An Assessment of the Effectiveness of International Private Regulation in the Corporate Social Responsibility Arena
| Author | Martijn Scheltema |
| Published date | 01 September 2014 |
| Date | 01 September 2014 |
| DOI | http://doi.org/10.1177/1023263X1402100301 |
| Subject Matter | Article |
21 MJ 3 (2014) 383
ARTICLES
AN ASSESSMENT OF THE EFFECTIVENESS
OF INTERNATIONAL PRIVATE
REGULATION IN THE CORPORATE
SOCIAL RESPONSIBILITY ARENA
A Legal Perspective
M S*
ABSTRACT
e e ectiveness of internation al private regulation can be assesse d from many perspectives,
including legal, behavioural, governance and consequential aspects , impact, acceptance/
governance and behavioral aspects. Although all of these perspectives are of importance
and, indeed, intertwined, this contribution focuses on the legal aspect s. e legal aspects
involve the objectives of the international private initiatives, whether the norms are
speci c, whether the re is regular evaluation involving relevant stakeholders, whether the
initiatives provide ‘con ict of law’ rules in connection with other pr ivate standards or
public regulation, enforcement of private regul ation, and con ict resolution.
Keywords: CSR; con ict resolution and CSR; e ectiveness; evaluation of private
regulat ion; private regulation
§1. IN TROD UC TI ON
is contribution foc uses on aspe cts of the as sessment of e ectiveness of international
private regulation in the C orporate Social Responsibilit y (CSR) arena. is focus
might need some clari cat ion. ere are ma ny perspectives on the e ectiveness of
* Martijn Schelt ema is a Professor at Erasmu s University Rotterdam , Partner at Pels Rijck en &
Droogleever For tuijn, a law rm based in e Hague , and member of the governing boa rd of ACCESS
(see www.accessfacility.org).
Martijn Schelt ema
384 21 MJ 3 (2014)
transnational private reg ulation in CSR. In this respe ct, the legal, economic, sociological
or psychological avenues provide opportunit ies to explore this fur ther. Obviously, the
more avenues that demons trate e ectiveness, the more e ective private regulation is
deemed to be. However, e ectiveness i s not a clearly de ned term. Some use this term
in addition to the legal or soc iological avenue, or as a synonym for impact as sessment
relating to transnationa l private regulation (which adopts insights from t he economic
and sociological approach). I de ne e ectiveness a s an overarching term entai ling the
legal, economic, sociologica l and psychological avenues.
at being said, this contribution is con ned to a legal approach. It provides an
outline of ex ante legal e ecti veness indicators rega rding internation al private regu lation
in CSR. But rst, the essence of international private regu lation (in the eld of CSR) is
explained, followed by its advantages a nd disadvantages.
§2. INTERNATIONAL PRIVATE REGULATION: ADVANTAGES
AND DISADVANTAGES
By and large, international private reg ulation might be de ned as a set of private norms
which have been established by t hose who are bound by these ru les – sometimes in
collaboration with ot hers – their representatives, or an overarching body, and includes
enforcement.1 International private regu lation might a lso be de ned as a framework
in which, to a certai n extent, societal ac tors accept responsibility for establi shing and/
or applying enforcing such rule s, if applicable, within a legislative or legal f ramework.2
e key ac tors in such regimes include both civ il society or non-governmental
organizations (NGOs) and enterprises .3 ey might even include governmenta l actors.
Although private regu lation has a self-binding e ect in many cases, it a ects third
parties as wel l, even, and o en, intentionally.4 International priv ate regulatory regime s
are international (or transnational) in t he sense that their e ec ts cross borders, but are
not constituted through t he cooperation of states as re ected in treaties. International
or transnational private regu lation di ers from traditional domest ic forms of private
regulation because of its broader scope a nd as it is frequently less speci c.5
1 A. Overmars , ‘E ecten van gedra gscodes: twee recente ca ses’, 14 Bestuurswetenschappen (2011), p.16.
2 I. Giesen, Alternatieve regelgeving in privaatrechtelijke verhoudingen, Preadvies NJ V 2007 (Kluwer,
2007), p. 74–78 and especi ally 77. However, other de nitions are conceivable , but as I focus on
e ectiveness I am not going to ela borate on this de nition.
3 C. Scott, F. Cafa ggi and L. Senden , ‘ e Conceptual a nd Constitutional Challe nge of Transnational
Private Regu lation’, in C. Scott, F. Cafagg i and L. Senden (eds.), e Chall enge of Transnational Private
Regulation: C onceptual and Const itutional Debates (Wi ley-Blackwell, 2011), p.3.
4 See A. Ogus and E. Carbonara, ‘Self-regulation’, in F. Parisi (ed.), Production of Legal Rules (Edwa rd
Elgar, 2011), p.228–230.
5 D. Curtin and L . Senden, ‘Public Accou ntability of Transn ational Private Reg ulation: Chi mera or
Rea lit y?’, in C . Sc ott , F. C afa gg i and L. S end en (e ds.), e Challenge of Transnati onal Private Regul ation:
Conceptual an d Constitutional Deb ates, p.164.
To continue reading
Request your trial