Much discussion of law and e-commerce focuses on the extent to which e-commerce and the Internet weaken sovereign states’ effective control. Recently, in e-commerce, there has been a trend towards “hybrid institutions” which blend public oversight and private enforcement in the international arena. Do these institutions reflect the weakening of state legal orders, and the need of states to co-opt the “outlaws” in order to claw back some degree of control? Or alternatively, do hybrid institutions reflect the need of states to find interfaces between their very different systems of legal ordering when these systems are brought into conflict as a result of the expansion of e-commerce? In this article, I seek to evaluate these different accounts of hybrid institutions with regard to the EU-US Safe Harbor arrangement. I provide a detailed account of the Safe Harbor and its enforcement mechanisms. I show how Safe Harbor more closely reflects an interface solution than a weakening of the law per se. Safe Harbor presents a novel interface between two different legal systems, but relies extensively on the legal systems both of the EU and US, in order to lend it both meaning and back-up.
Henry Farrell (2002), “Hybrid Institutions and the Law: Interface Solutions or Outlaw Arrangements?,” Zeitschrift für Rechtssoziologie, 23, 1:25-40.