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
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 literature on responsive regulation argues that citizens should be involved in regulatory practices to avoid capture between regulator and regulatee. It also argues that including citizens can add an important perspective to regulatory practices. However, we know little about how citizens' perspectives are brought into regulatory practices. This paper draws on existing qualitative research to compare and analyze four cases of experimental participatory regulation in Dutch health care, focusing on the theoretical assumptions that citizen involvement (a) prevents capture, and (b) stimulates the inclusion of new perspectives. Our results show that involving citizens in regulation can increase transparency and trust in regulatory practices and familiarizes regulators with other perspectives. It is, however, up to the regulator to work on deriving benefits from that involvement—not only the practical work of organizing participatory regulation, but also the conceptual work of reflecting on their own assumptions and standards. We do find evidence for weak forms of capture and argue for the need to extend capture to involve multiple actors. We reflect on these results for theory development and regulatory practice.
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Due to the existing pressure for a more rational use of the water, many public managers and industries have to re-think/adapt their processes towards a more circular approach. Such pressure is even more critical in the Rio Doce region, Minas Gerais, due to the large environmental accident occurred in 2015. Cenibra (pulp mill) is an example of such industries due to the fact that it is situated in the river basin and that it has a water demanding process. The current proposal is meant as an academic and engineering study to propose possible solutions to decrease the total water consumption of the mill and, thus, decrease the total stress on the Rio Doce basin. The work will be divided in three working packages, namely: (i) evaluation (modelling) of the mill process and water balance (ii) application and operation of a pilot scale wastewater treatment plant (iii) analysis of the impacts caused by the improvement of the process. The second work package will also be conducted (in parallel) with a lab scale setup in The Netherlands to allow fast adjustments and broaden evaluation of the setup/process performance. The actions will focus on reducing the mill total water consumption in 20%.
The transition to a circular, resource efficient construction sector is crucial to achieve climate neutrality in 2050. Construction stillaccounts for 50% of all extracted materials, is responsible for 3% of EU’s waste and for at least 12% of Green House Gas emissions.However, this transition is lagging, the impact of circular building materials is still limited.To accelerate the positive impact of circulair building materials Circular Trust Building has analyzed partners’ circular initiatives andidentified 4 related critical success factors for circularity, re-use of waste, and lower emissions:1. Level of integration2. Organized trust3. Shared learning4. Common goalsScaling these success factors requires new solutions, skills empowering stakeholders, and joint strategies and action plans. Circular TrustBuilding will do so using the innovative sociotechnical transition theory:1.Back casting: integrating stakeholders on common goals and analyzing together what’s needed, what’s available and who cancontribute what. The result is a joint strategy and xx regional action plans.2.Agile development of missing solutions such a Circular Building Trust Framework, Regional Circular Deals, connecting digitalplatforms matching supply and demand3.Increasing institutional capacity in (de-)construction, renovation, development and regulation: trained professionals move thetransition forward.Circular Trust Building will demonstrate these in xx pilots with local stakeholders. Each pilot will at least realize a 25% reduction of thematerial footprint of construction and renovation
The energy transition is a highly complex technical and societal challenge, coping with e.g. existing ownership situations, intrusive retrofit measures, slow decision-making processes and uneven value distribution. Large scale retrofitting activities insulating multiple buildings at once is urgently needed to reach the climate targets but the decision-making of retrofitting in buildings with shared ownership is challenging. Each owner is accountable for his own energy bill (and footprint), giving a limited action scope. This has led to a fragmented response to the energy retrofitting challenge with negligible levels of building energy efficiency improvements conducted by multiple actors. Aggregating the energy design process on a building level would allow more systemic decisions to happen and offer the access to alternative types of funding for owners. “Collect Your Retrofits” intends to design a generic and collective retrofit approach in the challenging context of monumental areas. As there are no standardised approaches to conduct historical building energy retrofits, solutions are tailor-made, making the process expensive and unattractive for owners. The project will develop this approach under real conditions of two communities: a self-organised “woongroep” and a “VvE” in the historic centre of Amsterdam. Retrofit designs will be identified based on energy performance, carbon emissions, comfort and costs so that a prioritisation strategy can be drawn. Instead of each owner investing into their own energy retrofitting, the neighbourhood will invest into the most impactful measures and ensure that the generated economic value is retained locally in order to make further sustainable investments and thus accelerating the transition of the area to a CO2-neutral environment.
