Chapter 8 - Actors Developing Private Law in the Dutch Legal Order

Summary

Introduction

In the case studies, it has become clear that state actors still play a prominent role in the development of the law on STCs. The previous chapter concluded that notwithstanding this conclusion, a closer look at the development of private law in Germany reveals a more prominent role for non-state actors. In German law, convincing arguments to maintain the role of state actors have become visible.

This chapter asks which actors play a role in the development of private law in the Dutch legal order. In the Dutch legal order, a framework cannot yet be detected. If developed, what would a framework deduced from the Dutch legal order look like and is a central role of state actors similarly justified in the Dutch legal order?

This chapter consider a Dutch framework in paragraph 8.2. Paragraph 8.3 will discuss the development of private law by state actors. Subsequently, paragraph 8.4 will consider the role of state actors and non-state actors in instances of co-regulation, and paragraph 8.5 will turn to the role of non-state actors in the development of selfregulation. Paragraph 8.6 will end with a conclusion.

Central questions on the role of state actors and non-state actors

The legislator and the courts clearly have an important role in the development of Dutch private law, but they have also developed co-regulation, in cooperation with non-state actors, and encouraged the development of self-regulation. Nevertheless, the role of nonstate actors is not clearly delineated. Thus, a framework to assess which role state actors and non-state actors should play in the development of private law is desirable. Giesen finds that guidelines would enhance the quality of alternative regulation. If alternative regulation is developed in sufficiently open and inclusive procedures, this may, in turn, increase the responsiveness of alternative regulation, and theoretically diminish the chance that contradictory sets of overlapping alternative regulation develop. Furthermore, a framework enables a more consistent, predictable approach to the development of alternative regulation. What would such a framework look like?

Paragraph 8.2.1 will consider the German constitutional framework, as the German framework has inspired the question whether a framework can, over time also be developed to assess the role of actors developing private law in the Dutch legal order. Because of the differences between the German and the Dutch legal order, the German framework cannot simply be transposed to the Dutch legal order.