Neither 'public' nor 'private', 'national' nor 'international': transnational corporate governance from a legal pluralist perspective

The following paper is part of a multi-year research project that investigates the emergence of a transnational corporate governance regime as a key example of the transformation of state-based regulation. This example received an extensive treatment in the context of a monographical study co-authored with Gralf-Peter Calliess (University of Bremen, and Director, Collaborative Research Centre 597 'Transformation of the State', Program on 'Legal Certainty on Global Markets'). The monograph was published in May 2010 with Hart Publishing under the title: Rough Consensus and Running Code: A Theory of Transnational Private Law. The growing significance of expert committees mandated or self-empowered to draft binding norms for market participants in a wide range of fields illustrates the decentring of norm creation and rule-making in the 'post-regulatory state' of the early 21st century. The paper also contributes to a larger research project on transnational private regulation, carried out under the auspices of Hague Institute for the Internationalisation of Law [HiiL] at University College Dublin, the European University Institute and Tilburg University. It addresses the regulatory challenges arising from a fast-growing body of norms produced by non-state actors in the transnational arena. Focusing on the example of corporate governance codes through a legal pluralist lens, the paper investigates the arguments that qualify corporate governance codes as either 'soft' law or as non-law and rejects this categorization with reference to the wide-ranging evidence of new forms of regulatory governance both within and outside of the nation-state. The creation of corporate governance codes is seen as example of indirect regulation in politically sensible regulatory areas, where state law makers engage in forms of collaborative norm creation for example in the form of private code drafting and subsequent public endorsement. In the case of the German corporate governance code, however, the drafting of the Code occurred in a non-exclusively private sphere, which raises important questions as to the adequacy of the public-private distinction with regard to the assessment of the existence or the lack of legitimacy of contemporary norm-making processes. This paper was first presented at the Inaugural International Programme Conference of the HiiL Project at University College Dublin on 16 June 2010.