Open access

Much of my work is freely available on the web. Please visit the Tilburg University Repository to get access to publications that have been cleared for open access.

Regulating Private­ Regulation

European Review of Private Law (ed.) 2019

In this Special Issue a collection of leading authors analyse the influence and control of private law over the ways in which private, non-state actors pursue regulatory functions. Building on studies in the field of digital intermediaries, Corporate Social Responsibility, technical standards, product safety and worker welfare, the authors highlight the importance of private law as a complementary mechanism of control and protection for individuals and firms. This perspective is necessary given the limitations of other fields of law in regulating private regulation. It is also original and innovative given that private law scholarship has only incidentally discussed the capacity of private law to control the exercise of private regulatory power.

The Introduction to the Special Issue is available via SSRN

The implications of the PIP breast implants case at the European Court

European Law Review (with B. van Leeuwen) 2018 We analyse the consequences of the CJEU’s judgment in Schmitt, a preliminary reference concerning the potential liability of the notified body TÜV Rheinland vis-à-vis women who had received breast implants produced by the French manufacturer Poly Implant Prothèse SA (PIP). Our discussion focuses on (1) the impact of the judgment on the damages actions that women have brought against TÜV Rheinland before national courts; (2) the future regulation of medical devices in the EU; and (3) the regulation of private standardisation and certification in EU law. We argue that Schmitt can be seen as part of a broader trend in the case law of the CJEU, in which private regulatory activities are gradually submitted to fundamental principles of EU law. While this “constitutionalisation” of private regulation strengthens the public accountability of these alternative forms of regulation, it also poses fundamental challenges to their current design and internal governance

Private standards in commercial contracts

Edward Elgar 2017  Regulatory standards developed by non-state, private actors are regularly incorporated in contemporary international commercial contracts. In this way, lead firms in the supply chain, such as large retailers and brand-name companies, seek to ensure specific qualities of the goods and services they sell to consumers locally, yet source globally. Compliance with such private standards is significant, both for the lead firm and its suppliers down the chain. For lead firms it is the principle way in which it can deliver on the qualities of the products and services they source globally, while for suppliers compliance is a preliminary condition to access primary commodity markets, to earn a supply contract and to keep it. Assessing and ensuring compliance, however, may be problematic first of all because the qualities private standards aim to ensure are often credence qualities. Secondly, most of the standards used are process-based, and can be unclear or ambiguous. This triggers important (socio-)legal questions concerning the substantive and procedural aspects of compliance with private regulatory standards in commercial contracts that this Chapter seeks to discuss. In addressing these questions the Chapter reviews (empirical) studies on the use of private standards in contracts, private certification schemes and case law on the interpretation of private standards.

Transnational Private Regulation

Oxford Bibliographies in Political Science  (with P. Paiement) 2017  Transnational private regulation has attracted great attention from academics in the last decade. In this bibliography we present the steadily growing body of literature on this theme by first focusing on the concept itself and relating this to parallel concepts developed in political science, law and sociology. Next, we discuss manifestations of transnational private regulation in the domains of technical standardization, environmental sustainability, labor, consumer protection, banking and finance, sports and Internet. This literature identifies a number of fundamental governance challenges. The scholarly responses to these challenges and the theorization around them are discussed in conclusion.

The Impact of Free Movement of Goods and Services on Private law Rights and Remedies

Intersentia 2017 The impact of the free movement of goods and services on private law rights and remedies, and the underlying relationships that are governed by them, is pervasive and multi-faceted. This Chapter provides a systematic analysis of private law implications of the application of this part of EU Internal Market law. It assesses via which doctrines the free movement of goods and services create, modify or extinguish rights and obligations in ‘horizontal’ relations (i.e. relations governed by private law) and whether and how private law remedies are affected in that process as well. Anticipating those consequences is important for legal practice, as they may offer genuine and powerful arguments to solve the underlying private law dispute. A disputant may then leverage primary EU law regulating the trade in goods and provision of services to achieve a favourable outcome. In more academic terms, the analysis helps private law and EU law scholars to better understand the differences that exist between the free movement of goods and services as far as their application to horizontal relations is concerned.

Private Regulation in EU Better Regulation

European Journal of Law Reform 2017 The promotion of private regulation is frequently part of better regulation programmes. Also the Better Regulation programme of the European Union (EU) initiated in 2002 advocated forms of private regulation as important means to improve EU law-making activities. However, for various reasons the ambition to encourage private regulation as a genuine governance response to policy issues has remained a paper reality. This contribution asks whether and to what extent the 2015 EU Agenda on Better Regulation provides renewed guidance on how private regulation might be integrated in EU law-making processes. To that end, it builds on previous (empirical) research conducted on European private regulation and reviews the principal policy documents constituting the new EU agenda on better regulation. It is argued that while the new agenda addresses a number of the shortcomings of the old programme concerning the conceptualization and practice of private regulation in the EU, it still falls short of providing principled guidance on how private regulation can be combined and integrated in EU law-making.

Constitutionalisering van private regulering

Nederlands Juristenblad 2017 Met een aantal recente arresten van het Hof van Justitie van de EU worden standaardisatie en certificatie binnen de werkingssfeer van het Unierecht getrokken daar waar zij de Europese interne markt raken. Aldus worden deze vormen van private regulering onderworpen aan fundamentele beginselen van het Unierecht. Deze trend van constitutionalisering was onvermijdelijk. Bij een groter wordende invloed van private standaardisatie en certificatie in het publieke domein past ook een grotere mate van publieke verantwoording. Deze ontwikkeling brengt enerzijds het risico met zich mee dat vormen van standaardisatie en certificatie die oorspronkelijk bedoeld zijn als een alternatief voor overheidsregulering, geleidelijk karaktertrekken van juist die regulering krijgen. Vanuit het perspectief van rechtsbescherming is dat anderzijds ongetwijfeld winst. Het nationale privaatrecht is het terrein waarbinnen deze constitutionalisering in de eerste plaats zijn impact heeft en de rechtsbescherming zijn beslag moet krijgen.

Hybridization of Food Governance

Edward Elgar (ed with T. Havinga) – 2017  Modern food governance is increasingly hybrid, involving not only government, but also industry and civil society actors. This book deftly analyzes the unfolding interplay between public and private actors in global and local food governance. Split into three parts, chapters focus on the legitimacy and integrity of private food governance, the hybridization of EU Food Law and hybridization in transnational food governance. Within these key areas, food scholars from diverse disciplinary fields present a fascinating array of original empirical case studies, showing hybrid governance arrangements in China, Europe and North America. Through these practical examples, they consider in detail how the responsibilities and risks inherent in these arrangements are allocated, how their legitimacy is ensured and the effect that they have on industry and government practice

Regulatory Intermediaries in Food Safety Governance

Annals of the American Academic of Political and Social Sciences – 2017 This article discusses the value of the RIT model for analyzing complex governance relationships in the regulation of food safety. By exploring food safety regimes involving the European Union and the Global Food Safety Initiative, it highlights the diverse and complex relationships between the actors in public, private, and hybrid regimes of food safety regulation. The article extends the basic RIT model to better fit the reality of (hybrid) governance relationships in the modern regulation of food safety, arguing that the model enables disaggregation of these regimes into analytical subunits or “regulatory chains,” in which each actor contributes to and affects the regulatory process. Finally, the contribution critically assesses what the RIT model adds to alternative theoretical approaches in identifying, mapping, and explaining the different roles that actors play vis-à-vis others in regulatory regimes.

White Paper Duties of Care in Cybersecurity

European Foresight of Cyber Security – 2016 This White Paper was commissioned by the Dutch Cyber Security Council as part of the National Coordinator for Security and Counterterrorism, residing under the Ministry of Security and Justice. It provides a framework for discussion around the need to harmonise legal standards for duties of care and diligence in cybersecurity related to ICT goods and services, and offers proposals to better protect the interests of consumers of such goods and services.

EU Product Liability and Medical Devices

European Review of Private Law – 2015

This paper examines the actual and potential effects of the judgment of the Court of Justice of the EU in Boston Scientific Medizintechnik (Joined Cases C-503/13 and C-504/13) on the interpretation and application of the Product Liability Directive (and its implementing laws) by national courts. More specifically, it assesses to what extent the judgment is likely to reinvigorate the importance of this Directive at the national level as a distinctive ground for product liability.

Patterns of Interplay in Public and Private Food Regulation

Special Issue of the European Journal of Risk Regulation – 2015

This Special Issue aims to develop a deeper understanding of the interplay between public and private actors in the regulatory governance of food. It starts from the observation that the traditional concept of law as command-and-control legislation and law enforcement by national governmental bodies, including inspectorates and courts, is not adequate to capture today’s world of food governance. Nowadays, a broad range of public and private entities acting at national and international level seek to shape and influence the production, trade and handling of food and the risks involved therein. Drawing on data from Europe and the United States, the contributions to this Special Issue seek to unravel the intimate, yet complex ties between public and private actors within governance arrangements regulating food safety and sustainability.

Enforcing Transnational Private Regulation

Edward Elgar – 2014

This book offers a rich comparative study of the institutional design of transnational private regulation in the fields of advertising and food safety. It provides original insights in the practice of enforcing transnational private regulation and its interplay with courts and administrative authorities. The book’s findings, drawn from jurisdictions in the European Union, help identify circumstances in which administrative enforcement may strengthen private enforcement mechanisms, illuminate the role of courts in enforcing transnational private regulation, and inform current theoretical understandings of the function of public enforcement capacity in private regulatory regimes.

The Impact of Primary EU Law on Private Law Relationships

European Review of Private Law – 2014

This paper that the position of the Court of Justice of the EU to deny horizontal direct effect to the freedom of goods, but award it to the freedom of services, is conceptually unclear and dents the uniform interpretation of EU free movement law. Modern trends of the “servitisation of products” and “commodification of services” signify that trade in goods and the provision of services are intimately linked and mutually complementary. While the Court has recognised this interdependence in its case law, it fails to follow up on the consequences this has for its case law on the horizontal direct effect of the freedom of goods and services. The paper therefore argues that the judge-made distinction between the freedoms of goods and services should be revisited in the light of the reality of today’s business relationships and supply chains.

Gorillas in the Closet? Enforcing Transnational Private Regulation

Regulation & Governance – 2013 

This paper examines to what extent the background presence of state regulatory capacity – at times referred to as the “regulatory gorilla in the closet” – is a necessary precondition for the effective enforcement of transnational private regulation. By drawing on regulatory regimes in the areas of advertising and food safety, it identifies conditions under which (the potential of) public regulatory intervention can bolster the capacity of private actors to enforce transnational private regulation.

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Please visit the Tilburg University Repository to get free access to open access publications.