Transnational Private Regulation and the Production of Global Public Goods and Private 'Bads'
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1464-3596; 0938-5428
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European Journal of International Law (EJIL), 2012, 23, 3, 695-718
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CAFAGGI, Fabrizio, Transnational Private Regulation and the Production of Global Public Goods and Private ‘Bads’, European Journal of International Law (EJIL), 2012, 23, 3, 695-718 - https://hdl.handle.net/1814/25697
Abstract
The article focuses on the role of private regulators in the production, access regulation, and protection of global public goods (GPGs). It addresses transnational private regulation (TPR) as a public good in itself and as an instrument to produce and protect GPGs. It makes three major claims: (1) private actors have incentives to produce and protect GPGs, thereby challenging the conventional partition between markets, producing private goods, and states producing public goods; (2) the production and protection of GPGs has to combine procedural and substantive features, making private governance a determinant of the club or public nature of the global good; and (3) ownership, both individual and collective, and contracting can be used to produce and protect GPGs. The article analyses in particular the proliferation of regulatory agreements between private actors or between private and public to regulate production, protection, and access, and shows that their limited legal enforceability is often functional to alternative compliance mechanisms devised through innovative private governance. It concludes by suggesting that the increasing role of private actors in the production of GPGs requires governance reforms of public–private cooperation at transnational level.