Public Law and Private Regulators in the Global Legal Space

In domestic legal systems, public authorities have incorporated rules first established by private bodies for a long time. In the global arena, public regulatory regimes increasingly connect with private ones. International intergovernmental organizations, transnational regulatory networks and the EU use international standards and rules coming from private entities through a variety of mechanisms. Examples include the FSB’s incorporation of international auditing standards, the Basel Committee’s reference to credit rating agencies, the WTO agreements’ connection with international standards established by private bodies and the EU endorsement of international accounting standards. Notwithstanding the different context in which they are operating, traditional techniques — such as incorporation and reference — are surprisingly resilient. Yet, tools at first sight originating from the plain transplantation of instruments well know within national legal orders end up being used for new purposes. Moreover, in some cases systems drawing upon old tools enact new and more complex models.
Concerns about hybrid public-private regulation – under which conditions can a public authority delegate rulemaking functions to private ones? How can the accountability of private entities be pursued? – are old dilemmas. The transplantation of techniques from the national to the global level often aims at finding new solutions to old problems, which appear even more complex in the global arena. The analysis shows that in some cases tools addressing legitimacy concerns, such as procedural ones, seem to be more developed in the global context than in national ones – even though not necessarily more efficacy in enhancing accountability comes with the development in the number of these tools.