Gorillas in the closet? Public and private actors in the enforcement of transnational private regulation

This paper examines to what extent the background presence of state regulatory capacity – at times referred to as the “regulatory gorilla in the closet” – is a necessary precondition for the effective enforcement of transnational private regulation. By drawing on regulatory regimes in the areas of advertising and food safety, it identifies conditions under which (the potential of) public regulatory intervention can bolster the capacity of private actors to enforce transnational private regulation. These involve the overlap between norms, objectives, and interests of public and private regulation; the institutional design of regulatory enforcement; compliance with due process standards; and information management and data sharing. The paper argues that while public intervention remains important for the effective enforcement of transnational private regulation, governmental actors – both national and international – should create the necessary preconditions to strengthen private regulatory enforcement, as it can also enhance their own regulatory capacity, in particular, in transnational contexts.     

Disaggregating public-private governance interactions: European Union interventions in transnational private sustainability governance

Transnational private sustainability governance, such as eco-certification, does not operate in a regulatory or jurisdictional vacuum. A public authority may intervene in private governance for various reasons, including to improve private governance's efficient functioning or to assert public regulatory primacy. This article argues that to properly understand the nature of public-private governance interactions—whether more competitive or complementary—we need to disaggregate a public authority's intervention. The article distinguishes between four features of private governance in which a public authority can intervene: standard setting, procedural aspects, supply chain signaling, and compliance incentives. Using the cases of the European Union's policies on organic agriculture and biofuels production, the article shows that public-private governance interaction dynamics vary across these private governance features as well as over time. Furthermore, the analysis highlights the importance of active lobbying by private governance actors in influencing these dynamics and the resulting policy outputs.     

Can private governance boost public policy? Insights from public–private governance interactions in the fisheries and electricity sectors

Based on the inductive analysis of two parallel cases of private environmental governance – private, market-driven fisheries governance and private, market-driven governance for electricity decarbonization – this paper uncovers a trigger for positive public policy spillovers from private environmental governance. It identifies circumstances that prompt groups of business actors working as private regulators to also take on a role as public policy advocates and supporters, revealing a potential for private governance initiatives that are targeted at a particular environmental problem to serve as a bolster for the public regulatory governance of that problem as well. Both private governance cases at the basis of this analysis feature groups of business actors seeking to meet voluntary sustainability goals through the tools of private governance (specifically, through flexing buyer power and private authority in an effort to reform environmentally problematic practices among particular groups of suppliers). In both cases, the business's inability to attain private sustainability goals though private governance means alone has given rise to business demand for facilitative public environmental policy and regulation. The analysis presented in this paper thus points to the occurrence of a particular and intriguing pattern of complementarity between private authority and public policy – one where public policy is called on to fill gaps left by private environmental governance and authority. And it identifies key conditions for such private-governance-driven recentering of public policy to occur, namely the presence of private supply chain greening goals and commitments that are economically, reputationally, and/or competitively critical for businesses to attain, combined with shortfalls in the capacity of businesses' private authority to bring about such attainment. The two case analysis further suggests the importance of ENGOs in identifying and activating some of the opportunities for leveraging shortfalls in private environmental governance to the advantage of public environmental policy and regulation.     

Private authority and public policy interactions in global context: Governance spheres for problem solving

Private organizations play a growing role in governing global issues alongside traditional public actors such as states, international organizations, and subnational governments. What do we know about how private authority and public policy interact? What are the implications of answering this question for understanding support for, and effects of, policy development generally? The purpose of this article is to reflect on these questions by introducing, and reviewing, a special issue that challenges explicit claims, and implicit methodologies, that treat private and public governance realms as distinct and/or static. We do so by advancing a theoretical and conceptual framework with which to explore how the contributions to this special issue enhance an understanding about governance interactions across a range of empirical, sectoral, and regional domains. We specifically introduce the concept of governance spheres to capture the proliferation of issue domains denoted by highly fluid interactions across public and private governance boundaries.     

Regulatory capabilities: A normative framework for assessing the distributional effects of regulation

This paper develops the normative concept of “regulatory capabilities.” It asserts that nobody – individuals, groups, or entities – should be subjected to a regulatory regime without some freedom to determine its nature. Self‐determination in this context means the ability to accept or reject a regulatory regime imposed by others or to develop viable alternative approaches. We use the term “regulatory capabilities” to capture the importance of enabling conditions for regulatory self‐determination. This is particularly important 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. In short, this paper seeks to contribute to the general debate on the normative foundations of and the requisite conditions for transnational regulation and governance.     

The politics of resonance: Transnational sustainability governance in Argentina

Why do private governance initiatives trigger greater participation in one country than another? This article examines the domestic dimension of transnational regulation through a case study of private sustainability governance in Argentina. Drawing from theories of contentious politics, the argument poses that the resonance of transnational private governance is shaped by the semantic compatibility of “incoming” sustainability programs against national political culture. Analyzing the limited participation of Argentine actors in contemporary sustainability initiatives, the article claims that the validity and relevance of sustainability programs is affected by three dimensions of national political culture accentuated over the last decade: a politicized model of state‐society relations, the low visibility of environmental matters, and a widespread anti‐corporate culture. By examining the ideational fundamentals of the “politics of resonance” in Argentina, the article makes a relevant and original contribution to transnational regulation literature, highlighting the need for theoretical accounts and empirical analyses that address domestic and cultural variables as fundamental pieces in transnational norm diffusion and effectiveness.     

Private Actors and the State: Internationalization and Changing Patterns of Governance

This article investigates the implications of political and economic internationalization on patterns of governance from a statecentric perspective. The actual patterns of governance in internationalized environments can be related to the respective governance capacity of public and private actors, which hinges in turn on the strategic constellation underlying the provision of a public good. The specific strategic constellation varies in three dimensions: the congruence between the scope of the underlying problem and the organizational structures of the related actors, the type of problem, and the institutional context, all of which involve a number of factors. With this concept in mind, we identify four ideal-typed patterns of governance, enabled by different configurations of public and private capacities to formally or factually influence in various ways the social, economic, and political processes by which certain goods are provided.     

A feminist challenge to the gendered politics of the public/private divide: on due diligence,domestic violence,and citizenship

This article examines the feminist appropriation of the legal principle of due diligence to politicize acts of violence at the hands of private actors within the private sphere. This move expanded traditional notions of state responsibility for violence against women under international human rights law. Using frame analysis, we focus on the institutionalization of this feminist understanding of due diligence through its discursive incorporation in international human rights policy documents and its mobilization in cases of domestic violence litigated within the UN and the Inter-American and European human rights systems. Through this discursive framing work and its institutionalization, feminists have challenged the gendered politics of the public/private divide to change the terms on which differently positioned women can engage with the state and global governance institutions. We argue that this change can potentially reconfigure women's state-bounded and transnational citizenship. The implications of due diligence as a political and sociological concept require more careful consideration by citizenship and human rights scholars.     

The Authority–Identity Relation: Symbolic References and Interpretative Authority in Postwar Kosovo

In postwar Kosovo, international and Kosovar political actors claiming authority in the democratization and statebuilding process lacked a long-standing ‘authoritative relation’ with each other and the citizenry. To analyse the structural conditions for the emergence of political authority, the article suggests applying the analytical framework of ‘interpretative authority’, which captures the relational character and simultaneity of authority generation by international and Kosovar actors. Given that Kosovo had unsecured symbolic conditions for authority – no commonly shared symbols of unity for all communities and no commonly agreed interpreter of symbols of unity – political actors were competing intensely for the identity and symbolizations of the ‘new’ Kosovo in their attempts to gain authority in various institutional opportunity structures. The competition over authority and the attempts to denationalize public communications made by the international administration, the United Nations Mission in Kosovo (UNMIK), led to the reimbursement of particularistic symbolic references of Kosovar actors, thereby keeping the unsecured symbolic conditions and the weakness of interpretative political authority in Kosovo stable.     

Cyber insurance and private governance: The enforcement power of markets

In the last half decade, cyber insurance has emerged as a multi-billion-dollar industry with the authority to set and enforce standards of security behavior. Although cybersecurity has become a concern of national policymakers, insurers appear to have supplanted the state to play an influential role in governing some aspects of client behavior. This paper explores private governance by cyber insurance firms and evaluates two competing explanations for its emergence – either that the private sector advanced to set and enforce cybersecurity standards for financial gain, or that the state retreated from its responsibility to regulate and private sector actors filled the gap only as necessary. To find an answer between these explanations, this article develops a single outcome case study of the American cyber insurance industry. Following a theoretical introduction to private governance and its manifestation through insurance, the article examines the insurance process and its application in cybersecurity, the key role of standards, and the mechanism of enforcing those standards. The article concludes by identifying key elements of this market-based enforcement and discussing implications for crafting effective private governance in other domains and public policy.     

The global institutionalization of microcredit

This article explains how microcredit as a policy idea has been institutionalized at the transnational level, and what role strategic actors play in the institutional change and governance of microcredit. Special attention is given to three dominant actors, the Grameen Bank, the World Bank, and SKS Microfinance. To explain the emergence of microcredit as a transnational policy idea this article explores the relations between theories of institutional change and Rosenau's concept of spheres of authority.     

Jurisgenerative role of auditors in transnational labor governance

This article builds on the model of regulatory intermediaries by incorporating insights from the field of legal hermeneutics about the process through which the meaning of a legal rule emerges. It describes how intermediaries can take on a jurisgenerative role in the development of legal rules through their interpretation of legal rules. This role is demonstrated through an analysis of social audits from Chinese and Vietnamese factories involved in the Fair Labor Association (FLA). The analysis illustrates how the integration of fundamental labor rights into the FLA's private Code of Conduct requires auditors to develop new interpretations of the Freedom of Association as a result of uncertainties and contradictions between legal requirements at various levels, as well as with the FLA's own rules. Through this empirical analysis, the article contributes to the literature by identifying regulatory intermediaries’ jurisgenerative capacities when they monitor fundamental labor rights referenced by private governance instruments. It further highlights why legal and regulatory governance scholars need to consider the transformative effects that transnational private labor governance may have on international labor law.     

The instrumental power of transnational private governance: Interest representation and lobbying by private rule‐makers

While scholars have researched transnational private governance for over two decades, we still know little about some of the specific political activities in which private rulemaking schemes engage. This article addresses this topic by bringing together hitherto separate literatures on private governance and interest groups. I argue that examining private governance's instrumental power, and interest representation and lobbying specifically, complements the literature's dominant focus on the structural and discursive power of private governance. The article makes three contributions. First, it conceptualizes private governance schemes as interest organizations by analyzing similarities and differences with traditional interest groups. Second, the article examines instrumental power empirically by assessing the participation of 48 transnational private governance schemes in the European Union's lobby register and variation among private governance schemes in this respect. Finally, the article contributes to developing a new research agenda to continue bridging the gap between the private governance and interest group literatures.     

Public orchestration,social networks,and transnational environmental governance: Lessons from the aviation industry

This article contributes to current debates on the potential and limitations of transnational environmental governance, addressing in particular the issue of how private and public regulation compete and/or reinforce each other – and with what results. One of the most influential approaches to emerge in recent years has been that of “orchestration.” But while recent discussions have focused on a narrow interpretation of orchestration as intermediation, we argue that there is analytical traction in studying orchestration as a combination of directive and facilitative tools. We also argue that a social network analytical perspective on orchestration can improve our understanding of how governments and international organizations can shape transnational environmental governance. Through a case study of aviation, we provide two contributions to these debates: first, we propose four analytical factors that facilitate the possible emergence of orchestration (issue visibility, interest alignment, issue scope, and regulatory fragmentation and uncertainty); and second, we argue that orchestrators are more likely to succeed when they employ two strategies: (i) they use a combination of directive and facilitative instruments, including the provision of feasible incentives for industry actors to change their behavior, backed up by regulation or a credible regulatory threat; and (ii) they are robustly embedded in, and involved in the formation of, the relevant transnational networks of actors and institutions that provide the infrastructure of governance. © 2017 JohnWiley & Sons Australia, Ltd     

The Democratic Anchorage of Governance Networks

Governance through the negotiated interaction of a plurality of public, semi-public and private actors seems to provide an efficient means for governing our increasingly complex, fragmented and multi-layered societies. However, the big question is whether governance networks also contribute to the democratic governance of society. Governance network theory and post-liberal theories of democracy claim that there are both democratic problems and potentials associated with interactive network governance. In order to be able to assess, and possibly improve, the democratic performance of governance networks, the authors of this article develop and substantiate an analytical model for measuring the democratic anchorage of governance networks in different political constituencies and in an appropriate set of democratic rules and norms. In addition, it is argued that politicians should play a key role in efforts to ensure the democratic anchorage of governance networks.     

Toward “hardened” accountability? Analyzing the European Union's hybrid transnational governance in timber and biofuel supply chains

The voluntary/mandatory divide is a constant feature of scholarly debates on corporate accountability for sustainability in global supply chains. A widely held assumption is that the addition of state authority to private transnational governance in global supply chains will “harden” accountability and, thus, promote more sustainable production. The state's ability to set legally binding requirements is expected to coerce companies into complying. The hybridization of private and state authority is seen to strengthen good practice in private authority. This empirical study questions these assumptions based on an analysis of two hybrid governance arrangements for sustainability in global supply chains: the EU's Timber Regulation (EUTR) and Renewable Energy Directive (RED). The results demonstrate that both EUTR and EU-RED yield sector wide efforts of compliance and to this extent can be seen as enhancing accountability in the sense of answerability. At the same time, we find that the policies in both cases are not more demanding, nor enforced strictly, the latter putting into question their potential to coerce companies. Further, a “hardening” of accountability is at least obscured as both EUTR and EU-RED have stripped private authority they employ in their hybrid transnational governance from the need to establish legitimacy with a broader audience. This makes legal compliance and cost-effectiveness the core factor for companies’ efforts to demonstrate compliance. Our findings hence question whether the EUTR and EU-RED have led to “hardened” accountability compared to private transnational governance, and ask for an empirical, more nuanced understanding of what there is to gain or lose from hybridizing private and state authority in transnational governance.     

The Market Turn in EU Governance—The Emergence of Public–Private Collaboration

The question asked here is how the horizontal relationship between public and private actors, with the overall aim of delivering public service, is squared with the requirement of democratic accountability according to the traditional model of command and control. Empirical analysis of the European satellite navigation program (Galileo), the European Investment Bank and health, and the European Financial market (the Lamfalussy model) shows that efficiency is at the forefront of the collaborations. Democratic accountability is assumed to take place because there is a formal chain of delegation. However, the private actors are not part of that chain and their accountability is never addressed. The market turn in European Union governance has opened up for private authority and emphasis of output legitimacy. It has not opened up for democratic reforms according to the very authority system of governance. We are dealing with a governance turn and yet it is still government.     

The Limits of Control: The Market State,Divided Power,and the Response to 9/11

ABSTRACT

The 9/11 attacks demanded a response from the U.S. government, but designing and executing that response was not easily done. The United States is an advanced market society in which power is highly dispersed. Federal policymakers were confronted with challenges that we now regard as typical of the network form of governance. Their ability to act decisively was constrained by public law, by the political influence and superior knowledge of private industry, and by widespread skepticism about the legitimacy of federal authority. While many commentators worried about the excessive concentration of power in the federal executive branch after 9/11, it might be more accurate to say that the post-9/11 period was typified by a prolonged, and often unsuccessful, effort to induce cooperation and coordination by a range of public and private actors.     

When private governance impedes multilateralism: The case of international pesticide governance

Private standards play an increasingly important governance role, yet their effects on state-led policymaking remain understudied. We examine how the operation of private agricultural standards influences multilateral pesticide governance with a particular focus on the listing of substances under the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, a treaty-based information-sharing mechanism that allows countries to refuse hazardous chemical imports. We find that private agricultural standard-setting bodies use the Rotterdam Convention's pesticide list to develop their own lists of banned substances. This alters the Rotterdam Convention's intended role, impeding efforts to add substances to the treaty, as attempts by private actors to impose stricter governance than state actors can undermine the potential for international state-based governance to become more stringent. We characterize this as a “confounding interaction” whereby institutional linkages between actions by public and private actors with broadly aligned goals results in unexpected negative consequences for governance.     

Governance and Coercion

The present article departs from the assumption often found in literature concerning governance, which is that coercion is the quintessence of government and that, therefore, the growing importance of new forms of governance in policy formulation and implementation will lead to the adoption of softer policy instruments. This hypothesis will first be discussed in the wider context of the instrument choice literature, whereby an opposing view is derived. The two competing hypotheses are then tested in a comparison of the alcohol control policy designs of the Swiss member states, i.e. the cantons. The results of a multivariate regression analysis show that strong governance structures understood as networks embracing both public and private actors lead to the adoption of restrictive policy designs that must be enforced by public authority and as such cannot be employed by non-public governance actors. It is concluded that in their evaluation of policy instruments, governance actors follow a logic of consequentiality rather than a logic of appropriateness.