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"Transnational private regulation" [2019] ELECD 576; in Mahler, Tobias (ed), "Generic Top-Level Domains" (Edward Elgar Publishing, 2019) 72

Book Title: Generic Top-Level Domains

Editor(s): Mahler, Tobias

Publisher: Edward Elgar Publishing

Section: Chapter 5

Section Title: Transnational private regulation

Number of pages: 23

Abstract/Description:

Chapter 5 assesses ICANN’s function and limitations as a transnational regulator. Although ICANN’s framework could be called ‘transnational law’, this book conceptualizes ICANN’s binding rules as ‘transnational private regulation’. The rules are private, have a transnational effect and effectively regulate actors in the DNS. Because the dominant perspective in the literature is based on ‘governance’ rather than ‘regulation’, this chapter discusses these two concepts and provides arguments for the claim that ICANN’s rules should count as ‘regulation’. This chapter also highlights the function of contracts as the key mechanism ICANN employs for enforcing its regulation. ICANN effectively regulates ‘by contract’. It controls a chain of contracts with several actors in the domain name industry; thus, it can insert rules into these contracts and enforce them at a global level, including in the interest of third parties like Internet users.