L.A.J. Senden

The Conceptual and Constitutional Challenge of Transnational Private Regulation

Transnational private regulation (TPR) is a key aspect of contemporary governance. At first glance TPR regimes raise significant problems of legitimacy because of a degree of detachment from traditional government mechanisms. A variety of models have emerged engaging businesses, associations of firms, and NGOs, sometimes in hybrid form and often including governmental actors. Whilst the linkage to electoral politics is a central mechanism of legitimating governance activity, we note there are also other mechanisms including proceduralization and potentially also judicial accountability. But these public law forms do not exhaust the set of such mechanisms, and we consider also the contribution of private law forms and social and competitive structures which may support forms of legitimation. The central challenge identified concerns the possibility of reconceptualizing the global public sphere so as better to embrace TPR regimes in their myriad forms, so that they are recognized as having similar potential for legitimacy as national and international governmental bodies and regulation.

Public Accountability of Transnational Private Regulation: Chimera or Reality?

The legitimacy of transnational private regulation is contested where authority is exercised by private actors adopting rules and being involved in processes of implementation and enforcement. We eschew a general discussion of legitimacy in this context in favour of the more manageable sub-component, ‘accountability’. Drawing on the work of political scientists, we conceptualize public accountability both as a virtue and as a mechanism and explore its relevance with regard to transnational private regulation as opposed to its normal habitat, public regulation and authority. This article highlights the relevance and potential of accountability from both a democratic and a constitutional perspective to the realm of transnational private regulation.

Co-actorship in the Development of European Law-making

Reflections on Co-Actorship in the Development of European Law-making.- Reflections on Co-Actorship in the Development of European Law-making.- General Report. The Quality of European Legislation and Its Implementation and Application in the National Legal Order.- Interpretation of European Legislation in the Member States.- Conclusions and Solutions.

Gender Diversity on Corporate Boards in the Netherlands: Waiting on the World to Change

In the Netherlands, increasing the number of women on corporate boards is considered to be, first and foremost, the responsibility of companies themselves and the Dutch legislator has so far been hesitant in introducing binding gender quotas for companies. However, in January 2013 the legislator introduced gender quotas (30%) for the corporate boards of ‘larger companies’ given the low number of women on corporate boards. These quotas were of a ‘soft’ nature since no strict sanctions would be applied if a company failed to comply with the said target. The law was also temporary in nature and expired automatically on 1 January 2016 because of the legislator’s expectations that the quotas would no longer be necessary after 2016. A proposal has been submitted to Parliament to prolong the aforementioned law for another four years. However, this proposal does not provide for any real sanctions for non-compliance with the quotas introduced. The Second and First Chamber of Parliament adopted this proposal without any further discussion on January 19, 2017 and February 7, 2017, respectively.

Getting Women on Company Boards in the EU: A Tale of Power-Balancing in Three Acts

Female under-representation on company boards has remained a persisting problem in most EU countries. Different regulatory and enforcement approaches have been taken across the EU to deal with it, ranging from self- and co-regulatory regimes to very stringent public law quota rules. The adoption of a common European approach has appeared complicated because of the different power plays occurring within the national and European Union context in this field. In three acts, this contribution will tell this power-balancing tale. The first act sets the scene by focussing on the existing inequalities between men and women on company boards, the second act concentrates on the legal tensions arising between public and private actors when it comes to finding an appropriate regulatory response to deal with this problem and the third act addresses the tensions that occur between the EU and the Member States in this regard. This will lay bare the dilemmas the Commission has faced in proposing a European response to the problem in the form of a directive proposal and how it has sought to accommodate the different national approaches.