Chapter 35: transnational non-state regulation and domestic administrative law victor v. ramraj
October 31, 2022
9
2021/2022
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giu0755
administrative law
unito
global law
torino
turin
global law and transnational legal studies
victor v ramraj
transnational non state regulation
domestic administrative law
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Victor V. Ramraj: Transnational Non-State Regulation and
Domestic Administrative Law
Two contemporary developments are challenging the old meaning (orthodox accounts) of administrative
law: the privatization of regulation and its increasingly transnational nature.
Privatization does not really represent administrative law theory because, at least as it has developed in
the Western legal tradition, public law tends to be viewed as providing protection against arbitrary state
action. As a practical expression of the rule of law, it helps to keeps government in check. Private regulation
challenges this orthodox account, but private regulation can still be incorporated into orthodox account by
framing it as delegated state power and subjecting it to judicial oversight. The state therefore remains in
overall control—its legal hegemony remains intact.
Transnational regulation also challenges orthodox understandings of administrative law. Challenges posed
by EU regulation and, moral generally, the rise of intergovernmental networks and transnational regulatory
bodies that do not fit the pattern of formal international institutions established through the formal
consent of states.
Although the informality of some of these bodies—such as the Financial Action Task Force (FATF) or the
Basel Committee on Banking Supervision—often disguises their potency as standard-setters and the extent
of compliance their norms command, they too can be subsumed within orthodox public law theory as being
ultimately accountable to state institutions.
So, neither privatization nor transnational regulation poses a fundamental challenge to modern
administrative law theory. Until they come together.
An important strand in on transnational law is focused on what one group of scholars calls
TRANSNATIONAL PRIVATE REGULATION or TPR.
This body of scholarship highlights: the unique challenges posed by a diverse range of private (or what I
prefer to call “non-state”) actors as standard-setting, adjudicative, and enforcement bodies, though not
always all of these at once. Examples of these kinds of regulators would be voluntary corporate codes,
industry self-regulatory associations, technical standard-setting organizations, and multi-stakeholder
certification bodies.
The diversity here is important.
- Although these bodies are all governed by non-state actors, “they pursue different objectives and
incorporate multiple dimensions and degrees of public interest, depending on the composition of their
, respective governance bodies and the effects they have on the general public”. At the same time, these
regulators pose a common challenge for administrative law theory and practice;
- Unlike their domestic counterparts or intergovernmental networks, they have no claim to be even
informal delegates of state authority, nor can they claim even an indirect line of accountability to any
state. And yet, for most practical purposes they function as regulators relative to, and many of them
command the allegiance of, a particular transnational community.
1. Transnational Non-State Regulation
Transnational non-state regulation comes in many shapes, functions in a variety of ways, and generates a
wide range of consequences for those in the domestic sphere and for the domestic legal order itself.
- First, however, it is helpful to distinguish transnational non-state regulators from the formal
international organizations, intergovernmental networks, and hybrid (public-private) entities. The reason
for this exclusion is that, at least in theory, these bodies all involve some state control or oversight,
however imperfect. By excluding state-sanctioned bodies from its purview, this chapter is able to focus
attention on the hardest case for administrative law: regulatory bodies operating across state borders
that are not governed or controlled by states.
Three kinds of state-sanctioned bodies are therefore excluded from the scope of the chapter.
First, formal international organizations that are created through the formal consent of states—
from the United Nations and its progeny to the World Trade Organization and the Bretton Woods
institutions are all set aside.
Second, inter-governmental networks such as FATF and the Basel Committee, as well as many of
the EU bodies discussed elsewhere in this collection, are excluded from further analysis.
A third category, hybrid public-private bodies, is more complex. These bodies would include any
transnational regulator in which states or state agencies have a non-exclusive governing role. (In its
original form, ICANN might best be described as a hybrid regulatory body, with a governance structure
dominated by non- state actors, but ultimately subject to state oversight. Another example is the Extractive
Industries Transparency Initiative (EITI), a standard-setting body aimed at promoting “open and accountable
management of natural resources,” which was initially proposed by the United Kingdom government. It now
involves several countries, as well as companies, investors, and civil society organizations.)
In the European context, this tripartite governance structure is sometimes described as coregulation, and
refers to a “method that includes the participation of both private and public actors in the regulation of
specific interests and objectives”
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