This paper discusses the position of private actors as norm-setters in European private law. Focusing on the function of self-regulation as a source of law in European private law, at least two aspects stand out. First, self-regulation escapes the ‘normal’ framework of democratic legitimacy and accountability of lawmakers that applies to state based lawmaking. Second, looking at the substantive side of lawmaking, it is not immediately clear that self-regulation can ensure that fundamental aspects of the regulation of private law relationships in Europe are met, such as legal certainty or consumer protection. The fragmentation of rules across levels of regulation leads to legal uncertainty. Further, consumer protection is under pressure when it is taken outside the reach of formal legislation. This paper focuses on the second problem, the proliferation of lawmaking actors, which creates legal pluralism in European private law.
Mak, Vanessa, Private Actors as Norm-Setters. On New Legal Pluralism in European Regulatory Private Law and How to Manage It (February 18, 2015). Tilburg Private Law Working Paper Series No 02/2015.