Transnational Private Regulation. Regulating Private Regulators
Forthcoming in S. Cassese, Research handbook on global administrative law, Edward Elgar 2016.
28 Pages Posted: 9 Jun 2015
Date Written: June 8, 2015
Transnational private regulation (TPR) consists of regulatory regimes that are enacted by private actors with or without the collaboration of states and international organizations. Within TPR, there are various organizational ‘densities’. In some cases, there are multiple regimes, while in others a monopoly or an oligopoly emerges. The reasons for these differences are partly historical and partly dependent on the existence and the effectiveness of public international organizations that operate in the same sector. While monopoly or oligopoly may undermine the legitimacy, efficiency and effectiveness of the regulatory process, the multiplicity of regulatory regimes also poses questions of institutional design. A plurality of regimes frequently reflects divergent interests, and gives rise to conflicting interactions. A multiplicity of regimes does not necessary translate into regulatory pluralism. The multiplicity of regimes can generate complexity, causing search and management costs to rise without necessarily expanding the choices available to regulated entities. It can increase conflicts and inefficient regulatory competition. Often, regulated entities and beneficiaries do not benefit from this proliferation. To address the shortcomings of this complexity and fragmentation in the private sphere, various institutional responses have been offered. This contribution focuses on the organization of the transnational regulatory space and the institutional responses to the proliferation of private schemes at a sectoral level. It is argued that many responses concur. One, which has been widely articulated, is orchestration by public organizations; another, which has been less investigated, is the emergence of private meta-regulators to coordinate the activities and governance of individual regulators, increase legitimacy and improve effectiveness. This growing phenomenon is still sector-specific, but it is likely to develop across sectors in the near future, especially in relation to the reporting and assessment tools for the evaluation of the effectiveness of individual regulatory regimes. Relying on current examples, the policy implications of the growth of meta-private regulation, its legitimacy and its effectiveness are drawn.
Keywords: transnational regulation, metaregulation, private regulation, legitimacy, effectiveness, efficiency
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