La responsabilità dei regolatori privati. Tra mercati finanziari e servizi professionali

Fabrizio Cafaggi

Mercato Concorrenza Regole, 2006, issue 1, 9-60

Abstract: The changes of the European regulatory space propose new questions concerning the identity and the liability of regulators. The increasing use of self-regulation, co-regulation and delegated self-regulation in different fields have empowered private regulators. They have been playing an increasing strategic role in defining the features of market regulation and integration at European and national level. To ensure effectiveness and accountability of these regulatory strategies a European coordinated regime of conflict of interest and liability becomes crucial. This essay focuses on liability of private regulators for (1) failure to regulate or (2) failure to control regulatees' compliance and for defective regulation and control. A set of principles concerning liability of private regulators should be tailored, paying attention to field specificity, and in this essay the main example will be the regulation of financial market. This analysis suggests that there should be a significant difference between liability regimes concerning pure private regulators and those related to private regulators acting within a coordinated framework of co-regulation and delegated self-regulation. Furthermore, it is claimed that a stronger correlation between models of regulation and models of liability is needed while today's national legal systems mainly associate liability regimes to the organizational model of the private regulator. The design of liability regimes for private regulator should combine the regulatory model and the governance structure so as to guarantee compliance of regulatees and accountability towards third parties. The article concludes with a research agenda concerning the blurring relationship between standard setting and monitoring and its influence on the liability aspects.

Date: 2006
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