Much of the attention in the recent transatlantic trade negotiations have focused on the need to promote regulatory cooperation across a range of sectors to realize efficiency gains and reduce market access barriers. Comparison of the US and EU regulatory systems is complicated by the fact that both sides are delegated different kinds of powers, leading to calls for administrative reforms such as greater transparency, giving reasons requirements, or notice rule and comment approaches. Yet in all of these debates, little attention is given to the role played by private industry standards in influencing the choices made to meet the regulatory rules and norms. Our paper focuses on the role played by industry standards in promoting or impeding regulatory cooperation. Through the lenses of private law making we are seeking to map the interplay between voluntary industry standards and public regulation in transatlantic relations.
While scholars and politicians have argued for the need for more collaborative processes among regulators we focus on private industry associations and standard setting bodies as they can provide the implementation and compliance mechanisms to provide regulatory coherence among the plethora of rules that create barriers to trade.
By foregrounding the role of private law-making in creating barriers or enhancing regulatory coordination in TTIP we map the extent to which private actors, ranging from lobbies, private standard bodies and stakeholders form an essential link between public regulation and market access. From this perspective we consider to what extent private law making has changed the nature of international regulatory cooperation—starting from national changes in public-private governance to the trade-offs that might accompany its benefits. To what extent might a more explicit role for private rule-making further reduce access, transparency and requires a different production of information and knowledge in the trade negotiations? How should trade negotiations balance the need for industry expertise with public participation and access in shaping regulatory outcomes, when traditional modes of administrative delegation rarely foregrounds private standards bodies?
