Tort as Meta-Regulation: The Liability of Private Transnational Regulators

42 Pages Posted: 10 May 2021

See all articles by Oren Perez

Oren Perez

Bar-Ilan University - Faculty of Law

Yotam Kaplan

Bar-Ilan University - Faculty of Law

Date Written: May 7, 2021

Abstract

Consumers in developed countries regularly voice concerns regarding the working conditions under which goods, especially clothing and electronics, are manufactured in developing countries. Nobody wants slavery sneakers or a sweatshop iPhone; we all want to purchase fair trade goods. But how do we know we can trust a fair-trade label? Such certificates are given by private transnational organizations, which fill a regulatory vacuum created by the persisting weakness of international organizations such as the International Labor Organization (ILO), the United Nations Environment Programme (UNEP), and the World Health Organization (WHO). Absent any global oversight framework that supervises the work of such private regulators, it is unclear whether these certificates can be trusted, or whether they represent a mere whitewashing/greenwashing strategy, which allows multinational enterprises to turn a blind eye to manufacturing conditions across the less visible tiers of their global supply chains. To increase the accountability of this system, we propose holding private transnational regulators liable in tort if their actions (or omissions) generated harms. We support this proposal through a comparative legal analysis and discuss the practicalities of its implementation. We argue that this proposal will support and facilitate positive network effects in the global private regulation system.

Keywords: private transnational regulators, tort liability, CSR, transnational litigation, global supply chain

JEL Classification: K13

Suggested Citation

Perez, Oren and Kaplan, Yotam, Tort as Meta-Regulation: The Liability of Private Transnational Regulators (May 7, 2021). University of Pennsylvania Journal of International Law, Vol. 43, No. 1, 2021, Available at SSRN: https://ssrn.com/abstract=3841391

Oren Perez (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel
+972-3-5317798 (Phone)
+972-3-5351856 (Fax)

Yotam Kaplan

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

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