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1. Public and Private Regulation: Mapping the Labyrinth

Author:
Andrea Renda and Fabrizio Cafaggi
Publication Date:
10-2012
Content Type:
Working Paper
Institution:
Centre for European Policy Studies
Abstract:
Private governance is currently being evoked as a viable solution to many public policy goals. However, in some circumstances it has shown to produce more harm than good, and even disastrous consequences as in the case of the financial crisis that is raging in most advanced economies. Although the current track record of private regulatory schemes is mixed, policy guidance documents around the world still require that policy-makers give priority to self-and co-regulation, with little or no additional guidance being given to policymakers to devise when, and under what circumstances, these solutions can prove viable from a public policy perspective. With an array of examples from several policy fields, this paper approaches regulation as a public-private collaborative form and attempts to identify possible policy tools to be applied by public policy-makers to efficiently and effectively approach private governance as a solution, rather than a problem. We propose a six-step theoretical framework and argue that IA techniques should: i) define an integrated framework including both the possibility that private regulation can be used as an alternative or as a complement to public legislation; ii) involve private parties in public IAs in order to define the best strategy or strategies that would ensure achievement of the regulatory objectives; and iii) contemplate the deployment of indicators related to governance and activities of the regulators and their ability to coordinate and solve disputes with other regulators.
Topic:
Economics, International Trade and Finance, Markets, and Regional Cooperation
Political Geography:
Europe

2. Global Public Goods amidst a Plurality of Legal Orders: A Symposium

Author:
Fabrizio Cafaggi and David D. Caron
Publication Date:
08-2012
Content Type:
Journal Article
Abstract:
A public good (an example is a lighthouse) can be produced by private parties. However, they rarely are. Rather, such goods are generally thought of in economics as a type of commodity that government often provides and maintains because government can overcome the otherwise strong incentive to free ride on the efforts of others. This symposium issue is concerned with the global analogies to municipal public goods. As in the domestic context, global public goods are viewed as essential goods. But globally there is not a government. Instead, we observe a plurality of legal orders arrayed both horizontally and vertically, both publicly and privately. It is this mix of significance and complexity that is the subject of this symposium.

3. Transnational Private Regulation and the Production of Global Public Goods and Private 'Bads'

Author:
Fabrizio Cafaggi
Publication Date:
08-2012
Content Type:
Journal Article
Abstract:
The article focuses on the role of private regulators in the production, access regulation, and protection of global public goods (GPGs). It addresses transnational private regulation (TPR) as a public good in itself and as an instrument to produce and protect GPGs. It makes three major claims: (1) private actors have incentives to produce and protect GPGs, thereby challenging the conventional partition between markets, producing private goods, and states producing public goods; (2) the production and protection of GPGs has to combine procedural and substantive features, making private governance a determinant of the club or public nature of the global good; and (3) ownership, both individual and collective, and contracting can be used to produce and protect GPGs. The article analyses in particular the proliferation of regulatory agreements between private actors or between private and public to regulate production, protection, and access, and shows that their limited legal enforceability is often functional to alternative compliance mechanisms devised through innovative private governance. It concludes by suggesting that the increasing role of private actors in the production of GPGs requires governance reforms of public–private cooperation at transnational level.

4. The Making of European Private Law: Regulation and Governance design

Author:
Fabrizio Cafaggi and Horatia Muir Watt
Publication Date:
03-2007
Content Type:
Working Paper
Institution:
European Research Papers Archive
Abstract:
The current debate on the desirability and modes of formation of European Private Law (“EPL”) is engaging a wide number of scholars and institutions. Current work concerns the search for a common core of EPL, the rationalisation of the acquis communautaire, the design of a European Civil Code. These ongoing projects raise at least two related questions concerning the challenges to Europeanisation of private law: First, what is the often implicit definition of priv ate law standing behind the debate about the creation of EPL? Second, does the process of creation of EPL need some type of governance structure?
Topic:
Development, Government, and International Law
Political Geography:
Europe

5. Self-regulation in European Contract Law

Author:
Fabrizio Cafaggi
Publication Date:
12-2006
Content Type:
Working Paper
Institution:
European Research Papers Archive
Abstract:
This paper addresses self-regulation as a complementary means to harmonize and regulate European Contract Law. In the context of the paper SR is conceived as a complementary device to legislation and as a monitoring device to verify ECL implementation.
Topic:
Economics, Markets, and Politics
Political Geography:
Europe

6. A Coordinated Approach to Regulation and Civil Liability in European Law: Rethinking Institutional Complementarities

Author:
Fabrizio Cafaggi
Publication Date:
09-2005
Content Type:
Working Paper
Institution:
European Research Papers Archive
Abstract:
Civil liability is a much older regulatory device than administrative regulation. The emergence of a regulatory state is a relatively new phenomenon. Within regulatory States different modes of regulation and administrative tools have developed, including the extensive use of the private law.
Topic:
Civil Society, Development, and Human Rights
Political Geography:
Europe