CYIL 2014

SANDERIJN DUQUET – JAN WOUTERS

CYIL 5 ȍ2014Ȏ

reiterates that it is exactly the intention of actors involved to avoid formalities under

domestic and/or international law.

TPR has the weakest connection to PIL, as it

takes place outside the public sphere. An indirect relationship between transnational

private regulation and PIL exists in the former being a vehicle to harden soft law:

private regulation complements and increases the effectiveness of public rules by

tailoring them to specific markets.

Third, at the core of all legal scholarship related to non-traditional law are

questions concerning accountability and effectiveness. Accountability mechanisms

exist that are hierarchal (exercised by supervisors within the agencies), fiscal (exercised

by the Parliament, the Court of Auditors), legal (exercised through complaints or by

courts). IN-LAW scholars promote open and participative deliberation processes.

The most important accountability mechanisms surface when international output

is implemented domestically. Responsibilities of state and sub-state actors have been

identified to keep informal normative processes accountable, through parliamentary

scrutiny or by subjecting them to the review of domestic courts. TPR, likewise, observed

the importance of the domestic sphere to hold actors to account for norms produced.

Relevant accountability mechanisms for private regulations entering the domestic

level relate to the market itself (shareholders, manufacturers, and consumers) and

peer private standard-setters. The enhancement of legal accountability mechanisms

at the international level has been placed upfront by the GAL and IPA schemes. GAL

scholars have expressly focused on the use of administrative principles internationally

‒ think of participatory decision-making standards, transparency requirements

and the existence of complaints mechanisms. In this regard, Benedict Kingsbury

observed the growing use of administrative criteria in judicial review practices that

scrutinize acts in global governance.

Further work is needed with a view to the

further integration of legal mechanisms and principles. This observation is seconded

in the writings of IN-LAW and IPA scholars, although modalities may be different.

IPA, specifically, has advocated for the further development of legal accountability

mechanisms at the international level. At this stage, though, international courts

and administrative tribunals play a moderate role, reviewing only a small number of

lawmaking processes and decision-making procedures.

The foregoing discussion leaves one with the slightly unsatisfactory feeling that

more academic work is needed with regard to non-traditional norms at the global

level. Plenty of scholars have contributed to this research area with their work, often

resulting in stimulating research results. In particular, the many case studies that

have been conducted are of interest and value to students and practitioners.

Yet,

room for improvement exists, in particular in developing an overall legal framework.

Borowicz, op. cit. 57.

Cafaggi, op. cit. 51.

Kingsbury, op. cit. 35.

See, among others, the case studies collected in Cassese, S., Carotti, B., Casini, L., Cavalieri, E.,

Macdonald, E., Global Administrative Law: The Casebook, Rome/New York: IRPA-IILJ, 3rd edition,

2012; and in Berman, Duquet, Pauwelyn, Wessel, Wouters, op. cit. 54.