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Transnational Private Regulatory Governance: Ambiguities of Public Authority and Private Power

39 Pages Posted: 4 Dec 2012 Last revised: 21 Oct 2014

Peer C. Zumbansen

King’s College London, Dickson Poon Transnational Law Institute

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Date Written: December 4, 2012

Abstract

The continuing proliferation of transnational private regulatory governance challenges conceptions of legal authority, legitimacy and public regulation of economic activity. The transnational law merchant or, lex mercatoria, is a case in point in this context, as it represents a laboratory for the exploration of “private” contractual governance in a context, in which the assertion of public or private authority has itself become contentious. The ambiguity surrounding many forms of today’s contractual governance in the transnational arena echoes that of the far-reaching transformation of public regulatory governance, which has been characteristic of Western welfare states over the last few decades. What is particularly remarkable, however, is the way in which the depictions of “private instruments” and “public interests” in the post-welfare state regulatory environment have given rise to a rise in importance of social norms, self-regulation and a general anti-state affect in the assessment of judicial enforcement or administration of contractual arrangements. The paper suggests the need to short-circuit and to read in parallel the justifications offered for a contractual governance model, which prioritizes and seeks to insulate “private” arrangements from their embeddedness in regulated market contexts, on both the national and transnational level.

Keywords: Lex mercatoria, global governance, contractual governance, social norms, transnational law, globalization, knowledge society, legal pluralism, political governance

Suggested Citation

Zumbansen, Peer C., Transnational Private Regulatory Governance: Ambiguities of Public Authority and Private Power (December 4, 2012). Osgoode CLPE Research Paper No. 45/2012. Available at SSRN: https://ssrn.com/abstract=2185031 or http://dx.doi.org/10.2139/ssrn.2185031

Peer C. Zumbansen (Contact Author)

King’s College London, Dickson Poon Transnational Law Institute ( email )

Somerset House East Wing
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London, WC2R 2LS
United Kingdom

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