatory agencies. These are now well established as part of the European regulatory scene and are central to any debate about the formulation of regulatory policies at both EU and national levels.1 However it is worth noting that, in their most recent form, as bodies regulating (among other fields) utilities, broadcasting, competition, and financial services, they originated more from the common law systems of the UK and the USA than from Continental Europe. These are common law systems without a clear separation between public and private 1 There is now an extensive literature on...

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