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.     

Orchestrating sustainability: The case of European Union biofuel governance

This article provides an empirical analysis of orchestration – that is, the initiation, support, and embracement of private governance arrangements through public regulators – in the field of European Union biofuel governance. It examines the emerging sustainability regime and shows that orchestration has been extensively practiced. Regulators in the European Union have used a range of directive and facilitative measures to initiate and support private biofuel certification schemes and to incorporate them in their regulatory frameworks. This has given rise to a hybrid regime in which public and private approaches are closely intertwined. Discussing the benefits and complications of engaging with private biofuel sustainability governance, the article's findings point to a partial failure of orchestration in this policy area.     

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.     

Corporate policy entrepreneurship and cross-boundary strategies: How a private corporation champions mobile healthcare payment innovation in China?

The private nature of corporate actors does not necessarily preclude them from contributing to public interest. When business strategies and genuine public motivation are favorably aligned, corporate actors from the private sector can also drive public sector innovations. For a private corporation, policy entrepreneurship inherently entails crossing not only the public–private boundary but also various policy domains. This study formulates five propositions to characterize the cross-boundary strategies of corporate policy entrepreneurship, a distinct form of policy entrepreneurship in a developing authoritarian state. The case study of mobile healthcare payment innovation in China finds that the corporate entrepreneur used a series of cross-boundary strategies adeptly that eventually made the innovation not only adopted in one locality but also rapidly diffused nationwide. These strategies were not used in isolation or in a pure stepwise fashion but appeared to be recursive and interactive, suggesting the dynamic nature of corporate policy entrepreneurship in a multilevel governance system. More studies could be done to further examine strategies and processes of other forms of policy entrepreneurship in various national and sectoral settings.     

Does transnational private governance reduce or displace labor abuses? Addressing sorting dynamics across global supply chains

The attention of practitioners and scholars of private regulation of working conditions is focused on whether and how corporate buyers can help improve labor and safety standards in the factories that supply them by adopting codes of conduct, joining social certification schemes, participating in social audit processes, and financing safety improvements. I argue that more attention should be paid to the possibility that private regulation schemes – whatever degree of compliance they achieve – mostly result in a displacement effect or sorting dynamic that leaves the overall level of working conditions unchanged. I sketch a research agenda aimed at identifying the conditions under which a sorting dynamic can occur and at conceiving innovative private governance designs that could avoid it.     

Explaining non‐participation in deliberative mini‐publics

This article investigates citizens’ refusal to take part in participatory and deliberative mechanisms. An increasing number of scholars and political actors support the development of mini‐publics – that is, deliberative forums with randomly selected lay citizens. It is often argued that such innovations are a key ingredient to curing the democratic malaise of contemporary political regimes because they provide an appropriate means to achieve inclusiveness and well considered judgment. Nevertheless, real‐life experience shows that the majority of citizens refuse the invitation when they are recruited. This raises a challenging question for the development of a more inclusive democracy: Why do citizens decline to participate in mini‐publics? This article addresses this issue through a qualitative analysis of the perspectives of those who have declined to participate in three mini‐publics: the G1000, the G100 and the Climate Citizens Parliament. Drawing on in‐depth interviews, six explanatory logics of non‐participation are distinguished: concentration on the private sphere; internal political inefficacy; public meeting avoidance; conflict of schedule; political alienation; and mini‐public's lack of impact on the political system. This shows that the reluctance to take part in mini‐publics is rooted in the way individuals conceive their own roles, abilities and capacities in the public sphere, as well as in the perceived output of such democratic innovations.     

Private exit,public exit,and achievement in secondary education

Perceptions of declining academic achievement have motivated a number of governments worldwide to introduce greater school choices to parents in the hope of fostering competition and thus arrest the apparent decline in educational achievement. Exit provides dissatisfied citizens with a decisive mechanism to signal their views regarding the quality of public education institutions. Private exit – abandoning the public education system entirely – is well established in most countries; however, public exit – moving to a separate system of selective high-quality public schools – is an alternative that exists in only a few jurisdictions. We employ a comprehensive 6-year panel of data on socio-educational advantage and academic achievement for an education system which offers both private and public exit choice. In so doing, we show how different exit options affect choices and outcomes for various categories of schools.     

Private and public authority interactions and the functional quality of sustainability governance: Lessons from conservation and development initiatives in Tanzania

The changing shape of sustainability governance has been a key academic and policy concern in the past two decades, as part of a wider debate on the interactions between public and private authority in governing the economy, society, and the environment. In this article, we contribute to these debates by examining how these interactions operate locally and across jurisdictions in three conservation and development initiatives in Tanzania and what impact they have on the functional quality of sustainability governance. We find that clear division of responsibilities, coupled with material incentives for communities and equal and transparent distribution of benefits, are key positive contributors to functional quality. These factors underpin the complementary interactions (collaborative at the local level; institutional layering across jurisdictions) that are needed to successfully negotiate and implement the compromises needed to balance conservation and development goals. We also find that competitive dynamics are harmful to functional quality, especially those taking the form of local institutional duplication and of dominance by central government across jurisdictions. These tend to appear especially when sustainability initiatives involve multiple stakeholders with wide discrepancies in resources, interests, and power, which leads to compromises determined in a top-down manner.     

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.     

Climate Adaptation in Canada: Governing a Complex Policy Regime

Climate adaptation is a complex policy area, in which knowledge, authority, and resources are fragmented among numerous public agencies, multiple levels of government, and a wide range of nongovernmental actors. Mobilizing and coordinating disparate public and private efforts is a key challenge in this policy domain, and this has focused research attention on the governance of adaptation, including the dynamics of interaction among interests and the institutions that facilitate collective action. This paper contributes to the study of adaptation governance by adopting the policy regimes perspective, an analytical framework designed to make sense of the loose governing arrangements surrounding complex, fragmented problems. The perspective's constructs are applied to a longitudinal case study of adaptation governance in Canada, which identifies, analyzes, and evaluates the policy ideas, institutions, and interests that comprise Canada's adaptation policy regime.     

The role of institutional and governance factors in public–private partnerships infrastructure investments in emerging economies

The overall development and sustained growth of any economy depend heavily on its infrastructure provisioning. Emerging economies are usually characterised by constrained public investments in infrastructure. Budgetary constraints of the governments are one of the major hurdles to these investments. Due to these reasons that governments of emerging economies continuously seek collaborations with the private sector for additional sources of funding infrastructure. Economies with solid institutional and governance frameworks are known to provide a conducive environment for enhanced private sector attraction in the sector. However, emerging economies face greater institutional and governance issues than developed economies, and they sometimes fall short of luring private investments in the infrastructure sector. The objective of this study is to empirically evaluate the role of institutional and governance aspects in private sector attraction in emerging economies. This study provides empirical evidence with a sample of 114 emerging economies over a period of 20 years. Various econometric estimates were developed to explore the interplay between public-private partnership investments and governance factors. The results of the study provide an evidence of a positive association between these factors and private investments in public-private partnership arrangements.     

The Aboriginal Cultural Heritage Act 2003 (QLD): A form of private governance in action?

The Aboriginal Cultural Heritage Act 2003 (QLD) (ACHA) removes the Queensland Government from any direct role in the regulation of Aboriginal cultural heritage, and operates by encouraging and in certain circumstances, requiring agreements between developers and Aboriginal groups. This paper argues that these agreements constitute a form of private governance. Agreements between developers and Aboriginal groups have traditionally been seen as falling outside private governance literature as they are domestic and contractual in nature. However, private governance theory has recently been used to understand agreements between developers and Indigenous groups in Canada and this paper will demonstrate that the approach of the ACHA constitutes a form of private governance. This paper will analyse the ACHA against key principles for good governance and explore the challenges for the protection of Aboriginal cultural heritage when the state is removed as regulator.     

Homeowners Associations as Private Governments: What We Know,What We Don’t Know,and Why It Matters

Homeowners associations (HOAs) are private governments that are reshaping urban governance and service delivery in large parts of the United States. Despite the fact that millions of Americans are HOA members, the field of public affairs has paid scant attention to these new governance entities. The essays in this symposium call attention to HOAs’ potential effects on urban services and civic life in the hope of sparking interest among scholars and public managers to include HOAs in our understanding, research, and teaching of contemporary urban governance.     

Out of tune or well tempered? How competition agencies direct the orchestrating state

This article analyzes the impact competition agencies have on the orchestrating role of states in domestic private regulation. I argue that these agencies can significantly affect interactions in the governance triangle through the way they apply a “logic of the market” to evaluate agreements between firms. The regulatory framework of European Union competition law has increasingly constrained the ability of firms to take into account broader interests when making agreements to foster social objectives. This logic of the market clashes with the ever‐increasing emphasis governments place on enabling firms to enter into such agreements. I analyze this tension through a case study of a pact of Dutch retailers to collectively introduce higher animal welfare standards for poultry. Using regulatory network analysis I trace the governance interactions between the governance triangle on the one hand (government, non‐governmental organizations, and firms), and the Dutch competition authority, Autoriteit Consument en Markt (ACM) and the European Commission on the other hand. Attempts by the Dutch government to instruct the ACM to be more lenient toward private regulation were blocked twice by the European Commission. As a result, the Dutch government abandoned private regulation as the preferred mode and proposed a bottom‐up process that would generate public regulation as a way to avoid conflict with competition policy. I argue that paradoxically enough the intervention of these non‐majoritarian competition agencies against the “will” of the governance triangle has potentially increased the effectiveness and legitimacy of orchestration processes.     

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.     

Public‐private partnerships: consultation,cooperation and collusion

In late 2002, public‐private partnerships (PPP) rose to the attention of the New Zealand public and gained media attention due to what became known as the ‘Armstrong affair’. This paper provides an overview of the Armstrong affair and of the issues engendered by the affair for the formation of policy in relation to PPP. The most fundamental of these issues was the correct relationship between the public and private sectors. The Armstrong case illustrates the way in which the demarcation between the two sectors must be maintained—and seen to be maintained—in the conduct of public affairs. If it is not, the accusation may rightly be levelled that the processes of consultation and cooperation have crossed over into collusion. Copyright © 2003 Henry Stewart Publications     

Magnetic law: Designing environmental enforcement laws to encourage us to go further

The European Union has some of the world's most ambitious and highly developed environmental laws on its books, but their effectiveness is severely compromised by non-compliance. With the UNECE Aarhus Convention (1998), Europe launched an innovative legal experiment, democratizing environmental enforcement by conferring third party citizens and environmental non-governmental organizations (ENGOs) with legal rights of access to environmental information, public participation, and access to justice in environmental matters. Based on some 2000 surveys and over 150 interviews with stakeholders from three Member States – France, Ireland, and the Netherlands – we adopt a holistic, 360° perspective, capturing the views of regulated parties, NGOs, and the general public on this private governance experiment. Our data provide important new insights into the practical effectiveness of Europe's laws enabling private environmental enforcement, its (intended and unintended) effects on farmers' compliance decisions in the vital area of nature conservation, and how law might be used to stimulate pro-environmental predispositions.     

Transnational private governance between the logics of empowerment and control

Transnational private governance initiatives that address problems of social and environmental concern now pervade many sectors. In tackling distinct substantive problems, these programs have, however, prioritized different problem‐oriented logics in their institutionalized rules and procedures. One is a “logic of control” that focuses on ameliorating environmental and social externalities by establishing strict and enforceable rules; another is a “logic of empowerment” that concentrates on remedying the exclusion of marginalized actors in the global economy. Examining certification programs in the areas of fair trade, organic agriculture, fisheries, and forest management, we assess the evolutionary effects of programs prioritizing one logic and then having to accommodate the other. The challenges programs face when balancing between the two logics, we argue, elucidate specific distributional consequences for wealth, power, and regulatory capabilities that private governance programs seek to overcome.     

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.     

Institutional Constraints,Managerial Choices,and Conflicts in Public Sector Supply Chains

In this research, we compare the governance mechanisms that public sector managers and private sector managers leverage when responding to conflict in supply chain relationships. We find evidence that public sector managers are more likely than private sector managers to rely on written (formal) contract mechanisms, but that both public and private managers use relational (informal) governance mechanisms to similar extents. We also find that managers from both sectors perceive an improvement to the quality of the exchange relationship when a relational approach is emphasized in managing the conflict. Our research provides an important contribution to our understanding about the actions public managers take in dealing with supply chain conflicts and suggests potential policy alternatives to foster contracting efficiency and effectiveness.