The ‘Resilience and Evolution of Economic Activism and the Role of Law’ (REVEAL) research project investigates the origins and causes of the dominance of private rule-making bodies, focusing on their mutability and resilience. It does so by addressing the following research question: what enabling conditions, innate traits and mechanics allow for the transformation, adaptability and resilience of private rule-making bodies amid exogenous regulatory shocks and how does the law perpetuates this dominance?
The global financial crisis put basic tenets of neoliberalism into question. Previous crises on product safety also exemplified the limits of delegating regulatory power. However, in the medium run, private regulatory bodies re-assume their previous powerful status and continue to exert large, and seemingly unconstrained, influence on the functioning of economic activity.
This research project investigates the origins and causes of the dominance of private rule-making bodies, focusing on their mutability and resilience. It does so by addressing the following research question: what enabling conditions, innate traits and mechanics allow for the transformation, adaptability and resilience of private rule-making bodies amid exogenous regulatory shocks and how does the law perpetuates this dominance?
This project develops a multidisciplinary conceptual framework to analyse structures, institutional design and adaptive/resilience strategies in 10 non-public regulatory bodies and their public law counterparts. Data are collected via qualitative methods (interviews with key individuals, direct observations, historical institutionalism, process tracing) to identify trajectories of change and causation spanning three decades.
This research is groundbreaking in three ways:
- by delving into the peculiarities of private collective action, it sets the basis for a new theory of creation, evolution and resilience of such action;
- by integrating multiple disciplines, it innovates methodologically and offers a multidisciplinary and thus more comprehensive theory of private action in the service of future generations of researchers and policymakers;
- by collecting data and theorizing on a largely unexplored (from an empirical viewpoint) area such as transnational standard-setting, it revisits the promises, flaws and limits of technocratic rule, results in a more balanced understanding of transnational regulatory governance, and resolutely offers a regulatory theory for private regulatory bodies.
In this respect, the project focuses on standardization in key areas of economic activity - financial services and goods & manufacturing. REVEAL is carried out by the Principal Investigator, Prof. Panos Delimatsis, Assistant Professors Dr. Enrico Partiti, Dr. Stéphanie Bijlmakers, and Dr. Konrad Borowicz, and two PhD-students (Shanya Ruhela and (Zuno Verghese).
- Global Standard-Setting 2.0: How the WTO Spotlights ISO and Impacts the Transnational Standard-Setting Process
- International Trade Law and Technical Standardization. In J. Contreras (Ed.), The Cambridge Handbook of Technical Standardization Law: Further Intersections of Public and Private Law (Cambridge Law Handbooks, pp. 7-27). Cambridge: Cambridge University Press, 2019. doi:10.1017/9781316416785.002
- When disruptive meets streamline: International standardization in blockchain. In O. Hari, D. Kraus, & T. Obrist (Eds.), Blockchains, smart contracts, decentralised autonomous organisations and the law (pp. 83-100). Edward Elgar, 2019
- (Accepted/In press). Global convergence through European Union value chain regulation and voluntary standards. Forthcoming in Fahey, E. (Ed.), Modelling the dynamics of convergence and divergence of the EU in the World. Oxford: Hart Publishing. Available as TILEC Discussion Paper No. DP 2019-025.
- (Accepted/In press). Trust in global governance: Ensuring trustworthiness of transnational private regulators. N.Y.U. Journal of International Law and Politics, 52(1). Previous version available at SSRN.
- From the Board: International Trade and the Regulation of Responsible Global Value Chains. Legal Issues of Economic Integration, 46(1), 1-6., 20198
- Orchestration as a form of public action: The EU engagement with voluntary sustainability standards. European Law Journal, 2019, 25(1), 94-117.
Borowicz, M. K.
- (2019). Contracts as Regulation: the ISDA Master Agreement. Paper presented at the 36th Annual Conference of the European Association of Law and Economics.
The Resilience of Voluntary Economic Activism – Lessons from the Great Recession. Paper presented at the Biennial conference on international economic law of the American Society of International Law (ASIL), University of Miami.
Corraporteur for Panel on ‘Threats to Cross-Border Banking: Resolution and Brexit’ at the Harvard Law School Program on International Financial Systems Symposium on Building the Financial System of the 21st Century: An Agenda for Europe and the United States, The French Treasury, Paris, France.
- Global Regulatory Governance of Goods and Standard setting Bodies: The Impact of Crisis Events. Panel chaired at the International Conference on Global Regulatory Governance, The Chinese University of Hong Kong, Hong Kong.
- Resilience in the Face of Crisis: The Case of GlobalG.A.P., the Forest Stewardship Council and Fairtrade International. Paper presented at the International Conference on Global Regulatory Governance, The Chinese University of Hong Kong, Hong Kong.
- Lobbying in Face of Crises: The Case of Financial Standards. Paper presented at the International Conference on Global Regulatory Governance, The Chinese University of Hong Kong, Hong Kong.
- Contracts as regulation: the ISDA Master Agreement. Paper presented at the Contract Law panel at National Business Law Scholars Conference, Berkeley School of Law, University of California.
- Participant at the Harvard Law School Program on International Financial Systems Symposium on Building the Financial System of the 21st Century: An Agenda for Europe and the United States, The French Treasury, Paris, France.
- Elusive after all. How transnational private regulation escapes public influence’. Paper presented at the panel on ‘Examining private actors as regulatory authorities’ at the TUM School of Governance, Center for Doctoral and Postdoctoral Studies’ Emerging Scholars’ Workshop on Power Sharing or Power Shifts? Examining the role of public-private interactions in global governance, TUM School of Governance, München/ Munich.
- Taming or Enabling Private Rule makers? Assessing Resilience of Transnational Standardsetters. Panel chaired at the International Conference on Global Regulatory Governance, The Chinese University of Hong Kong, Hong Kong.
- The Performativity of Private Rule making. Management System Standards as Source of Power of Standardising Bodies. Paper presented at the International Conference on Global Regulatory Governance, The Chinese University of Hong Kong, Hong Kong.
Transnational private regulation has emerged and flourished in domains traditionally associated to public authority. Polycentric and de-centred conceptualisation of regulatory governance identity a margin for the public steering of private regimes, including via proceduralisation. This paper illustrates a few instances where private regulators have anticipated public intervention, instrumentally reacted to forms of indirect control, and continued their assertion of regulatory functions as undisturbed from public authority as possible. This contribution aims at locating the source of elusiveness into the considerable resourcefulness enjoyed by transnational private regulators. In particular, rapidity of standard-setting, extreme organisational flexibility and continuous learning are of paramount importance to informally pre-empt public regulation and defuse demands for reform from public and private stakeholders. In a similar manner, setting standards which structure economic activity in a manner which is congenial to the preference of private interests for light-touch rules, while signalling nonetheless effective regulatory competences, confers an influence in the regulation of markets and market-related activities which is almost impossible to harness by public authority.
- The Resilience of Standard - Setting Bodies in Banking: The Case Study of Basel Committee on Banking Supervision. Presented at the ‘Investment, Banking and Antitrust Session’ at 8th SIEL PEPA Conference, King’s College London.
REVEAL member, Shanya Ruhela (Ph.D. Researcher) presented her work-in-progress at the 8th Conference of the Postgraduate and Early Professionals/Academics Network of the Society of International Economic Law (PEPA/SIEL), held in London on May 30-31, 2019. Her presentation was on understanding the resilience of standard setting bodies in banking by undertaking a case study of the Basel Committee on Banking Supervision (the “Committee”).
The Committee is a self-enforcing institution, which promulgates minimum banking standards at an international level. These standards have no legal, binding or coercive force mandating compliance. Her work attempts to decipher the changes that occurred in standard-setting process of the Committee as a result of the Great Financial Crisis of 2008, which ultimately led to negotiation and adoption of a new set of standards (Basel III). Resilience is the capacity to experience shocks while retaining identity. The overarching aim of her research is to identify the key strategies for resilience of non-state actors or private standard-setting bodies by examining the evolution of standard-setting process by the Committee.
- Hearing above the din in the standards setting space in the ICT Domain the role of Standards Developing Organisations (SDOs). Presentation at the International Conference on Global Regulatory Governance, The Chinese University of Hong Kong, Hong Kong.
- Knowledge Transfer in the ICT Domain in the EU:ETSI’s role in being a Beacon. Presentation at the ‘Technical standardisation and STS’ session at the 18th Annual STS Conference Graz 2019 - Critical Issues in Science, Technology and Society Studies, Graz University of Technology, Austria.
- Transnational Private Environmental Regulation. Speaker at the Roundtable co-organized by Law and Justice Across Borders/ACELG/ACES - ‘The EU as a global environmental regulator - extraterritoriality, transnational effects and legitimacy’. Amsterdam Institute for Social Science Research (AISSR), Amsterdam, The Netherlands.
- Global convergence through standards and private actors? EU and the transnational regulation of responsible business conduct. Speaker for the session on ‘Convergence: Deeper, wider or lower (I)?’ at the ‘Modelling convergence of the EU with the world: taking, receiving and becoming EU law’ workshop. The City Law School, City University of London.
- The Future of Standardization Law. Speaker at the World Standards Cooperation (WSC), Academic Roundtable 2018: Development of an Agenda for International Standardization Research, World Standards Cooperation 2018, organized by Reinhard Weissinger, ISO, and Prof. Henk de Vries, RSM, Erasmus University Rotterdam and hosted by China University of Metrology, Hangzhou, China.
This project has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation program (grant agreement No 725798)