https://link.springer.com/content/pdf/10.2307%2F3343168.pdf

Development as Freedom

The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society

The Concept Of Law

This book opens a fresh chapter in the debate on local enterprise clusters and their strategies for upgrading in the global economy. The authors employ a novel conceptual framework in their research on industrial clusters in Europe, Latin America and Asia and provide new perspectives and insights for researchers and policymakers alike.

Governance in global value chains

International law is a social historical legal tradition that emerged and spread over time to deal with matters between and across polities. This statement may appear obvious, but its full implications point to a thorough reconstruction of theoretical accounts of international law. Part I recounts how Bentham inadvertently created an enduring set of theoretical problems for international law. Part II describes international law as a social historical legal tradition, showing its European origins and diffusion with imperialism, and exposing three slants in international law. Part III broadens the lens to sketch the history of interaction between and across polities and how this has been managed. Part IV details contemporary efforts to deal with this interaction through organizations and transnational law and regulation. With this background in place, Part V elaborates a series of theoretical clarifications. First I unravel several confusions that result from construing state law and international law as parallel categories and conflating system with category. Then I explain why international law is a form of law, although not a unified hierarchical system. Contrary to common perceptions, furthermore, I show that state law and international law are not and have never been separate systems. Finally, I clarify the relationship between international law and transnational law and regulation. Aspects of this theoretical reconstruction may initially appear surprising, but they follow from the insight that international law is a social historical tradition.

What Is International Law

Transnational Private Regulation (TPR) constitutes a new body of rules, practices and processes, created primarily by private actors, firms, NGOs, independent experts like technical standard-setters and epistemic communities, either exercising autonomous regulatory power or implementing delegated power, conferred by international law or by national legislation. Its recent growth reflects (A) a reallocation of regulatory power from the domestic to the global sphere and (B) a redistribution between public and private regulators. When in place, TPR produces strong distributive effects both among private actors and between them and nation states. It differs both from global public regulation and from conventional forms of private rule-making identifiable with the law merchant. The main differences concern both actors and effects. TPR is generally voluntary, mirroring domestic private regulation. Parties who wish to join the regulatory bodies participating to the regime are free to do so, however once they are in, they are legally bound and violation of the rules is subject to legal sanctions.* This freedom can be partially limited when the participation in a private regime and compliance with its standards is the condition to access to other regimes which provide market opportunities for the regulated entities. Often, subscription to a regime or compliance with a set of standards condition the access to the market or the ability to compete thereby reducing the freedom to choose. Voluntariness can be undermined by public intervention changing the regime from voluntary to compulsory. Less frequent than those observed at the domestic level are the examples of delegated private regulation to be found at the transnational level, where an explicit act of delegation by an IO or an IGO empowers a private body with regulatory power and makes the regime mandatory for the regulated entities. More diffused are the examples of ex post judicially recognised private regulation, when domestic courts recognise privately produced standards as part of customary public or private (international) law making it binding. The paper will address the factors driving towards the emergence of new TPR are identified in comparison with, on the one hand, lex mercatoria and, on the other hand, international public regimes. The focus will be then on the private sphere, looking at both the different conflicts of interests arising in the regulatory relationships and the need for governance responses; and then institutional complementarity between public and private regimes will be examined. In light of this approach, the claim that differences between public and private at the global level exist is substantiated. The publicprivate divide is analysed, comparing the domestic and the transnational level. Four different models of interaction are identified: hybridisation, collaborative law-making, coordination and competition.

http://www.scielo.org.co/pdf/rdp/n26/n26a06.pdf

New foundations of transnational private regulation

In section I of this article, the factors driving towards the emergence of new transnational private regulation (TPR) are identified in comparison with, on the one hand, merchant law and, on the other, international public regimes. In section II, the focus is on the private sphere, looking at both the different conflicts of interests arising in the regulatory relationships and the need for governance responses. In section III, institutional complementarity between public and private regimes is examined. In light of this approach, the claim that differences between public and private at the global level exist is substantiated. The public-private divide is analysed, comparing the domestic and the transnational level. Four different models of interaction are identified: hybridization, collaborative law-making, coordination, and competition. Section IV summarizes the results of the analysis, reconsidering the boundaries between public and private at transnational level.

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New Foundations of Transnational Private Regulation

Transnational private regulation (TPR) is a key aspect of contemporary governance. At first glance TPR regimes raise significant problems of legitimacy because of a degree of detachment from traditional government mechanisms. A variety of models have emerged engaging businesses, associations of firms, and NGOs, sometimes in hybrid form and often including governmental actors. Whilst the linkage to electoral politics is a central mechanism of legitimating governance activity, we note there are also other mechanisms including proceduralization and potentially also judicial accountability. But these public law forms do not exhaust the set of such mechanisms, and we consider also the contribution of private law forms and social and competitive structures which may support forms of legitimation. The central challenge identified concerns the possibility of reconceptualizing the global public sphere so as better to embrace TPR regimes in their myriad forms, so that they are recognized as having similar potential for legitimacy as national and international governmental bodies and regulation.

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The Conceptual and Constitutional Challenge of Transnational Private Regulation

Contents: Introduction PART I: UTILITIES 1. The Regulation of Services and the Public-Private Divide Anthony Ogus 2. Regulatory Strategies on Services Contracts in EC Law Hans-W. Micklitz 3. The Regulatory Function of Choice of Law Rules Applying to Contracts for Services in the European Union Sandrine Clavel PART II: ENVIRONMENTAL LAW 4. Regulatory Dilemmas in EC Environmental Law: The Ongoing Conflicts between Competitiveness and the Environment Javier de Cendra de Larragan 5. Regulatory Strategies in Environmental Liability Michael G. Faure 6. The Law Applicable to Violations of the Environment - Regulatory Strategies Oliveira Boskovic PART III: PRODUCT SAFETY 7. Product Safety, Private Standard-Setting and Information Networks Fabrizio Cafaggi 8. Interaction between Product Liability and Regulation at the European Level Gerald Spindler 9. Impact of the Mutual Recognition Principle on the Law Applicable to Products Mathias Audit PART IV: E-COMMERCE 10. E-commerce from a Private Law Perspective Vincenzo Zeno-Zencovich 11. E-commerce from a Regulatory Perspective Francesco Cardarelli 12. Re-allocating Horizontal and Vertical Regulatory Powers in the Electronic Marketplace: What to do with Private International Law Sophie Stalla-Bourdillon Index

The regulatory function of European private law

Contents: Introduction, Fabrizio Cafaggi and Hans Micklitz 1. Towards a European Private Law? The Common Frame of Reference in the Conflict Between EC Law and National Laws, Alessandro Somma 2. The Interpretation of Good Faith and According to Human Rights, Fundamental Freedoms and Constitutional Laws in the Common Frame of Reference, Giuseppe Vettori 3. The Role of Competition in the European Codification Process, Stefan Grundmann 4. The Public/Private Divide in European Law, Norbert Reich 5. The Draft-Common Frame of Reference: How to Improve it?, Jan M. Smits 6. The Empirical Missing Links in the Draft Common Frame of Reference, Fernando Gomez 7. A Spontaneous Order for Europe? Why Hayek's Libertarianism is not the Right Way Forward for European Private Law, Martin W. Hesselink 8. The Authority of the Academic 'Draft Common Frame of Reference', Nils Jansen Munster 9. Legal Innovation in European Contract Law: Within and beyond the Draft Common Frame of Reference, Florian Moslein 10. Fitting the Frame: An Optional Instrument, Party Choice and Mandatory/Default Rules, Horatia Muir Watt and Ruth Sefton-Green

Fabrizio Cafaggi

Papers

New foundations of transnational private regulation

New Foundations of Transnational Private Regulation

The Conceptual and Constitutional Challenge of Transnational Private Regulation

The regulatory function of European private law

European Private Law after the Common Frame of Reference