The project is financially supported by the Slovenian Research Agency under the code ID Z5-8239.

Project leader: Dr. Jerneja Penca

Transnational private standards (TPS) have emerged and expanded in the last two decades, governing production processes and supply chains across the sectors and across the globe. It is beyond doubt that TPS represent a growing and an increasingly important governance tool. Environmental law is not only one among, but a primary field, where transnational private regulation is being displayed and is becoming heavilyy rooted in private law and governance.

TPS encompass legal and extra-legal influences on governments, corporations and households by actors other than states or inter-governmental organizations. For the purposes of this study they include (collective) standard-setting, certifications, supply chain agreements, voluntary agreements and other similar practices.

The reasons for their emergence are various. In some areas, TPS are a response to the cumbersome, slow or ineffective solutions of the public governance and framed as an alternative to ‘traditional’ international public law, such as treaty law. In other cases, private standards establish the tools and processes to meet the requirements of the public norms, operating on a perception that they complement public law.

Overall, the implications of standards are not straightforward. On the one hand, there is a strong corporate demand for TPS. They create performance requirements related to the access to finance, internal business processes, membership of trade bodies, certification of products and services, and access to markets. They also provide opportunities for ‘operationalizing’ treaties and making them concrete. On the other hand, there are concerns about the transnational private standards’ exclusionary socio-economic effect in specific countries and between producers, the lack of transparency and accountability, and their legitimacy deficits. The dilemmas and gaps in knowledge relating to TPS become even more relevant in face of the increasing trend of clustering or harmonizing collective standards.

This project looks at the reasons for the emergence of TPS in a little explored area, and addresses in particularly the question of the interplay between the public and private law. It asks how to square the corporate need for concrete standards in order to implement environmental obligations with the international public law norms and the diversity of values and ecosystems. The ultimate question guiding the project is: In view of the most viable conceptualisation of legal and governance model, what legal force should harmonized/coordinated transnational environmental private standards carry? 

Projects co-financed by Slovenian Research Agency (ARRS)