The Role of the EU in Transnational Legal Ordering
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The Role of the EU in Transnational Legal Ordering

Standards, Contracts and Codes

Edited by Marta Cantero Gamito and Hans -W. Micklitz

This book explores questions of transnational private legal theory in the context of the external dimension of EU private law. The interaction between existing theories of transnational ordering and the external reach of European Regulatory Private Law is articulated through examination of what are found to be the three major proxies of transnational private ordering: private contracts, standards and codes.
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Chapter 7: Private standard setting in the TBT Agreement: control and recognition

Mislav Mataija

Abstract

This chapter will discuss to what extent WTO law, and in particular the TBT Agreement, controls and recognizes private standard setting as a form of transnational governance, and how the mechanisms of control and recognition interact. It will focus on the TBT Agreement’s disciplines, including nondiscrimination and necessity, and its requirement for WTO Members to base their product rules on ‘international standards’. The chapter argues that WTO law is one part of a larger story about the ‘juridification’ of standards: standard setting organizations are increasingly interacting with public law and mimicking public law in their internal governance structures. In that context, control and recognition go hand in hand. The application of WTO disciplines against WTO Members that rely on private standards also implies a sort of recognition. At the same time, the TBT rules on international standards incentivize both development of global standards by private actors and reform of those actors’ governance and procedures.

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