National Courts Review of Transnational Private Regulation

18 Pages Posted: 18 Jan 2011 Last revised: 3 Sep 2012

See all articles by Eyal Benvenisti

Eyal Benvenisti

University of Cambridge - Lauterpacht Centre for International Law

George W. Downs

New York University (NYU)

Date Written: January 17, 2011

Abstract

Transnational private regulatory bodies (TPRs) composed of either private actors or a hybrid of public and private actors are increasingly replacing direct governmental regulation or have begun to regulate areas that have never been subject to governmental oversight. Such privately-ordered, informal arrangements typically facilitate coordination without entailing long-term commitments, rigid rules that might constrain state executives, or more than minimal public scrutiny. By increasing the information asymmetries among the various (domestic and global) stakeholders, and by evading or rendering obsolete traditional constitutional checks and balances and other oversight mechanisms, TPR threatens to exacerbate the already existing regulatory oversight deficit that globalization is widely believed to have created in many democratic states. In this essay we discuss the prospect that national courts (NCs) will take it upon themselves to directly or indirectly review these TPRs and address some of the challenges that the TPRs potentially raise with respect to economic efficiency, democracy, and equality. We describe some of the tools that NCs have developed over the years in response to privatized regulation at the domestic level and examine the constraints that NCs face in applying similar such tools to TPRs, and assess the potential and limits of NC regulation.

Keywords: international law, regulation, administrative law, global governance, transnational private regulation

Suggested Citation

Benvenisti, Eyal and Downs, George W., National Courts Review of Transnational Private Regulation (January 17, 2011). Available at SSRN: https://ssrn.com/abstract=1742452 or http://dx.doi.org/10.2139/ssrn.1742452

Eyal Benvenisti (Contact Author)

University of Cambridge - Lauterpacht Centre for International Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

George W. Downs

New York University (NYU) ( email )

Bobst Library, E-resource Acquisitions
20 Cooper Square 3rd Floor
New York, NY 10003-711
United States
212-998-8020 (Phone)

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