Neither ‘Public’ Nor ‘Private’, ‘National’ Nor ‘International’: Transnational Corporate Governance from a Legal Pluralist Perspective

Abstract

The paper is part of a larger research project on transnational private regulation, carried out under the auspices of Hague Institute for the Internationalisation of Law [HiiL] at University College Dublin, the European University Institute and Tilburg University. It addresses the regulatory challenges arising from a fast-growing body of norms produced by non-state actors in the transnational arena. Focusing on the example of corporate governance codes through a legal pluralist lens, the paper investigates the arguments that qualify corporate governance codes as either ‘soft’ law or as non-law and rejects this categorization with reference to the wide-ranging evidence of new forms of regulatory governance both within and outside of the nation-state. The creation of corporate governance codes is seen as example of indirect regulation in politically sensible regulatory areas, where state law makers engage in forms of collaborative norm creation for example in the form of private code drafting and subsequent public endorsement. In the case of the German corporate governance code, however, the drafting of the Code occurred in a non-exclusively private sphere, which raises important questions as to the adequacy of the public-private distinction with regard to the assessment of the existence or the lack of legitimacy of contemporary norm-making processes. This type of norm creation illustrates the challenges of what Calliess and Zumbansen refer to as ‘Rough Consensus and Running Code’, which constitutes a procedural and substantive theory of transnational private law creation.