Benvenisti, Eyal; Downs, George W. --- "National Courts and Transnational Private Regulation" [2012] ELECD 491; in Cafaggi, Fabrizio (ed), "Enforcement of Transnational Regulation" (Edward Elgar Publishing, 2012)

Book Title: Enforcement of Transnational Regulation

Editor(s): Cafaggi, Fabrizio

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781003725

Section: Chapter 3

Section Title: National Courts and Transnational Private Regulation

Author(s): Benvenisti, Eyal; Downs, George W.

Number of pages: 16

Extract:

3. National courts and transnational
private regulation
Eyal Benvenisti and George W. Downs


I. INTRODUCTION

In recent years, the growing reliance on private actors in the domestic
sphere1 to perform functions and deliver services traditionally provided by
governmental actors has migrated to the international sphere. Trans-
national private regulation (TPR) bodies composed of either private actors
or a hybrid of public and private actors have increasingly either replaced
direct governmental regulation or have begun regulating areas that have
never been subject to governmental oversight. Such private initiatives result
from full or partial delegation of authority by governments to private
actors, or from new private initiatives that are approved, tolerated, or left
unnoticed by overburdened governments. These TPR bodies either regulate
their own behavior by deciding, for example, which food safety measures
they will adopt for their own purchases of agricultural products,2 or



1
On privatization in the domestic sphere and its public law implications see e.g.
Gillian E. Metzger (2003), `Privatization as delegation', 103 Colum. L. Rev. 1367,
Jody Freeman (2000), `The private role in public governance', 75 NYU L. Rev. 543,
Harm Schepel (2005), The Constitution of Private Governance: Product Standards in
the Regulation of Integrating Markets, Hart Publishing; Martha Minow (2002),
Partners, Not Rivals: Privatization and the Public Good, Beacon Press.
2
Jan Wouters, Axel Marx and Nicolas Hachez (2008), `Private standards,
global governance and transatlantic cooperation ­ the case of food safety govern-
ance', 3, Leuven Centre for Global Governance Studies; Fabrizio Cafaggi (2010),
`Private regulation, ...