The Many Features of Transnational Private Rule-Making: Unexlored Relationships between Custom, Jura Mercatorum and Global Private Regulation

Abstract

Every-day life of businesses and consumers is pervaded by the references to global private standards: from the cars we drive to the computers we use, from the food we eat to the movies we watch. Private rule-making at the transnational level is increasingly gaining scope and traction, quickly expanding in both old and new territories. This is partly the result of weaknesses in conventional international public law and partly the result of the emergence of new modes of governance. Stimulated by the actions of states and private actors, these new modes of governance include public, private, and hybrid instruments.Private actors engage in transnational rulemaking in different forms depending on their objectives, the geographical and functional scope, and the effects of the regimes on the entities being regulated. The fields of application go well beyond those traditionally occupied by ‘jura mercatorum,’ including agriculture, human rights, social and labor regulation, environment, and the more conventional areas, such as finance, banking, professions, and trade, including e-commerce.These private regimes are sector specific but not self-contained. They presuppose the existence of international and domestic institutions that can support their functioning. They interact by both giving rise to conflicts or by mutually reinforcing one another. The premise of the analysis that follows is that of institutional complementarity rather than that of separate and autonomous private orderings. The conceptual puzzle concerns the definition of different types of complementarity between private and public actors. Is the expansion of transnational private rule making simply an evolution of more conventional forms of custom and jus mercatorum or does it depart from these forms of private rule-making? In the latter case is there a common denominator of current forms of transnational private rule-making? How does private rule making correlate with international and domestic public legal orders? Do they constitute separate private orderings? Do they complement, supplement or replace public legal orders? What is the combination between legal and non-legal norms? Not only these questions have theoretical relevance but they also shape important regulatory policy choices at the international level concerning legitimacy, compliance and enforcement of global private standards? Transnational private regulatory regimes – it is contended – do not represent an alternative to jus mercatorum since their functional focus is regulation driven by market failures rather than a set of prescriptions related to individual transactions between market participants. They integrate current public market regulation or contribute to the creation of new markets through market design. The multifarious forms of transnational private rule-making pose daunting questions concerning their origins, functions and scope. This article addresses the different forms of transnational private rule-making; it tries to examine their differences and the consequences for their normative foundations and policy objectives. After a brief historical overview, section I analyses transnational private regulation (TPR), and section II examines usages, customs and jura mercatorum. Section III presents a comparative assessment between TPR and custom. Section IV defines an agenda for future research and it is followed by the conclusion.