Fabrizio Cafaggi - Academia.edu (original) (raw)

Papers by Fabrizio Cafaggi

Social Science Research Network, 2006

The European regulatory space is changing. The role of private regulation is increasing more as a... more The European regulatory space is changing. The role of private regulation is increasing more as a complement of public regulation than as an alternative to it. The emergence of new regulatory models coordinating public and private regulators has characterized the last decade. They reflect the crisis of the regulatory state but at the same time pose serious questions to the legitimacy and accountability of private regulators. The paper distinguishes five different models: public regulation, co-regulation, delegated private regulation, ex post recognized private regulation and private regulation. Within these models it concentrates on the differences between pure private regulation and modes through which public and private actors coordinate to perform regulatory activity. The paper addresses the questions posed by these changes in terms of rule-making and monitoring. It focuses particularly on three dimensions: the alternative between monopolistic private regulators and plurality of regulators, the conflict of interest and the liability regimes. It underlines on the one hand the opportunity for new rules and on the other hand the necessity to distinguish between private regulators operating in coordination with public institutions and those whose regulatory power is embedded in freedom of contract. These two typologies present different issues. Different modes of control should be used to correlate the new powers with new liabilities. The legitimacy of private regulators and their contribution to a democratic regulatory regime will depend on the ability of legislators and private parties to device adequate European and transnational rules and institutions. This is the main challenge ahead.

Chapters, 2012

The Handbook focuses particularly on how the development of EU law negotiates the tension between... more The Handbook focuses particularly on how the development of EU law negotiates the tension between market integration, national sovereignty and political democracy. The book begins with chapters examining constitutional issues, while further chapters address the establishment of a single market. The volume also addresses sovereign debt problems by providing a detailed analysis of the architecture of the EU’s monetary institutions, its monetary policy and their implications.

Social Science Research Network, 2006

newgov-N-07-02.pdf. © Each EUROGOV Paper and its format and content (texts, images, data etc.) ar... more newgov-N-07-02.pdf. © Each EUROGOV Paper and its format and content (texts, images, data etc.) are protected by legislation on Intellectual Property, and may not be used, reproduced, distributed, modified, publicly disclosed, conveyed or transformed in any other way without the explicit permission of the Author(s). The common scientific citation is exempted from these property rights.

Social Science Research Network, 2007

This text may be downloaded for personal research purposes only. Any additional reproduction for ... more This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper or other series, the year, and the publisher. The author(s)/editor(s) should inform the Law Department of the EUI if the paper is to be published elsewhere, and should also assume responsibility for any consequent obligation(s).

Intersentia eBooks, 2009

The united nations set a milestone in the development of consumer law when it. Legal implications... more The united nations set a milestone in the development of consumer law when it. Legal implications and new frontiers. As the nation's consumer protection agency, the federal trade commission has a broad mandate to protect consumers from fraud and deception in the . 2.2 is “friendly fire” in the brain provoking alzheimer's disease? 2.3 could alzheimer's be a reaction to infection? However, when implemented correctly, they will help digital financial services businesses achieve their strategy goals. As the industry is growing, many new . The united nations guidelines for consumer protection: Legal implications and new frontiers. For competition policy, consumer affairs and fraud control. Attorney general william tong and consumer protection. Customer service that began after frontier acquired southern new england telephone . About · blog · jobs · in the news · our work · clean air and water · conservation · consumer protection · energy · global warming · good government . New frontiers of consumer protection. Collective redress has gained momentum in europe and north america. Legal reforms are driven by different institutional .

Regulation & Governance, Sep 24, 2014

This paper develops the normative concept of "regulatory capabilities", which asserts that nobody... more This paper develops the normative concept of "regulatory capabilities", which asserts that nobody-individuals, groups or entities-should be subjected to a regulatory regime-public or private, domestic or transnational-without some freedom to choose. Choice in this context means the ability to accept or reject a regulatory regime imposed by others or to create an alternative one. A mere formal option is not sufficient; the freedom to choose requires real alternatives. The concept of regulatory capabilities has particular traction in the transnational context where private, hybrid public-private and public actors compete for influence, shape domestic regulation and in doing so limit the scope for democratic self-governance. It also helps illuminate the distributional effects of domestic regulation. As such, "regulatory capabilities" is a contribution to the general debate on the normative foundation of regulation and governance. 1 We are grateful to the Scuola Superiore della Pubblica Amministrazione (SSPA) for funding this project, to participants at the workshop on "Dividing the Transnational Regulatory Space" held at Columbia Law School in September 2011 and to participants at the conference on "The Distributional Effects of Transnational Private Regulation" in Rome in May of 2012. Thanks also to all who have offered comments and suggestions at seminars and workshops at Harvard Law School, Columbia Law School and University of Pennsylvania Law School, and to four anonymous referees. Special thanks to Agnieszka Janczuk-Gorywoda and Casey Quinn for background research, tireless commenting, questioning and editing. All remaining errors are ours.

Social Science Research Network, 2018

In this paper, we examine consultation procedures in the light of behavioral sciences. We feature... more In this paper, we examine consultation procedures in the light of behavioral sciences. We feature consultation as a dialogue between the administration and the participants in the form of a public good game with one or more tournaments. Our focus is on the architecture of the dialogue and its design. We propose three models characterized by varying degrees of the interaction among participants, and between participants and the administration, occurring during the consultation process. We suggest that mapping stakeholders according to homogeneity of interest influences the structure and affects the dialogue taking place during the consultation process. We then examine the levels of efforts parties would engage in and their cognitive capabilities, defining models that maximize efforts and adjust for different cognitive stakeholders’ capabilities, advocating an empirical approach. The paper concludes with policy recommendations on how to improve the current consultation design deployed at EU and national level.

Edward Elgar Publishing eBooks, May 26, 2017

Social Science Research Network, 2016

Transnational private regulation (TPR) consists of regulatory regimes that are enacted by private... more Transnational private regulation (TPR) consists of regulatory regimes that are enacted by private actors with or without the collaboration of states and international organizations. Within TPR, there are various organizational ‘densities’. In some cases, there are multiple regimes, while in others a monopoly or an oligopoly emerges. The reasons for these differences are partly historical and partly dependent on the existence and the effectiveness of public international organizations that operate in the same sector. While monopoly or oligopoly may undermine the legitimacy, efficiency and effectiveness of the regulatory process, the multiplicity of regulatory regimes also poses questions of institutional design. A plurality of regimes frequently reflects divergent interests, and gives rise to conflicting interactions. A multiplicity of regimes does not necessary translate into regulatory pluralism. The multiplicity of regimes can generate complexity, causing search and management costs to rise without necessarily expanding the choices available to regulated entities. It can increase conflicts and inefficient regulatory competition. Often, regulated entities and beneficiaries do not benefit from this proliferation. To address the shortcomings of this complexity and fragmentation in the private sphere, various institutional responses have been offered. This contribution focuses on the organization of the transnational regulatory space and the institutional responses to the proliferation of private schemes at a sectoral level. It is argued that many responses concur. One, which has been widely articulated, is orchestration by public organizations; another, which has been less investigated, is the emergence of private meta-regulators to coordinate the activities and governance of individual regulators, increase legitimacy and improve effectiveness. This growing phenomenon is still sector-specific, but it is likely to develop across sectors in the near future, especially in relation to the reporting and assessment tools for the evaluation of the effectiveness of individual regulatory regimes. Relying on current examples, the policy implications of the growth of meta-private regulation, its legitimacy and its effectiveness are drawn.

Raccoglie vari contributi sul tema del 'finanziamento' come istituto del diritto commerci... more Raccoglie vari contributi sul tema del 'finanziamento' come istituto del diritto commerciale legato alla impresa commerciale, soprattutto cercando di individuare gli aspetti innovativi di questo rapporto. Specificamente studia il rapporto 'banca-impresa', sia nel senso di dare valore anche ad altre variabili di comportamento delle imprese (es. la policy dell'impresa quanto alle modalità di pagamento) sia nel senso di definire diversamente il valore dell'impresa etc.. Importanza viene data anche al rapporto con i vari assetti proprietari. La trattazione è tecnica, analitica e ricca di spunti innnovativi.-- FABRIZIO CAFAGGI, FRANCESCO VELLA Introduzione -- FABRIZIO CAFAGGI, CHIARA FERRARI, PAOLA IAMICELI Modelli di finanziamento per le reti di imprese: problemi e prospettive -- CONCETTA BRESCIA MORRA Il finanziamento delle attività economiche: profili evolutivi -- PAOLA MANES Destinazione patrimoniale e trust in funzione di garanzia per finanziamenti all’impresa -- MARCO PALMIERI Strumenti finanziari per le PMI italiane e condizioni contrattuali al prestito -- FLAVIO BAZZANA Covenants e collaterale nei finanziamenti bancari alle PMI -- MAURIZIO RAGNO Le garanzie nei rapporti banca-impresa: quali prospettive dopo “Basilea 2”? -- MAURIZIO SCIUTO Organizzazione e merito di credito delle società a responsabilità limitata alla luce di “Basilea 2” -- GUSTAVO OLIVIERI Conferimenti “assicurati” e capitale di rischio nelle società a responsabilità limitat

Edward Elgar Publishing eBooks, Apr 28, 2011

Edward Elgar Publishing eBooks, May 26, 2017

Increasingly, European companies in a variety of business sectors as well as professional groups ... more Increasingly, European companies in a variety of business sectors as well as professional groups are taking self-regulatory initiatives as a means of gaining competitive and protective leverage in a "meta-regulatory" environment. While these initiatives have obvious legal and economic advantages for the entities and principals who take them, the phenomenon of self-regulation raises profound issues for competition law and even for constitutional law. Although deeply grounded in legal theory, such issues have profound and growing significance for practitioners in many fields of law. In this thought-provoking book, thirteen outstanding authorities from various EU jurisdictions examine the legal basis of self-regulation and its function in the process of European legal integration, with particular reference to European private law. The authors offer in-depth analysis of self-regulation in the context of current economic and political conditions in Europe, and investigate the effects of self-regulation on such societal factors as the following: the European social dialogue, the professions, consumer protection, the media, and corporate social responsibility. This book is among the first to raise these vital issues, and the first to examine self-regulation in depth with reference to specific sectors. The essays identify trends set in motion by self-regulation among major actors, and the authors do not hesitate to offer insightful criticisms and recommendations. For these reasons, this book will be of great value to policymakers and business people, as well as to legal academics, for years to come, as self-regulation assumes ever more salience in our economic and social fabric.

Social Science Research Network, Oct 1, 2012

Private governance is currently being evoked as a viable solution to many public policy goals. Ho... more Private governance is currently being evoked as a viable solution to many public policy goals. However, in some circumstances it has shown to produce more harm than good, and even disastrous consequences as in the case of the financial crisis that is raging in most advanced economies. Although the current track record of private regulatory schemes is mixed, policy guidance documents around the world still require that policy-makers give priority to self-and co-regulation, with little or no additional guidance being given to policymakers to devise when, and under what circumstances, these solutions can prove viable from a public policy perspective. With an array of examples from several policy fields, this paper approaches regulation as a public-private collaborative form and attempts to identify possible policy tools to be applied by public policy-makers to efficiently and effectively approach private governance as a solution, rather than a problem. We propose a six-step theoretical framework and argue that IA techniques should: i) define an integrated framework including both the possibility that private regulation can be used as an alternative or as a complement to public legislation; ii) involve private parties in public IAs in order to define the best strategy or strategies that would ensure achievement of the regulatory objectives; and iii) contemplate the deployment of indicators related to governance and activities of the regulators and their ability to coordinate and solve disputes with other regulators.

Social Science Research Network, 2014

Transnational private regulation (TPR) is a growing phenomenon. It creates new markets and dissol... more Transnational private regulation (TPR) is a growing phenomenon. It creates new markets and dissolves old ones. TPR contributes to the regulation of existing markets, it increases the protection of fundamental rights and it enables or disables communities to participate in global rule making. The standing of TPR and its role regulatory control continues to grow. TPR 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. The Report addresses the development of transnational private regulation in three macro-areas: financial markets, consumer protection and fundamental rights. It encompasses 11 case studies focusing on four dimensions: legitimacy, quality, effectiveness and enforcement.

Social Science Research Network, 2006

The European regulatory space is changing. The role of private regulation is increasing more as a... more The European regulatory space is changing. The role of private regulation is increasing more as a complement of public regulation than as an alternative to it. The emergence of new regulatory models coordinating public and private regulators has characterized the last decade. They reflect the crisis of the regulatory state but at the same time pose serious questions to the legitimacy and accountability of private regulators. The paper distinguishes five different models: public regulation, co-regulation, delegated private regulation, ex post recognized private regulation and private regulation. Within these models it concentrates on the differences between pure private regulation and modes through which public and private actors coordinate to perform regulatory activity. The paper addresses the questions posed by these changes in terms of rule-making and monitoring. It focuses particularly on three dimensions: the alternative between monopolistic private regulators and plurality of regulators, the conflict of interest and the liability regimes. It underlines on the one hand the opportunity for new rules and on the other hand the necessity to distinguish between private regulators operating in coordination with public institutions and those whose regulatory power is embedded in freedom of contract. These two typologies present different issues. Different modes of control should be used to correlate the new powers with new liabilities. The legitimacy of private regulators and their contribution to a democratic regulatory regime will depend on the ability of legislators and private parties to device adequate European and transnational rules and institutions. This is the main challenge ahead.

Chapters, 2012

The Handbook focuses particularly on how the development of EU law negotiates the tension between... more The Handbook focuses particularly on how the development of EU law negotiates the tension between market integration, national sovereignty and political democracy. The book begins with chapters examining constitutional issues, while further chapters address the establishment of a single market. The volume also addresses sovereign debt problems by providing a detailed analysis of the architecture of the EU’s monetary institutions, its monetary policy and their implications.

Social Science Research Network, 2006

newgov-N-07-02.pdf. © Each EUROGOV Paper and its format and content (texts, images, data etc.) ar... more newgov-N-07-02.pdf. © Each EUROGOV Paper and its format and content (texts, images, data etc.) are protected by legislation on Intellectual Property, and may not be used, reproduced, distributed, modified, publicly disclosed, conveyed or transformed in any other way without the explicit permission of the Author(s). The common scientific citation is exempted from these property rights.

Social Science Research Network, 2007

This text may be downloaded for personal research purposes only. Any additional reproduction for ... more This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper or other series, the year, and the publisher. The author(s)/editor(s) should inform the Law Department of the EUI if the paper is to be published elsewhere, and should also assume responsibility for any consequent obligation(s).

Intersentia eBooks, 2009

The united nations set a milestone in the development of consumer law when it. Legal implications... more The united nations set a milestone in the development of consumer law when it. Legal implications and new frontiers. As the nation's consumer protection agency, the federal trade commission has a broad mandate to protect consumers from fraud and deception in the . 2.2 is “friendly fire” in the brain provoking alzheimer's disease? 2.3 could alzheimer's be a reaction to infection? However, when implemented correctly, they will help digital financial services businesses achieve their strategy goals. As the industry is growing, many new . The united nations guidelines for consumer protection: Legal implications and new frontiers. For competition policy, consumer affairs and fraud control. Attorney general william tong and consumer protection. Customer service that began after frontier acquired southern new england telephone . About · blog · jobs · in the news · our work · clean air and water · conservation · consumer protection · energy · global warming · good government . New frontiers of consumer protection. Collective redress has gained momentum in europe and north america. Legal reforms are driven by different institutional .

Regulation & Governance, Sep 24, 2014

This paper develops the normative concept of "regulatory capabilities", which asserts that nobody... more This paper develops the normative concept of "regulatory capabilities", which asserts that nobody-individuals, groups or entities-should be subjected to a regulatory regime-public or private, domestic or transnational-without some freedom to choose. Choice in this context means the ability to accept or reject a regulatory regime imposed by others or to create an alternative one. A mere formal option is not sufficient; the freedom to choose requires real alternatives. The concept of regulatory capabilities has particular traction in the transnational context where private, hybrid public-private and public actors compete for influence, shape domestic regulation and in doing so limit the scope for democratic self-governance. It also helps illuminate the distributional effects of domestic regulation. As such, "regulatory capabilities" is a contribution to the general debate on the normative foundation of regulation and governance. 1 We are grateful to the Scuola Superiore della Pubblica Amministrazione (SSPA) for funding this project, to participants at the workshop on "Dividing the Transnational Regulatory Space" held at Columbia Law School in September 2011 and to participants at the conference on "The Distributional Effects of Transnational Private Regulation" in Rome in May of 2012. Thanks also to all who have offered comments and suggestions at seminars and workshops at Harvard Law School, Columbia Law School and University of Pennsylvania Law School, and to four anonymous referees. Special thanks to Agnieszka Janczuk-Gorywoda and Casey Quinn for background research, tireless commenting, questioning and editing. All remaining errors are ours.

Social Science Research Network, 2018

In this paper, we examine consultation procedures in the light of behavioral sciences. We feature... more In this paper, we examine consultation procedures in the light of behavioral sciences. We feature consultation as a dialogue between the administration and the participants in the form of a public good game with one or more tournaments. Our focus is on the architecture of the dialogue and its design. We propose three models characterized by varying degrees of the interaction among participants, and between participants and the administration, occurring during the consultation process. We suggest that mapping stakeholders according to homogeneity of interest influences the structure and affects the dialogue taking place during the consultation process. We then examine the levels of efforts parties would engage in and their cognitive capabilities, defining models that maximize efforts and adjust for different cognitive stakeholders’ capabilities, advocating an empirical approach. The paper concludes with policy recommendations on how to improve the current consultation design deployed at EU and national level.

Edward Elgar Publishing eBooks, May 26, 2017

Social Science Research Network, 2016

Transnational private regulation (TPR) consists of regulatory regimes that are enacted by private... more Transnational private regulation (TPR) consists of regulatory regimes that are enacted by private actors with or without the collaboration of states and international organizations. Within TPR, there are various organizational ‘densities’. In some cases, there are multiple regimes, while in others a monopoly or an oligopoly emerges. The reasons for these differences are partly historical and partly dependent on the existence and the effectiveness of public international organizations that operate in the same sector. While monopoly or oligopoly may undermine the legitimacy, efficiency and effectiveness of the regulatory process, the multiplicity of regulatory regimes also poses questions of institutional design. A plurality of regimes frequently reflects divergent interests, and gives rise to conflicting interactions. A multiplicity of regimes does not necessary translate into regulatory pluralism. The multiplicity of regimes can generate complexity, causing search and management costs to rise without necessarily expanding the choices available to regulated entities. It can increase conflicts and inefficient regulatory competition. Often, regulated entities and beneficiaries do not benefit from this proliferation. To address the shortcomings of this complexity and fragmentation in the private sphere, various institutional responses have been offered. This contribution focuses on the organization of the transnational regulatory space and the institutional responses to the proliferation of private schemes at a sectoral level. It is argued that many responses concur. One, which has been widely articulated, is orchestration by public organizations; another, which has been less investigated, is the emergence of private meta-regulators to coordinate the activities and governance of individual regulators, increase legitimacy and improve effectiveness. This growing phenomenon is still sector-specific, but it is likely to develop across sectors in the near future, especially in relation to the reporting and assessment tools for the evaluation of the effectiveness of individual regulatory regimes. Relying on current examples, the policy implications of the growth of meta-private regulation, its legitimacy and its effectiveness are drawn.

Raccoglie vari contributi sul tema del 'finanziamento' come istituto del diritto commerci... more Raccoglie vari contributi sul tema del 'finanziamento' come istituto del diritto commerciale legato alla impresa commerciale, soprattutto cercando di individuare gli aspetti innovativi di questo rapporto. Specificamente studia il rapporto 'banca-impresa', sia nel senso di dare valore anche ad altre variabili di comportamento delle imprese (es. la policy dell'impresa quanto alle modalità di pagamento) sia nel senso di definire diversamente il valore dell'impresa etc.. Importanza viene data anche al rapporto con i vari assetti proprietari. La trattazione è tecnica, analitica e ricca di spunti innnovativi.-- FABRIZIO CAFAGGI, FRANCESCO VELLA Introduzione -- FABRIZIO CAFAGGI, CHIARA FERRARI, PAOLA IAMICELI Modelli di finanziamento per le reti di imprese: problemi e prospettive -- CONCETTA BRESCIA MORRA Il finanziamento delle attività economiche: profili evolutivi -- PAOLA MANES Destinazione patrimoniale e trust in funzione di garanzia per finanziamenti all’impresa -- MARCO PALMIERI Strumenti finanziari per le PMI italiane e condizioni contrattuali al prestito -- FLAVIO BAZZANA Covenants e collaterale nei finanziamenti bancari alle PMI -- MAURIZIO RAGNO Le garanzie nei rapporti banca-impresa: quali prospettive dopo “Basilea 2”? -- MAURIZIO SCIUTO Organizzazione e merito di credito delle società a responsabilità limitata alla luce di “Basilea 2” -- GUSTAVO OLIVIERI Conferimenti “assicurati” e capitale di rischio nelle società a responsabilità limitat

Edward Elgar Publishing eBooks, Apr 28, 2011

Edward Elgar Publishing eBooks, May 26, 2017

Increasingly, European companies in a variety of business sectors as well as professional groups ... more Increasingly, European companies in a variety of business sectors as well as professional groups are taking self-regulatory initiatives as a means of gaining competitive and protective leverage in a "meta-regulatory" environment. While these initiatives have obvious legal and economic advantages for the entities and principals who take them, the phenomenon of self-regulation raises profound issues for competition law and even for constitutional law. Although deeply grounded in legal theory, such issues have profound and growing significance for practitioners in many fields of law. In this thought-provoking book, thirteen outstanding authorities from various EU jurisdictions examine the legal basis of self-regulation and its function in the process of European legal integration, with particular reference to European private law. The authors offer in-depth analysis of self-regulation in the context of current economic and political conditions in Europe, and investigate the effects of self-regulation on such societal factors as the following: the European social dialogue, the professions, consumer protection, the media, and corporate social responsibility. This book is among the first to raise these vital issues, and the first to examine self-regulation in depth with reference to specific sectors. The essays identify trends set in motion by self-regulation among major actors, and the authors do not hesitate to offer insightful criticisms and recommendations. For these reasons, this book will be of great value to policymakers and business people, as well as to legal academics, for years to come, as self-regulation assumes ever more salience in our economic and social fabric.

Social Science Research Network, Oct 1, 2012

Private governance is currently being evoked as a viable solution to many public policy goals. Ho... more Private governance is currently being evoked as a viable solution to many public policy goals. However, in some circumstances it has shown to produce more harm than good, and even disastrous consequences as in the case of the financial crisis that is raging in most advanced economies. Although the current track record of private regulatory schemes is mixed, policy guidance documents around the world still require that policy-makers give priority to self-and co-regulation, with little or no additional guidance being given to policymakers to devise when, and under what circumstances, these solutions can prove viable from a public policy perspective. With an array of examples from several policy fields, this paper approaches regulation as a public-private collaborative form and attempts to identify possible policy tools to be applied by public policy-makers to efficiently and effectively approach private governance as a solution, rather than a problem. We propose a six-step theoretical framework and argue that IA techniques should: i) define an integrated framework including both the possibility that private regulation can be used as an alternative or as a complement to public legislation; ii) involve private parties in public IAs in order to define the best strategy or strategies that would ensure achievement of the regulatory objectives; and iii) contemplate the deployment of indicators related to governance and activities of the regulators and their ability to coordinate and solve disputes with other regulators.

Social Science Research Network, 2014

Transnational private regulation (TPR) is a growing phenomenon. It creates new markets and dissol... more Transnational private regulation (TPR) is a growing phenomenon. It creates new markets and dissolves old ones. TPR contributes to the regulation of existing markets, it increases the protection of fundamental rights and it enables or disables communities to participate in global rule making. The standing of TPR and its role regulatory control continues to grow. TPR 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. The Report addresses the development of transnational private regulation in three macro-areas: financial markets, consumer protection and fundamental rights. It encompasses 11 case studies focusing on four dimensions: legitimacy, quality, effectiveness and enforcement.