This chapter critically examines various kinds of ‘hybrid’ regulatory instruments, including hybrid and private regulation. It discusses multiple sources of regulatory influence, including various non-state intermediaries, and various strategies that avoid relying exclusively on the regulatory capacities of the state. The chapter closes with a brief overview of various kinds of ‘experimental regulation’, including regulatory sandboxes.

Private regulation by dominant firms and the digital infrastructure of democracy controlled by some firms constitute the areas where the separation of powers principle, envisaged in a broad sense, and antitrust may share much common ground. A single dominant digital firm may adopt private regulation affecting an entire industry and even society at large, be an important part of the digital infrastructure of democracy and, through many means including lobbying, exercise a significant influence on public decision-makers. Such a firm concentrates an immense amount of politico-economic powers. At the same time, it is subject to antitrust laws and relevant from a contemporary and prospective separation of powers’ viewpoint. Antitrust could, in the end, contribute to the separation of powers in the digital era and, ultimately, to trust. Antitrust for trust, or the ultimate apparent antitrust paradox.

The Global Food Safety Initiative (GFSI) has evolved into a leading private rule-maker in the field of global food safety. To showcase the evolution of GFSI, we discuss the transitions in its governance structure, its activities and its framing as perceived through the lens of legitimacy. Building and maintaining legitimacy is of vital importance to GFSI. As a transnational private rule-maker, it cannot do without cooperation with other parties. GFSI’s evolution, we argue, has unfolded via processes of pluralisation of its constituents, increased transparency, ratcheting up of food standards’ quality, and globalisation of its benchmarking activities. Despite its growth and the inclusion of other participants in its governance, GFSI has not changed its roots: it remains an industry-led organisation relying on the participation of food safety experts of large food corporations. We will show that many of the changes the organisation has gone through can be interpreted as a response to crises, defined as fundamental objections and doubts voiced by external actors against GFSI or the practice of food certification more generally.

This chapter problematises the notion of resilience as continuation with adaptability, suggesting that it requires specifying in advance the essential attributes of a global governance body, which would have to remain largely intact for adaptation to changing circumstance to count as resilience. The chapter therefore identifies those essential attributes for the International Electro-technical Commission (IEC). The chapter then theorises resilience of a private rule-making body as a function of its capacity and capability for autonomous agency in pursuit of its organizational self-interest, the embeddedness of the rule-making body among its stakeholders, and its leadership’s ambition to ensure the organisation’s survival. It shows that these characteristics helped the IEC to achieve resilience in the face of numerous and diverse challenges from technological changes, the emergence of competing SDOs and geopolitical changes accompanied by power transitions in the world economy, including the rise of China. The unresolved challenges of meaningful consumer participation and better gender balance in international standardization suggests, however, that past resilience is only partially predictive of future resilience.

From European integration to domestic politics to the development of the global economy, technocracy and private ordering have shaped economic behaviour. Such transformative private-driven forces of economic activity flourished through the promulgation of voluntary standards. In view of the ever-increasing powers that are transferred to private actors and their relative power as a de facto pillar of global regulatory making, it is surprising that their dominance remains largely unaffected by regulatory shocks that they partly cause. Rather, in practice, crises (broadly defined as disruptive disturbances) appear to empower such forces or generate new ones, whereas existing checks and balances fail their initial purpose. In emphasising the role of the innate traits, fabric of interactions and dynamics in times of crises within private rule-making bodies, the present article analyses the foundations for a new, evidence-based theory to explain the resilience of private collective action and establishes a research agenda.

This chapter focuses on legitimacy of ICT standardization as a form of regulation. After reviewing the relevant scholarship on legitimacy and effectiveness of private transnational regulation, it takes up Schmidt’s framework on input, throughput, and output legitimacy as the most relevant for ICT standards. It then introduces a nonexhaustive list of procedural meta-principles through which the private regulatory regime created by ICT standardization can be legitimized. These processes are addressed in this chapter as “good governance principles” and include participation, transparency, reason-giving, and review; they also serve as procedural mechanisms to hold private regulators accountable and to ensure legitimacy of their rule-making.

This chapter addresses some foundational questions relating to corporate human rights accountability and clarifies the context in which different accountability regimes are embedded, paying particular attention to the rise of polycentric transnational governance in what has been called a post-Westphalian world order. The chapter distinguishes between domestic and international, private and public, and hard and soft law approaches to holding companies accountable. Particular attention is given to soft accountability mechanisms. The chapter looks at certification and labeling systems for conscious consumers, the rise of socially responsible investment or so-called ESG investment, and the effectiveness of NGO “naming and shaming” campaigns.

With their ability of selecting content available, algorithms are used to automatically identify or flag potentially illegal content, and in particular hate speech. After the adoption of the Code of conduct on countering illegal hate speech online by the European Commission on 31 May 2016, the IT companies heavily relied on algorithms that can skim the hosted content. However, such intervention could not be completed without the collaboration of moderators in charge of verifying the doubtful content. The interplay between technological and human control, however, adds several questions. Under the technological dimension, the most important issues concern the discretion of private companies as regards the definition of the illegal content; the level of transparency as regards the translation of the legal concepts into code; the existence of procedural guarantees applicable to the system adopted to challenge automatic decisions. Under the human dimension, the most important issues concern the selection procedure to identify the so-called ‘trusted flaggers’ able to provide the final decision regarding the illegal nature of the online content, the existence of accreditation or verification process that would evaluate the quality of the notices provided by such trusted flaggers, the allocation of liability in case of mistake between the online intermediary and the trusted flagger.

This chapter addresses core theoretical issues surrounding global/transnational legal pluralism, taking up the work of leading theorists. First, is demonstrates that global legal pluralism is very different from earlier versions of legal pluralism (postcolonial and sociological). Next, is exposes the flaw of overinclusive conceptions of legal pluralism, which appears in the global legal pluralism of Paul Berman, and it explains why theoretical concepts of law cannot solve this flaw. It then addresses the profusion of private and hybrid regulatory forms on the domestic and transnational levels, and marks the line between theory and practice. Thereafter, it exposes problems with the relational concept of law formulated for global legal pluralism by Ralf Michaels, showing why it is unsuitable for many situations of legal pluralism. The approach to transnational legal pluralism the chapter articulates avoids these conceptual problems. It centres on conventionally identified forms of law that vary and change over time, which can be grouped in terms of three categories: community law, regime law and cross-polity law. Finally, it sets forth a handful of specific lessons for a reconstructed transnational legal pluralism.

This final chapter summarizes the insights gained and discusses how far they travel beyond the coffee sector. It first concludes that market-driven schemes only show partial effectiveness – and even then only when allowing the goal posts of a ‘sustainable coffee sector’ to be moved a considerable distance from its original definition. In a second step, it discusses the generalizability of the book’s results. It reiterates that the coffee sector – with a relatively easy-to-trace value chain, a consumer-facing product, and a long history of awareness raising in both industry and civil society – exhibits many features that should benefit the proper operation of market-driven regulatory governance. The fact that it did not appear to succeed in this best-case scenario raises serious questions about the ability of private governance to show better results in other supply chains. It closes by putting the book into conversation with recent work and suggesting implications for academics, practitioners, governments, and consumers.

A panoptic overview of current governing practices evidences an expansive role of private regulation in a significant range of crucial public policy issues. Whether at the domestic, regional or global levels, such a phenomenon has increasingly become perceived as a conundrum, if not an overall crisis, for modern paradigms of legal and political authority. Building upon the array of case studies that the phenomenon has already elicited, this paper advances four interrelated arguments. First, descriptively, it contends that the administrative state has experienced a large-scale transformation due to the proliferation of a varied, multifaceted and fast evolving range of private regulatory practices. Second, methodologically, after mapping the way these private regulatory practices have been conceptualised in post-national legal theories, it conveys the importance of moving beyond the state of the art by adopting a phenomenological approach to contemporary legal orderings. Third, drawing upon comparative analysis of competition law, it distinguishes two broad models that have emerged to address the private regulation phenomenon: (i) the private ordering model, predominant in the US; and (ii) the private police powers model, predominant in the EU, which, I claim, could be productively understood from a doctrinal perspective as an emergent private administrative law. Finally, at a normative level, I conclude positioning such a private administrative law model as a distinctive conceptual framework to reflect upon the place, role and the very significance of law within a landscape of contemporary political economies characterised by an expanding topography of private regulators.

This chapter reflects on the diversity of usages of the notion of transnational law in legal scholarship. To do so, it focuses on the lex sportiva as a fruitful empirical field to study in concreto the use of the concept. Indeed, the regulation of international sports is nowadays often referred to as lex sportiva and deemed an example of transnational law. The first part of this chapter retraces how lex sportiva has been used as empirical evidence for a ‘pure’ theory of transnational law, a conception of transnational law as denationalized legal order of a transnational community. The second part will aim to show how lex sportiva can also be used to support an ‘impure’ theory of transnational law, which might better capture the messy process of transnational interactions between multiple levels, norms and institutions that characterizes much of contemporary legal practice.

Law and Economics views the operation of private and public law as complementary, best seen as two aspects of a joint mechanism to guide actors in their environmental behaviours. This is a mechanism design technique from game theory, often referred to in popular press as ‘smart mixes'. Liability rules have their limits. Perhaps most noteworthy is that you have no case until you are already injured, thus civil liability rules are not optimal. Public regulations can monitor behaviour prior to an accident. Public regulation has a more diverse set of governance tools, including criminal law and incarceration. Public regulation is not free from its own problems. Agency capture and deflection of regulatory drafting are major concerns. Private regulatory mechanisms are programmess wherein public authorities design mechanisms that engage several private parties, all related to the environmentally risky activity, to create new interactions that both reveal more data and alter private behaviour to align with public regulatory goals. The story of environmental Law and Economics is not a tale in defence of private law rights against public law regulation, but rather a harmonious tale of two systems that can be integrated to function as a more effective and efficient whole.

Governance includes nonstate actors and nonlegal instruments. Nonstate governance – that which is developed, implemented, and/or enforced by nonstate actors – can fill roles that state law cannot or does so poorly. This chapter considers the extent to which nonstate actors do, could, and should contribute to solar geoengineering governance. It introduces key concepts of nonstate governance. The extant governance that is specific to solar geoengineering is largely nonstate. This is particularly evident in the development, influence, and apparent compliance with multiple sets of principles, such as the Oxford principles. Notably, for the most part, these sets substantively agree. The chapter closes with an analysis of nonstate governance’s potential. It concludes that nonstate governance should contribute because solar geoengineering’s characteristics – such as technically complexity, dynamism, reliance upon experts’ knowledge, transboundary impacts, and researchers' shared yet undifferentiated reputational sensitivity – are favorable to nonstate governance, while states are taking no significant steps toward governance.