Governance and Private Regulator Liability
Type de matériel :
7
Changes in the European regulatory space lead to new questions concerning the identity and liability of regulators. The increasing use of self-regulation, co-regulation, and delegated self-regulation in different fields have empowered private regulators, who have been playing an increasing strategic role in defining the features of market regulation and integration at both European and national level. To ensure effectiveness and accountability for these regulatory strategies, a European coordinated regime of conflict of interest and liability becomes crucial. This paper focuses on the liability of private regulators for 1) failure to regulate, or 2) failure to control regulatees' compliance and for defective regulation and control. A set of principles concerning the liability of private regulators should be agreed, paying attention to field specificity. The analysis suggests that there should be a significant difference between liability regimes concerning purely private regulators and those related to private regulators acting within a coordinated framework of co-regulation and delegated self-regulation. Furthermore it argues that a stronger correlation between models of regulation (i.e. command and control, responsive regulation, market incentives) and models of liability is needed, whereas today's national legal systems mainly associate liability regimes to the organizational model of the private regulator (association, foundation, company, consortium, etc.). The design of liability regimes for private regulators should combine the regulatory model and the governance structure so as to guarantee compliance by regulatees and accountability toward third parties. The paper concludes with a research agenda focusing on the blurring relationship between standard setting and monitoring and its influence on the liability aspect.
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