Background and Overview
Perhaps the most apparent facet of globalisation is the massive increase in the flow of goods, services, people, information and capital across borders, combined with the spread of multinational corporations. Private actors, particularly multi-national conglomerates, have a clear interest in affecting the regulation of various aspects of these phenomena. In the contemporary world, the sheer extent to which private actors are capable of deploying their activities on a global scale has reached unprecedented heights and has resulted in a multitude of different forms of international cooperation.
A new phenomenon is that of a shift of competence between the public and private spheres. Increasingly, private forms of regulation are emerging to fill the gaps left by national public law or international treaty regimes and/or go beyond the basic standards set by public authorities. The involvement of private actors increasingly goes beyond affecting the development of business law and relates to more societal matters, such as environmental issues, labour conditions, and good governance (to mention just a few examples). While private actors are increasingly operating at a cross-border level, the state remains bound to its territory. This significantly affects the capacity of national legislators to regulate corporate conduct, in particular with regard to complex transactions taking place within multiple national legal systems.
A myriad of questions arise. For example, who are the private actors involved? What are the main fields in which involvement of private actors in regulation, and also other activities traditionally reserved to states, are taking place? To what extent has this already resulted in internationalisation of law, and what further internationalisation is to be expected? But the most cardinal question would seem to relate to the relationship between self-regulatory systems and formal regulation by states, and to an assessment of the desirability of self-regulation by private actors.
Research Development
In 2007 HiiL decided to explore possibilities for research in the area of private actors and internationalisation, with a specific focus on the phenomenon of private self-regulation, as a typical example of a bottom-up pressure on the national legal system and its actors; i.e. the emergence of novel regulatory regimes alongside its formal modes of regulation. In this context HiiL organised two meetings aimed at finding a specific focus within this broad theme in order to formulate a specific research question which would be of relevance for HiiL programme. The First Brainstorm Session on Private Actors and Self-Regulation was held in November 2007 with the purpose of determining the most promising avenues of research in this area. The discussion was based on a Concept Paper drafted by HiiL that highlighted the most significant issues deemed to be of interest to both practitioners and academics. As a result of the Brainstorm Session, the revised Concept Paper was drafted. It focused on the question whether private regulation is more successful than public regulation in regulating the conduct of private actors in a transnational environment and, if so, what impact it has on the effective and efficient functioning of national legal orders. This Concept Paper, together with the Inventory Report that provides an overview of recent academic publications and research programmes pertaining to the field of private regulation and co-regulation served as the basis for discussion during the Second HiiL Meeting on this theme on 27 May 2008. The proceedings of this meetings were published in the Conference Report.
Pursuant to these efforts, the Call for Proposals was launched in September 2008. The Tender Document centred on the following research question: What form of regulation with a transnational dimension, created by either private actors or public actors (including intergovernmental organisations) or through their cooperation, is most successful in regulating the conduct of corporations in a transnational environment? What conditions are decisive for determining the appropriateness of the relevant regulatory regime?
As a result of the Call for Proposals, the HiiL Grant was awarded to the research project 'Private transnational regulation: Constitutional foundations and governance design’ submitted by Prof. Fabrizio Cafaggi (European University Institute – Robert Schuman Centre for Advanced Studies), Prof. Linda Senden (Tilburg University) and Prof. Colin Scott (University College Dublin).
HiiL also decided to devote its 3rd Annual Conference of the HiiL Law of the Future series to the theme of private (non-state) actors and globalization. The Brainstorm Session with a number of leading experts was held in March 2009 with the purpose of elaborating the specific questions and scope of the Conference. Accordingly, the third Annual Law of the Future Conference took place on 8 and 9 October 2009 The Peace Palace, The Hague, with a title 'Globalisation, the Nation-State and Private Actors: Rethinking Public-Private Cooperation in Shaping Law and Governance'. The Conference focused on: re-evaluation of principles of public-private cooperation in shaping law and global governance in light of the ever-increasing complexity of political as well as socio-economic relations. For more information on the Annual Conference, see www.lawofthefuture.org.
In the light of a recent financial turmoil, as a result of which many are contesting the current design of financial system, HiiL decided to embark on the task of setting up of a new "Joint Research Project on Assessing Regulation and Supervision of Financial Markets and Institutions in a Multi-Level Environment". The project is being developed in collaboration with the Duisenberg School of Finance of Amsterdam University and the Hague Centre for Strategic Studies.
Contact Information
Katarzyna Kryczka
Research and Programme Officer
k.kryczka@hiil.org
+31 70 3494 406
