A Comparative Analysis of Transnational Private Regulation: Legitimacy, Quality, Effectiveness and Enforcement

Abstract

Transnational private regulation (TPR) is a growing phenomenon. It creates new markets and dissolves old ones. TPR contributes to the regulation of existing markets, it increases the protection of fundamental rights and it enables or disables communities to participate in global rule making. The standing of TPR and its role regulatory control continues to grow. TPR presents new characteristics departing from more conventional forms of domestic self-regulation. It reflects a transfer of regulatory power from the domestic to the transnational and from the public to the private sphere with significant distributional consequences. Such transfers modify but do not necessarily reduce the role of States especially in relation to standards’ implementation and enforcement. While there is a common core of similar features across regimes, the degree of sector specificity is high, determined by context-specific institutional and economic factors, different drivers and regulatory needs. The Report addresses the development of transnational private regulation in three macro-areas: financial markets, consumer protection and fundamental rights. It encompasses 11 case studies focusing on four dimensions: legitimacy, quality, effectiveness and enforcement. The 11 case study sectors are briefly outlined in Appendix 1. These case studies have been conducted in the context of the research project Transnational Private Regulation: Constitutional Foundations and Governance Design.

Keywords: regulation; legitimacy; effectiveness; transnational private regulation; enforcement; quality