Scott, Colin --- "Non-judicial Enforcement of Transnational Private Regulation" [2012] ELECD 492; 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 4

Section Title: Non-judicial Enforcement of Transnational Private Regulation

Author(s): Scott, Colin

Number of pages: 18

Extract:

4. Non-judicial enforcement of
transnational private regulation
Colin Scott


1. INTRODUCTION

Transnational private regulation (TPR) is a phenomenon of growing sig-
nificance across a wide range of policy domains, including the environ-
ment, food standards, labour rights and financial markets. Thinking about
regulatory regimes generally, they are now conventionally described as
comprising three distinct elements ­ some norms, rules or goals around
which the regime is organized; feedback or monitoring mechanisms to
detect deviations from the norms; and mechanisms for modifying behav-
iour which deviates (Hood et al. 2001). The making of both national and
transnational private norms has received a significant amount of attention
in the literature (e.g. Hallström 2004; Schepel 2005), but monitoring and
enforcement have been relatively neglected. In this chapter I ask to what
extent the enforcement of TPR regimes is similar to or different from
national public regimes of regulation, and what effect do differences in
enforcement have on the reach of regimes. Reach is perhaps narrower in
one way because it is dependent on contracts in many instances (in contrast
with generally applicable public law instruments), but more extensive in
other ways because less restricted by jurisdictional boundaries. Weaknesses
associated with the voluntary character of much TPR are likely to be more
apparent than real in circumstances where participation in TPR, whether
through adopting widely accepted technical standards or norms of Corpo-
rate Social Responsibility, or participating in associational codes, is a de
facto condition of market participation. Given the ubiquity and ...