The Enforcement of Transnational Private Regulation – The Case of Professional Services

Abstract

Increased globalization of economic activities leads to a shift of regulatory power. Public authorities concede power, explicitly or tacitly, to private bodies, whereas a multilayered environment of global governance inevitably increases the role of institutional structures beyond national borders. This paper examines such developments in the area of professional services. It starts by analyzing the self-regulation phenomenon in professional services and points to examples where professional associations accentuate their unique nature to justify the importance of non-intervention in their internal affairs. Powerful professional associations have been thereby created, which, depending on the services sub-sector (eg. Legal profession, engineers and so on), are the final masters of access to and practice of a given profession. After a critical review of the most important professional associations at the global level, the paper focuses on instances of private enforcement and goes on to examine the role of courts in reviewing this type of enforcement. In this regard, constitutionality of private enforcement is also examined. Finally, the paper refers to the role of competition law in harnessing distortive business practices that professional associations may adopt.