Chapter 9 explores regulatory compliance, enforcement and certification. It analyses the vital role of enforcement action and how rules aimed at influencing human and institutional behaviour are translated into social reality. It draws attention to the human interaction that takes place during encounters with regulatory enforcement officials and regulators. We discuss how ‘risk-based’ approaches to regulation can be understood and operationalised. It then touches upon the investigatory powers of public regulators, and the nature, purpose and variety of regulatory sanctions. Finally, it examines the role of ‘private’ bodies and other ‘regulatory intermediaries’ in certifying that a regulatee’s activities complies regulatory standards which purport to offer consumers, as primary beneficiaries, ‘assurance’ of the quality of the resulting outputs.

This chapter is concerned with court orders made prior to final judgment, and with enforcement of final judgments. These are matters of civil procedure. They do not deal with final determinations of rights and are not remedies in the technical sense. Rather, they protect the ability of the court to award remedies.

First, if there is a dispute over certain subject matter, it is important that the subject matter of the dispute be maintained until the court can adjudicate the dispute. This is where interlocutory remedies and pre-judgment remedies are relevant. These remedies are awarded before the court makes a final determination of the proceedings and are generally intended to maintain the status quo pending the decision. Such remedies include interlocutory injunctions, which restrain or compel a person to do a particular thing. There are other pre-judgment remedies, such as freezing orders and search orders, which prevent the defendant from removing property from the jurisdiction or from destroying evidence before proceedings can be brought. These ensure that proceedings are not nugatory.

Secondly, after final judgment has been handed down, there must be a means of ensuring that the judgment debtor does what the court has ordered; otherwise the judgment lacks ‘teeth’. Courts have coercive mechanisms which ensure that a defendant complies with an order to pay damages or an order of specific relief.

The law of civil remedies has frequently been described as a ‘capstone’ private law subject. In other words, it is the culmination of a student’s knowledge of private law, and it is intended to assist all the disparate strands from previously studied private law subjects to come together.

It is for this reason that we will take a generally ‘functional’ approach to the organisation of this book, grouping remedies from across different areas according to the broad functions they perform so that parallels and contrasts can be made.

The chapter outlines the distinct features and challenges of the legal regimes for the cooperation by states with international criminal jurisdictions. State compliance with the tribunals’ orders or requests for cooperation is key to their effective functioning absent direct law-enforcement and given the necessary reliance upon national authorities for executing arrests, obtaining evidence, enabling the collection of evidence, carrying out coercive measures, enforcing sentences, and so on. While being in theory more stringent than the ‘horizontal’ schemes for inter-state cooperation in criminal matters, the cooperation regime remains the Achilles heel of international criminal justice in the lack of failproof mechanisms for compelling compliance. The chapter sets out the scope, parameters, and addresses of the obligations to cooperate with UN ad hoc tribunals and the International Criminal Court; the extent to which such obligations can be allowed to prevail over conflicting duties; and the ability of parties in the proceedings to seek cooperation from the respective duty-bearers. It also discusses issues arising in connection with the cooperation for the arrest and surrender of suspects and related to other forms of assistance to international criminal jurisdictions, as well as the challenges of enforcing cooperation obligations and addressing non-compliance.

The final substantive chapter of the book looks at how all these rules are implemented and enforced, and what mechanisms exist to hold violators of the law accountable for their acts. Common Article 1 of the Geneva Conventions requires states to ‘ensure respect’ for the rules of IHL, which is achieved through a range of measures such as education of the armed forces and civil society in the rules of IHL and entrenching the rules in domestic legislation. The chapter describes the roles of the ICRC, Protecting Powers and the International Humanitarian Fact-Finding Commission. The development and content of international criminal law are examined, including individual responsibility for war crimes, lesser violations of IHL, crimes against humanity and genocide, and the concept of command responsibility is explained. The growth in international and hybrid criminal tribunals is noted, as well as the roles played by the United Nations and other organisations in encouraging adherence to the rules of IHL. Finally the chapter examines mechanisms for implementation, enforcement and accountability in non-international armed conflict.

This chapter examines the role potentially played by three types of international bodies in relation to compliance with science-based treaties: non-compliance mechanisms under a treaty system; scientific committees (and other treaty bodies); and international courts or tribunals. The focus on ‘science-based’ treaties stems from the unique nature of the compliance issues that may arise in the context of treaties that govern complex technical or scientific subject matters. These three kinds of international bodies are compared to examine how they may operate in conjunction with one another, to ensure compliance of States parties with treaty obligations.

Much ink in international law scholarship has been spilled on questions of institutional design surrounding dispute settlement. Commentators over the last forty years have praised the concept of third-party dispute settlement as a great achievement in our sovereigntist discipline. These are typically State-to-State mechanisms, although not exclusively so. When we consider “compliance” in international law, most questions of design concentrate on these institutions in which one State maintains that another has violated the latter’s commitments. Today, however, the targets of international legal obligations are changing, and with them the concept of compliance. This chapter assesses trade non-compliance mechanisms (NCMs) and argues that they exhibit significant potential for expansive reach while also suffering shortcomings. The chapter closes by mapping these normative evaluations onto conventional compliance theories to draw conclusions about those theories’ resilience and flexibility before making recommendations both for trade law and international law more generally.

Mergers that involve issues of monopsony are addressed in this chapter. In some cases, a merger may be procompetitive or competitively neutral. In others, however, a merger may be anticompetitive and, therefore, should be barred. Horizontal mergers combine two (or more) firms that operate in the same output market. Since they employ similar workers, the merger may create monopsony power. Antitrust policy regarding horizontal mergers is provided by §7 of the Clayton Act and its judicial interpretation. Typically, the focus is on concentration in the output market, but there has been some recent recognition that a merger may have ill effects in the labor market. We examine this recent concern and provide some examples.

In our final chapter, we summarize the antitrust law and economics of monopsony in the labor market. We provide some policy recommendations that are consistent with economic principles and empirical reality.

Chapter Ten provides an overall evaluation of China’s energy law and regulation and its effectiveness in achieving the carbon neutrality goal. The analysis of the book indicates that China’s energy laws and regulations have significantly evolved due to the energy market reform and the government’s policy emphasis on low-carbon development. The evolving energy law and regulation have created legal obligations towards energy decarbonisation from different sources of law and regulation, which can be interpreted and applied effectively. However, despite the progress made, the book’s analysis highlights several shortcomings of China’s current energy laws and regulations in facilitating the energy transition and achieving carbon neutrality. To address these challenges, Chapter Ten suggests areas for further legal development and research.

This chapter reviews how the recent sanctions have been enforced, both by domestic authorities and through multilateral cooperation. chapter also examines strategies taken by would-be sanctions evaders to conceal their attempts to circumvent the broad sanctions. Enforcement plays a key role in the ability of the sanctioning jurisdictions to effectively implement their sanctions and incentivize change in the behavior of the target or by parties indirectly affected by the sanctions.

Chapter 7 proposes how the liability framework should be implemented. Harm liability can flow from a statutory standard or local tort law. This focus allows liability to complement, rather than replicate, public enforcement. The quantum of liability should depend on the harm incurred by the victim, rather than on the wrongfulness of the perpetrator’s conduct or the consequences that the perpetrator foresaw. Privacy liability is most effective as part of a mechanism of collective redress, such as class actions. A robust notion of loss and harm can address problems of insufficient compensation and uncertainties in class certification. Considering privacy problems at scale, we need a framework recognizing mass privacy effects for regulators and courts.

Personal liberty can be understood in terms of rights. Liberty includes the right to make foolish choices, including some choices that are wrongful. The rights of persons, it is sometimes argued, can be restricted legitimately only for the sake of securing the equal liberty of others. Each person has an equal right to be free. If sound, such a view would establish very substantial limits on the permissibility of legal measures to improve or protect the ethical environment of a society. This chapter examines and rejects this equal right to be free view, challenging both its cogency and determinacy. It next considers a more moderate position that holds that persons have significant rights to do wrong, and that these rights place limits on the range of legal measures that can be taken to improve the ethical environment of a society. After clarifying the general idea of a right to do wrong, the chapter examines and defends two bases for such rights; the first appeals to the value of accommodation and the second to the nested character of rights. An adequate account of ethical environmentalism, the chapter concludes, must respect these rights and the limits on legal measures that they support.