Richard North, 11/04/2015  

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Boiling Frog has done another of his telecom posts - a long, complex piece which continues the analysis of the regulatory environment. In due course, this will add another chapter to Flexcit, as dealing with the "digital market" will be an important element of the UK's exit settlement.

What comes over from an exploration of the issues is the extraordinarily complex structure of that regulatory environment, which encompasses national, EU and global regulation.

At the top of the global heap is the International Telecommunication Union, but this itself has spawned and entirely new type of regulatory organisation, the World Standards Co-operation Alliance, established in 2001.

This comprises the International Electrotechnical Commission (IEC), the International Organisation for Standardisation (ISO) and the ITU. Its objective is "to strengthen and advance the voluntary consensus-based international standards systems of IEC, ISO and ITU", and sets a new level of global governance.

What stands out as well is that the ISO isn't even a government body or a treaty organisation. It is a limited company which has no official status as a law-maker. Nevertheless, this is one of a growing number of bodies producing transnational private regulation, which is explained in more detail here.

Transnational private regulation (TPR) is described as a "growing phenomenon", contributing to the regulation of existing markets. In the jargon which so characterises this subject, we are also told that it "presents new characteristics departing from more conventional forms of domestic self-regulation". It reflects a transfer of regulatory power from the domestic to the transnational and from the public to the private sphere with significant distributional consequences.

Such transfers, we then learn, "modify but do not necessarily reduce the role of States especially in relation to standards’ implementation and enforcement".

Early examples include the Forestry Stewardship Council and the Marine Stewardship Council, and things like the ISEAL Alliance, but they also take in the Internet Corporation for Assigned Names and Numbers (ICANN) and the World Wide Web consortium (W3C).

Some may think this is innocuous, but it further blurs the lines of responsibility between governments and non-governmental organisations, and confuses the already complex system of law-making and regulation, so complex that it now almost completely defies description.

The papers to which I have linked give some insight into these organisations, but apart from anything else, they call into question some of the simplistic ideas about deregulation. A driver of TPR is harmonisation of standards, in particular at the regional level, when public regulation presents significant national variations.

Thus "private actors" are cooperating to produce their own rules which, in many instances, are being built into global, regional and then national legislation. Law is thus is not only becoming globalised but privatised – and most people don't even begin to understand what is happening. The EU, it would seem, is only one of our problems.

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