INTRODUCTION

Among the novel ways of creating ‘regulatory content’ that are currently emerging without or with only limited direct involvement of state legislation, self-regulation plays the lead. In times of globalisation and privatisation, self- regulation has in fact become so important and omnipresent that our age has already been qualified as an ‘era of self-regulation’’. Concurrently, self- regulation constitutes an established mode of rule-making and has ancient origins, for example with respect to the free professions. Its long tradition and widespread use, when taken together, make self-regulation an incredibly broad and challenging field for legal scholarship. Both in the realm of private and (even more so) of public law, the phenomenon of self-regulation has attracted great interest, and many valuable contributions have already been made.

From a private law perspective, and more specifically from the perspective of private autonomy, the various forms of self-regulation pose substantial challenges to the existing conceptual and legal framework, mainly because of their inherent ambiguities. On the one hand, self-regulation by private individuals is based on their private autonomy, but the high-handedness (Selbstherrlichkeit) that is immanent in the concept of private autonomy does not fit well with the responsibility for norms that regulation necessarily implies (see section 2). On the other hand, self-regulation never occurs entirely ‘without the state’. As a consequence, the concept of self-regulation is also ambiguous due to the variety of different forms of self-regulation, and in particular due the variances of state involvement. Nonetheless it is crucial to distinguish two different subcategories, in particular because the interpretation of rules follows different patterns depending on whether they are induced by the state or not. Drawing the line between these two subcategories turns out to be extremely difficult, however, in particular because of the plurality of distinctive criteria that apply (see section 3). The emerging field of ‘good’ companies’ certification provides illustrative examples of these different ambiguities of self-regulation. A comparative overview of this field shows fundamentally different regulatory approaches which can be neatly arranged according to their degree of state involvement (see section 4). From a conceptual point of view, ‘good’ companies’ certification not only illustrates the cleavages between the different categories of self-regulation but also demonstrates the different arguments that speak both in favour of and against self-regulation. By this means, the entire ambiguity of self- regulation may be brought to light.