Contract and Regulation
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Contract and Regulation

A Handbook on New Methods of Law Making in Private Law

Edited by Roger Brownsword, Rob A.J. van Gestel and Hans-W. Micklitz

Contract and Regulation: A Handbook on New Methods of Law Making in Private Law sheds light on the darker side of contracts. It begins by exploring the ‘regulatory space’ in which projects are planned, deals are done, and goods and services are consumed, then shows how a ‘bottom-up’ approach can be adopted in order to view this transactional space through the eyes of contractors. The expert contributors explore modes of governance that do not fit nicely into traditional contract theory, paying special attention to three key examples: governance and codes of conduction, networks and relations, compliance and use.
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Chapter 8: Private regulatory standards in commercial contracts: questions of compliance

Paul Verbruggen

Abstract

Regulatory standards developed by non-state, private actors are regularly incorporated into contemporary international commercial contracts. They serve as a means to regulate the quality attributes of products and services provided through transnational supply chains. Assessing and ensuring compliance with these private standards proves challenging, first of all because the qualities private standards aim to ensure are often credence qualities. Secondly, the most prominent standards are process based and can be unclear or ambiguous. This triggers important (socio-)legal questions concerning the substantive and procedural aspects of compliance with private regulatory standards in commercial contracts that this chapter seeks to discuss. In addressing these aspects it reviews (empirical) studies on the use of private standards in contracts, private certification schemes and case law on the interpretation of private standards. Keywords: private standards, compliance, enforcement, supply chain, certification, corporate social responsibility

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