'The Rise of Transnational Private Meta-Regulators' (Osgoode Legal Studies Research Paper No. 71, 2014) by Paul Verbruggen and Tetty Havinga comments
In recent years scholars from various disciplines have turned their attention to transnational regimes of regulation that are chiefly developed outside state-driven frameworks. The rise of such “transnational private regulation” has also led to the emergence of private meta-regulation. The term ‘meta regulation’ commonly refers to processes through which a regulatory body oversees another and sets standards for its activities or performance of regulation. In the public domain, meta-regulation has been associated with the devolution of regulatory activities by a statutory body to private actors with the view to enhance voluntary rule compliance, awareness of responsibilities among the regulated and reduce public enforcement costs. However, in the transnational private domain the rationale for meta-regulation appears to be a different one. We contend that meta-regulation in this domain is less concerned with the goal of enhancing rule compliance and efficiency in enforcement, but instead is more prominently concerned with the bolstering of the integrity, legitimacy and accountability of private regulatory regimes and the coordination between such regimes.
To furnish this argument the paper develops a comparative analysis of two sectoral private meta-regulators involved in transnational private regulation: the Global Food Safety Initiative in the food industry and the European Advertising Standards Alliance in the advertising industry. These two organisations have developed guidelines, benchmarks and performance indicators for other private bodies involved in transnational regulatory activities. The comparative analysis is focused around four principled and interlinked questions:
(i) What has driven the emergence of meta-regulation in the private regulatory domain?;
(ii) What are the forms and functions of private meta-regulation?;
(iii) What is its relationship with public regulation and regulators?; and
(iv) How and to what extent does private meta-regulation contribute to the legitimization of transnational private regulation?
