CYIL 2014

SANDERIJN DUQUET – JAN WOUTERS

CYIL 5 ȍ2014Ȏ

The very outlook of the output created may be similar to that of public norms

in global governance. To a considerable extent, TPR relies on formal mechanisms,

especially contracts.

Norms that have been considered under the TPR framework

may take the form of quality control standards (for example in sectors such as tourism),

standards regulating behaviour,

and labour and environmental standards.

Yet, the

absence of the word ‘law’ in TPR’s name and definition is striking. The authority

that is exercised, if any, is private and extends to other private actors in the network

or multi-stakeholder forum. However, because of the effects created, conceptions of

public authority, legitimacy, and accountability are studied in this context as well.

Concerns stem from the way TPR mechanisms are organized. Privatized forms of

regulation are a top-down form of governance, in which the regulated subjects have

little input into its content or application.

It has been argued by Curtin and Senden

that the need for democratic accountability, is greater ‘if a regime is or has become

more compulsory, has more external effects, a higher impact on people’s lives, or

involves the exercise of public power or a public function’.

Others challenge the

premise that there is a useful role for democratic control mechanisms to monitor

activities of private governance bodies.

TPR’s connection with legal scholarship remains challenging. TPR schemes

describe phenomena that are considered to be outside the scope of law, even more

so than IN-LAW, GAL or IPA. Nevertheless, TPR scholars have consistently argued

that a legal integration needs to take place in all layers of global governance. The

existing international legal framework, however, is considered inadequate to stimulate

because of fundamental climatic or geographical factors or fundamental technological problems.’ In

practice, the TBT regime obliges WTO Member States to use international standards of (private)

standardization bodies, e.g. the International Organization for Standardization (ISO) as the technical

basis of regulations are used in by WTO members. For further reading on the status of private sector

standards under the WTO SPS Agreement, see Prévost, D., “Private Sector Food-Safety Standards

and the SPS Agreement: Challenges and Possibilities”,

South African Yearbook of International Law

2008, Vol. 33, pp. 1-37; Duquet, S., Geraets, D., “Food Safety Standards and Informal International

Lawmaking”. In: Berman, A., Duquet, S., Pauwelyn, J., Wessel, R. A., Wouters, J (eds.),

Informal

International Lawmaking: Case Studies

, Oslo: TOAEP Publishers, 2012, pp. 397-436.

Borowicz, M.K., “Financial Markets, Regulatory Failures and Transnational Regulatory Safety Nets:

The Building of a Policy-Making Metaphor”. In: Berman, Duquet, Pauwelyn, Wessel, Wouters,

op. cit. 54, p. 241.

Latty, F.,

La “Lex Sportiva”: Recherche sur le Droit Transnational

, Leiden, Martinus Nijhoff Publishers,

2007 ; Casini, L., “The Making of a Lex Sportiva by the Court of Arbitration for Sport”,

German Law

Journal

, 2011, Vol. 12, No. 5, pp. 1317-1340.

Kolben, K., “Transnational Labor Regulation and the Limits of Governance”,

Theoretical Inquiries in

Law

, 2011, Vol. 12, No. 2, pp. 404-437.

Zumbansen, P., “Transnational Private Regulatory Governance: Ambiguities of Public Authority and

Private Power”,

Osgoode CLPE Research Paper

, No. 45, 2012.

Kolben, op. cit. 59, p. 408.

Curtin, D., Senden, L., “Public Accountability of Transnational Private Regulation: Chimera or Reality?”,

Journal of Law and Society,

2011, Vol. 38, No. 1, pp. 163-188, p. 174 .

Vibert, F.,

Democracy and Dissent. The Challenge of International Rule Making

. Cheltenham: Edward

Elgar Publishers, 2011.