This paper investigates the prospective application of arbitration by Transnational Private Regulation (TPR). It builds on the study of TPR developed by Fabrizio Cafaggi et al. TPR addresses the ever-increasing transfer of regulatory power from national to global levels, and from public to private regulators. TPR entails private regulatory co-operation be-yond the jurisdictional boundaries of States through voluntary standards. The regimes of TPR are built by a variety of actors, such as companies, NGOs, independent experts, and epistemic communities. Examples of TPR can be found in food safety, forestry management, trade, and derivatives, among other fields. More specifically, they concern private actors engaging in transnational coordination of standard setting such as the Forest Stewardship Council (FSC) that was developed to foster responsible management of the world’s forests. There are four main characteristics of TPR: legitimacy, quality, effectiveness, and enforcement. I will describe those four characteristics in brief here. First, the legitimacy of TPR is built around consent through voluntary entry, participation, and exit of regulated entities. Important to this contribution is that the legitimacy of TPR goes beyond its legal dimension, measured by purely legal standards. Hence, the legitimacy of TPR is largely determined by standards developed by social and economic institutions relevant to specific TPR regimes. The role of those institutions in standard settings is higher in private TPR regimes than private-public TPR regimes, where some forms of compliance are mandatory. Second, the quality of TPR corresponds to the ex ante and ex post evaluation cycle of regulatory processes. It is also linked with the transparency of TPR. Third, the effectiveness of TPR is measured according to the extent to which the objectives of TPR (or selected TPR regimes) are met. And finally, enforcement of TPRis understood as ‘ensuring compliance with commitments’. Enforcement of TPR can take place through courts, administrative agencies, and private dispute resolution—including the arbitration at the core of this contribution. Cafaggi’s study identified rather selective use of arbitration in TPR, but also recommended changes to make arbitration law more adaptable to TPR. Furthermore, the study recommended that more specialized dispute resolution institutions are created to exclusively serve TPR. Against this background, I shift the main focus of analysis from TPR to arbitration. Whereas Cafaggi argued that arbitration may be suitable for TPR as a means of private enforcement, in this paper I go even further, arguing that arbitration as a means of informal, out-of-court dispute resolution is well suited to strengthen the normativity of TPR. This is so because private arbitration actors (including, inter alia, arbitrators and arbitral institutions) are already equipped with the tools necessary to facilitate cross-border TPR, which is done through informal standards and procedures with origins in the communitarian values and reputational mechanisms used by different communities before the development of modern States. The roots of most private justice regimes—including arbitration—are informed by communitarian values such as collaboration, participation, and personal trust. Those values, together with other core characteristics of arbitration correspond to all core characteristics of TPR, making both systems comparable and complementary. The analytical framework incorporated in this paper follows the four core characteristics of TPR. Hence, the paper is organized into five sections. The first section contains the introduction. In the second section, I analyze the legitimacy of arbitration vis-à-vis the legitimacy of TPR. In the third section, I investigate the accountability of arbitration as a means of quality signaling vis-à-vis TPR. In the fourth section, I focus on the remedies available to arbitrators in a view of TPR’s effectiveness. Finally, in the fifth section, I analyze enforcement through arbitration and its impact on the exclusiveness versus complementarity of TPR regimes. Conclusions follow, including recommendations for future research. Part of topic "The blurring distinction between public and private in international dispute resolution"
MULTIFILE
The article engages with the recent studies on multilevel regulation. The starting point for the argument is that contemporary multilevel regulation—as most other studies of (postnational) rulemaking—is limited in its analysis. The limitation concerns its monocentric approach that, in turn, deepens the social illegitimacy of contemporary multilevel regulation. The monocentric approach means that the study of multilevel regulation originates in the discussions on the foundation of modern States instead of returning to the origins of rules before the nation State was even created, which is where the actual social capital underlying (contemporary) rules can be found, or so I wish to argue. My aim in this article is to reframe the debate. I argue that we have an enormous reservoir of history, practices, and ideas ready to help us think through contemporary (social) legitimacy problems in multilevel regulation: namely all those practices which preceded the capture of law by the modern State system, such as historical alternative dispute resolution (ADR) practices.
This article examines to what extent and how cannabis users in different countries, with different cannabis legislation and policies practice normalization and self-regulation of cannabis use in everyday life. Data were collected in a survey among a convenience sample of 1,225 last-year cannabis users aged 18–40 from seven European countries, with cannabis policies ranging from relatively liberal to more punitive. Participants were recruited in or in the vicinity of Dutch coffeeshops. We assessed whether cannabis users experience and interpret formal control and informal social norms differently across countries with different cannabis policies. The findings suggest that many cannabis users set boundaries to control their use. Irrespective of national cannabis policy, using cannabis in private settings and setting risk avoidance rules were equally predominant in all countries. This illustrates that many cannabis users are concerned with responsible use, demonstrating the importance that they attach to discretion. Overall, self-regulation was highest in the most liberal country (the Netherlands). This indicates that liberalization does not automatically lead to chaotic or otherwise problematic use as critics of the policy have predicted, as the diminishing of formal control (law enforcement) is accompanied by increased importance of informal norms and stronger self-regulation. In understanding risk-management, societal tolerance of cannabis use seems more important than cross-national differences in cannabis policy. The setting of cannabis use and self-regulation rules were strongly associated with frequency of use. Daily users were less selective in choosing settings of use and less strict in self-regulation rules. Further differences in age, gender, and household status underline the relevance of a differentiated, more nuanced understanding of cannabis normalization.
This project addresses the fundamental societal problem that encryption as a technique is available since decades, but has never been widely adopted, mostly because it is too difficult or cumbersome to use for the public at large. PGP illustrates this point well: it is difficult to set-up and use, mainly because of challenges in cryptographic key management. At the same time, the need for encryption has only been growing over the years, and has become an urgent problem with stringent requirements – for instance for electronic communication between doctors and patients – in the General Data Protection Regulation (GDPR) and with systematic mass surveillance activities of internationally operating intelligence agencies. The interdisciplinary project "Encryption for all" addresses this fundamental problem via a combination of cryptographic design and user experience design. On the cryptographic side it develops identity-based and attribute-based encryption on top of the attribute-based infrastructure provided by the existing IRMA-identity platform. Identity-based encryption (IBE) is a scientifically well-established technique, which addresses the key management problem in an elegant manner, but IBE has found limited application so far. In this project it will be developed to a practically usable level, exploiting the existing IRMA platform for identification and retrieval of private keys. Attribute-based encryption (ABE) has not reached the same level of maturity yet as IBE, and will be a topic of further research in this project, since it opens up attractive new applications: like a teacher encrypting for her students only, or a company encrypting for all employees with a certain role in the company. On the user experience design side, efforts will be focused on making these encryption techniques really usable (i.e., easy to use, effective, efficient, error resistant) for everyone (e.g., also for people with disabilities or limited digital skills). To do so, an iterative, human-centred and inclusive design approach will be adopted. On a fundamental level, scientific questions will be addressed, such as how to promote the use of security and privacy-enhancing technologies through design, and whether and how usability and accessibility affect the acceptance and use of encryption tools. Here, theories of nudging and boosting and the unified theory of technology acceptance and use (known as UTAUT) will serve as a theoretical basis. On a more applied level, standards like ISO 9241-11 on usability and ISO 9241-220 on the human-centred design process will serve as a guideline. Amongst others, interface designs will be developed and focus groups, participatory design sessions, expert reviews and usability evaluations with potential users of various ages and backgrounds will be conducted, in a user experience and observation laboratory available at HAN University of Applied Sciences. In addition to meeting usability goals, ensuring that the developed encryption techniques also meet national and international accessibility standards will be a particular point of focus. With respect to usability and accessibility, the project will build on the (limited) usability design experiences with the mobile IRMA application.
