The central question of regulatory choice and its determining elements is approached in the three domains from both an empirical perspective (what are these factors in regulatory practice, as evidenced by a number of case studies) and a normative one (what should these factors be, in societies based on the rule of law and the broader principles of constitutional democracy).
The case studies will thus shed light on how the theoretical dichotomy or inherent tension in regulatory choice between effectiveness and legitimacy concerns is dealt with in practice. This will permit an assessment of poor and good practices and an evaluation of the conditions favouring the choice among private, mixed, or public regulatory regimes. Extend-ing this analysis, we will establish a model/matrix for private/mixed/public regulation meeting the normative criteria.
With a view to this aim, the case studies – organised in separate re-search units according to the above domains – have been selected not only on the basis of the issues of effectiveness, quality, legitimacy and enforcement they evoke, but also in terms of the variety of modes of regulation they entail; predominantly public, predominantly private, mixed, not much regulation at all, but needing it.
The combined normative-case studies approach is essential for finding responses to the fol-lowing central questions:
- what are the conditions under which different forms of global, regional and transnational regulation (public, private and co-regulatory) emerge or dissolve; when do they succeed or fail (in terms of legitimacy, effectiveness, quality and enforcement)?
- Is their limited legitimacy related to the lack of constitutional foundations? Does constitutional pluralism provide an adequate response? Which institutional framework and governance design are required to ensure compliance with rule of law and respect of fundamental rights?
- Can accountability of TPRER improve by introducing new forms of negotiated rule-making among private stakeholders and how can impact assessment add to this? Is judicial review needed and should it be provided at national or supranational level?
The selected domains are: