The continuing proliferation of transnational private regulatory governance challenges conceptions of legal authority, legitimacy and public regulation of economic activity. The pace at which these developments occur is set by a coalescence of multiple regime changes, predominantly in commercial law areas, but also in the field of internet governance, corporate law and labor law, where the rise to prominence of private actors has become a defining feature of the emerging transnational regulatory landscape. One of the most belabored fields, the transnational law merchant or, lex mercatoria, has gained the status of a poster child, as it represents a laboratory for the exploration of “private” contractual governance in a context, in which the assertion of public or private authority has itself become contentious. The ambiguity surrounding many forms of today's contractual governance in the transnational arena echoes that of the far-reaching transformation of public regulatory governance, which has been characteristic of Western welfare states over the last few decades. What is particularly remarkable, however, is the way in which the depictions of “private instruments” and “public interests” in the post-welfare state regulatory environment have given rise to a rise in importance of social norms, self-regulation and a general anti-state affect in the assessment of judicial enforcement or administration of contractual arrangements. A central challenge resulting from case studies such as the transnational law merchant is from which perspective we ought to adequately study and assess the justifications, which are being offered for a contractual governance model, which prioritizes and seeks to insulate “private” arrangements from their embeddedness in regulated market contexts, on both the national and transnational level.

First, I would like to acknowledge where this paper was presented and where the work of revising it into an article took place. I would like to acknowledge the territory, which is not just Toronto, Ontario, Canada, but also Tkaronto, a Mohawk or Kaniekehaka word (as are Ontario and Canada). This word is from one of the languages of the Six Nations that comprise the Haudenosaunee Confederacy (People of the Longhouse), perhaps better known in this symposium by the French colonial name of Iroquois. Toronto and its surrounding territory are traditionally of the Huron-Wendat people, the Seneca Nation of the Haudenosaunee, and with title most recently lying with the Mississaugas of New Credit (Anishinabe). I would like to acknowledge the territory and thank these hosts, as well as the conference organizers for their generous invitation to participate in these discussions on transnational private regulation (TPR).

Since the 1980s, influential participants in the niche over-the-counter (OTC) derivatives markets have sought to encourage contractual standardization in the industry to mitigate the potential for unforeseen legal interruptions and ensure the enforceability of OTC derivatives contracts. The International Swaps and Derivatives Association (ISDA), a trade association and standard-setter, has spearheaded this effort; resulting in the creation and sustenance of a highly successful transnational private regulatory regime (TPRER). Most notably, ISDA has generated a standardized boilerplate contract for OTC derivatives, known as the ‘ISDA Master Agreement’. However, the TPRER within which the ISDA Master Agreement operates displays some intriguing features and paradoxes. Chief amongst these paradoxes is that, while this TPRER appears at first glance to be highly legalistic and formal, indications are that rates of formal litigation between members of the regulatory regime have traditionally been low relative to the size of the market (the total notional amount of OTC derivatives contracts outstanding at the end of 2011 was estimated at US$648 trillion).

The emergence of private actors in setting standards and sometimes contributing to monitoring and enforcement functions is a key feature of contemporary transnational regulation. Transnational private regulation fills significant gaps in governmental and intergovernmental capacity, offering the potential of public goods which both provide some coordination for global markets and address some of the externalities associated with globalization such as environmental degradation and exploitation of workers.

In 1976, MGM released Network, a satirical film about a news anchor (played by Peter Finch) so frustrated by the state of the television industry and by society in general that he couldn't stop himself from lashing out in the midst of an evening broadcast. He was “mad as hell”, and it was with this impassioned rage and his everyman sensibilities that he was determined to move the television watching nation. Nevertheless, for all his conviction, Finch's character was destined to fail. In the penultimate scene of the film, Finch is confronted by the television network's chairman of the board (played by Ned Beatty).

Home state mechanisms designed to address harms arising from overseas resource extraction have recently been considered in Canada. This paper will examine whether such mechanisms could be viewed as an example of transnational private regulatory governance, and the implications of doing so for our understanding of both public international law and transnational private regulatory governance. After first briefly unpacking the idea of transnational private regulatory governance, the paper will compare common understandings of the scope of home state jurisdiction to regulate transnational corporations under international human rights and international environmental law. Recent developments in Canadian law and policy culminating in the creation of a Corporate Social Responsibility (CSR) Counsellor for the international operations of the Canadian extractive industry will then be described. This Canadian experience will serve an example of home state-based transnational private regulatory governance.

Despite the increasing urgency of global environmental issues, international environmental law continues to struggle for relevancy and effectiveness. Even as legal efforts have intensified, the global environment has continued to deteriorate. In particular, state-centric, multilateral “hard law” instruments have proven an increasingly ineffectual means of regulating the global environment.

Almost weekly, it seems, my inbox fills with dozens of academic articles on the topic of “socially responsible investing” or “SRI”. Non-profit organizations across Europe and North America promote SRI as the new investment industry standard. Business schools now offer certificate programs in “sustainable investment”. In 2006, the UN launched the Principles for Responsible Investment (PRI) to provide a framework for investors interested in practicing responsible investing. The PRI now boast over 1,000 signatories, including asset owners and investment managers.

The aim of this contribution is to illustrate the evolution of the Single Euro Payments Area (SEPA) as a form of European hybrid governance. The hybridity of SEPA is found in the interaction between traditional hard law, soft law and privately produced rules. The public and private systems of rules – public in the form of European directives and regulations and private in the form of multilateral agreements among payment service providers (SEPA Rulebooks) – coexist and mutually shape the structure of the European payments system. These two systems of rules have formally been produced within independent rulemaking processes and by discrete rule-makers – public and private respectively. However, public actors have exercised a considerable amount of influence over the private rules. They have done so through informal yet systematized interactions with private actors and through a series of soft laws. And vice versa, private rule-makers and privately-produced rules substantially have affected the content of public rules.

In the last decade, Canada has become the most important home jurisdiction for mining companies operating globally. Certain Canadian NGOs, faith groups and labor unions argue that these activities systematically give rise to conflicts between companies and local communities in circumstances where companies frequently enjoy effective impunity for the human rights violations they may commit. This assessment has prompted these groups and other likeminded actors to advocate for a series of law reform proposals.

As a system of managing environmental and social risk in the sector of large-scale international project finance, the Equator Principles (EPs) have generated increased interest and critical engagement in the private, public, and academic spheres. Particular research in the field of transnational governance is especially concerned with assessing the degree in which private and public actors are revolutionizing the methods and procedures of governance in the wake of the decline of the welfare state, and rise of the post-regulatory state. Social scientists and legal theorists alike have begun analyzing the effects of a shift in the “emphasis of control, to a greater or lesser degree, from traditional bureaucratic mechanisms towards instruments of regulation.” Within this context, the EPs present an opportunity to analyze and assess the structure, procedures and effectiveness of a self-regulatory governance system, voluntarily established by private actors in the international project finance sector, to mitigate social and environmental risks.

The growth of transnational private regulation has involved a great many types of changes, including changes in the types of actors that make rules, in the degree of formality of rules, and in the spatial boundaries of rules. One type of change that merits more focused attention is in the media of rules. Historically a major shift was from rules that were communicated orally, to rules that were inscribed in physical objects. Changes in these objects, from stone or clay to paper and print media were also consequential, enabling rules to be created, preserved and disseminated in new ways. This shift was closely associated with the growth of public authority and its accompanying artefacts such as written constitutions, official documents, and paper money. Today further technological changes in information and communications media are widely recognized as associated with structural transformations of all types of institutions. These technologies facilitate the use of networks and transnational supply chains by business. They stimulate the growth of global social movements and undermine state censorship. They lead to experiments with e-Government and threaten the business models of newspapers and the music industry. But what exactly is the significance of these technological changes for the creation, preservation and dissemination of rules, and how do these changes in the media of rules interact with the growth of transnational private regulation?

Over the past decade and a half, private sector actors have developed innumerable environmental and social standards whose stated intention is to further global public interests, such as sustainable development in less developed countries (LDCs). While some authors have welcomed these standards as a means of addressing transnational problems that governments are ill-equipped to deal with, others argue that these standards often amount to little more than a public relations exercise, with private actors producing high-minded standards on paper but failing to enforce them in practice.

This paper critically explores how to implement changes to corporate behavior in regard to labor-related issues through codes of conduct (“code” or “codes”) that would strengthen the rights of workers. The corporation essentially allows for its own reformation from within. There are many ways the link between corporate governance or corporate social responsibility (“CSR”) and workers' rights can be explored. The term CSR is used to differentiate from the alternate shareholder primacy model of a corporation existing solely for its shareholders and to increase profit. It stands for the idea that corporations have duties to other stakeholders beyond shareholders. Those stakeholders include, but are not limited to, employees and those who produce goods and provide services, environmental agencies, and government. Codes are a soft law mechanism that may be used to create a voluntary standard or set of rules to which corporations are bound. While this may be viewed as rather insubstantial compared to legislation, codes have value in terms of allowing the two (or more) parties that are bound by the code to have direct input in drafting the code. While the inherent imbalance of power involved in the dynamics of the employment relationship between management and workers must be acknowledged and must have an impact on the creation of the code, it does allow for involvement at a level which legislation does not. Part two of this paper examines governance models, Part three discusses codes of conduct as a private regulatory framework, and Part four shows how monitoring agencies are used to ensure compliance with codes.

A market economy is not a product of free economic behavior but rather, of an order requiring the fulfillment of systemic tasks by market operators. Their performance needs to be guided by rules imposing competition as a political tool to functionalize their action, in such a way that market failures can be avoided. This is not only the case for coordinated market economies, typically making use of direct market regulations, but also for liberal market economies, even if these latter ones prefer an indirect regulation of economic life, by having to condition individual behavior. Different modes of regulation may be used to stabilize the same accumulation regime, which is understood as patterns of production and consumption reproducible over a long period. In other words, liberal market ideology, as well as liberalism, is anything but a theory on unlimited freedom: it “needs freedom”, but also needs to “consume” this freedom as a condition of historical and social possibilities for a free market economy. Even if differences may involve the way of assuring those possibilities, the necessity to force economic behavior into functionalizing schemes must be seen as unavoidable.