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.     

The changing politics of lobbying: private sector organizations in Mexico

This article analyzes how the relations between Mexico's private sector, particularly that of business power groups and interest groups, and the political elite changed as a result of processes of neo-liberalization and democratization from the early 1980s through the presidency of Vicente Fox (2000–2006). The analysis provides several insights into Mexico's developing interest group system during these years and particularly that of business interests. On the one hand, the changes increased political pluralism, the number of groups operating, and their lobbying options and helped move Mexico toward liberal democracy. On the other hand, with its major resources and political connections, big business was able to maintain, in fact enhance, its political status, whereas small business was less politically successful. Moreover, many old political practices used by big business to influence government persist as well as skepticism among the public regarding democratic institutions. As a consequence, this article argues that despite the new developments in political advocacy, the continuation of traditional political practices presents obstacles to the development of interest group activity resulting in a plutocratic element to Mexico's emerging democracy. Copyright © 2013 John Wiley & Sons, Ltd.     

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.     

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.     

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.     

The Institutionalization of Private Governance: How Business and Nonprofit Organizations Agree on Transnational Rules

This article assesses the recent trend of cooperation among antagonistic private actors that results in the creation and implementation of issue-specific transnational norms and rules and the subsequent shift from public to private forms of governance. Many political scientists agree that authority also exists outside of formal political structures. Private actors increasingly begin to make their own rules and standards that acquire authority beyond the international system. This observation is often referred to as private transnational governance as opposed to public or international governance. Although the concept of private governance gains prominence in academic debates, it is not clear how private governance on the global scale is constructed and maintained or what specific or general conditions are necessary for private governance to emerge. Based on the review of common theoretical propositions, this article develops an integrated model along which the necessary conditions for the emergence of private governance can be assessed and understood. As most research has hitherto focused on institutionalized cooperation between business actors (self-regulation), this article takes a closer look at those transnational systems of rule that result out of the enhanced cooperation between profit and nonprofit actors (coregulation).     

Grounding transnational business governance: A political-strategic perspective on government responses in the Global South

Recent scholarship on transnational business governance has begun to examine public-private interactions and the active role of governments. We make two key contributions that integrate and expand this literature. First, in juxtaposition to functionalist accounts, we foreground the fundamentally political and often contentious character of these interactions. As private transnational governance schemes and standards “hit the ground,” private-public interactions, we argue, are embedded in national political arenas and tied to domestic distributional struggles among competing regulatory coalitions. Building upon multiple empirical streams of research, we develop a political-strategic framework that maps the diversity of Southern government responses (substitute, adopt, repurpose, replace, or reject) to transnational private governance. Our framework shows that government responses are a function of both strategic fit with domestic industrial capabilities and structures, and strength of developmental state capacity. Second, our proposed framework adopts the vantage point of Global South governments and industries, particularly how development challenges and strategic options within global value chains affect their understanding of, and responses to, transnational schemes and standards. This is an important corrective to a Northern bias in the private governance literature.     

Corporations at a crossroads: How multilevel governance interactions shape participation and effort in private governance regimes

This article argues that the interactions between firm agency in corporate management and the multilevel governance structures in which firms operate condition firms' participation and effort in private governance regimes. Empirically, I examine the Fortune Global 500 firms' decisions about participation and the extent of participation in the Carbon Disclosure Project during 2011–2015. Given firms' strategic considerations, the efficacy of corporate management structures and practices is conditioned by domestic regulatory and global regime contexts, and this efficacy varies across developed and developing countries. In developed countries, corporate, domestic, and global governance positively reinforce each other as drivers of private regulation on climate change. These governance levels are complements not substitutes. By contrast, the main drivers of participation and effort in developing countries are corporate management structures and practices, the stringency of domestic regulatory institutions, and their interactions. This article's results are robust to alternative specifications, including an alternative modeling approach.     

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.     

Experimentalist interactions: Joining up the transnational timber legality regime

This paper analyzes the interactions between the separate components of the emerging transnational timber legality regime, both public and private. It examines how far, and through what institutional mechanisms, these interactions are producing a joined-up transnational regime, based on a shared normative commitment to combat illegal logging and cooperative efforts to implement and enforce it. The paper argues that the experimentalist architecture of the EU FLEGT initiative has fostered productive, mutually reinforcing interactions both with public timber legality regulation in other consumer countries and with private certification schemes. But this emerging regime remains highly polyarchic, with broad scope for autonomous initiatives by NGOs and private service providers, along with national governments, international organizations, and multi-donor partnerships. Hence horizontal integration and coordination within it depend on a series of institutional mechanisms, some of which are distinctively experimentalist, while others can also be found in more conventional regimes. These mechanisms include cross-referencing and reciprocal endorsement of rules and standards; recursive learning through information pooling and peer review of implementation experience; public oversight and joint assessment of private certification and legality verification schemes; and the “penalty default” effect of public legality regulation in consumer countries, which have pushed both exporting countries and transnational firms to comply with the norms and procedures of the emerging transnational regime. The paper's findings thus provide robust new evidence for the claim advanced in previous work that a joined-up transnational regime can be assembled piece by piece under polyarchic conditions through coordinated learning from decentralized experimentation, without a hegemonic power to impose common global rules.     

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.     

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.     

Assessing the institutionalization of private sustainability governance in a changing coffee sector

The potential of transnational private governance initiatives to constitute effective alternatives to state‐led regulation of global value chains rests on their ability to scale up and become institutionalized in a given sector. This study examines whether such institutionalization has occurred in the coffee sector, the commodity with the most widespread adoption of certified products and over 30 years’ experience of private governance, and tests hypotheses on facilitating and inhibiting conditions. It finds that while norm generation around responsible supply chain management and the organizational institutionalization of standard‐setting bodies is well advanced, the practice of internalizing social and environmental externalities through the routinized production and purchase of higher priced certified goods continues to be questioned by industry actors. Indeed, conditions that favored normative and organizational institutionalization, such as high levels of industry concentration, product differentiation, and deliberative interaction, are shown to represent barriers to the practice‐oriented institutionalization of market‐driven regulatory 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.     

New Governance, the Internet, and Country Code Top-Level Domains in Europe

Much academic work on governance in recent years has explored responses that states have made to sectors of the economy, usually historically well rooted nationally, that have been subject to globalizing pressures. Less work exists on responses that are being made to new parts of the economy emerging outside the nation state with inherently global characteristics. The Internet—and specifically its naming and addressing system—provides an example of how the state has aimed to assert public interest governance authority in a system initially absent of its influence. This article explores the nature and consequences of this activity in the process contributing to the study of the Internet and governance. Working within the limitations but also the opportunities created by policy norms developed at the global level, the article finds that the state has been instrumental in the development of novel public–private governance systems for Internet country code Top-Level Domains.     

Global governance and communicative action: a study of democratic participation during planning for the Lyon–Turin rail link

Organisation–stakeholder engagement during planning of a high‐speed rail link between France and Italy is described and analysed in this paper. Conceptualising organisation–citizen engagement as a form of deliberative democracy, the study's theoretical framework draws upon literature from communication, social and political science. Following a review of governance for transnational organisation–stakeholder engagement, communication methods used by one transnational organisation, Lyon‐Turin Ferroviaire (LTF), to engage in ‘discursive legitimacy’ with affected parties, is studied. A qualitative case study approach examines whether LTF's engagement with stakeholders provides opportunities for democratic participation rather than creating a democratic deficit in the public sphere. Results point to a lack of mechanisms through which transnational policy makers can be held accountable‐leading in this case, to a legitimacy crisis for institutions involved, threatening their ability to justify the economic and transportation viability of the project. This article is of interest to academics in communication and social sciences, managers working in an international context and communication professionals. Copyright © 2014 John Wiley & Sons, Ltd.     

Democracy or Good Governance? Globalization,Transnational Capital,and Georgia's Neo-liberal Revolution

Western aid donors merge democracy and good governance in theory and practice. Yet, since the 2003 Rose Revolution, Georgia's governance indicators have soared while its democracy scores have plummeted. The good governance–democracy merger constitutes an attempt by the transnational capitalist class to cultivate consent for its hegemonic project of neo-liberal globalization. This article highlights the personal and institutional networks connecting Georgian elites with the organizations involved in globalizing governance and democracy. It shows how these organizations are dominated by the representatives of transnational capital. Finally, it shows that Georgia, as an undemocratic but effective ‘governance state’, is not an exception.     

Correlates of rigorous and credible transnational governance: A cross‐sectoral analysis of best practice compliance in eco‐labeling

The number of eco‐labeling schemes is rising dramatically, yet the rigor and credibility of such schemes remains uneven. Whereas some eco‐labeling organizations (ELOs) comply with best practice guidelines designed to increase the credibility of their standards through attention to good operating principles, such as transparency and impartiality, others do not. Within this article, I attempt to explain this variation through multivariate regression analysis of an original cross‐sectoral dataset of transnational ELO policies and practices. I find compelling evidence to suggest that ELOs with environmental non‐governmental organization (ENGO) partners, nonprofit structures, or broad transnational reach are most likely to comply with best practices. I also find that private ELOs are more likely to disregard best practices than public ones. Conversely, I find little evidence that levels of industry funding or sector‐specific competition dynamics affect best practice compliance. This study contributes new data, a new method of comparison, and new findings to the growing literature on transnational governance.     

Private regulatory capture via harmonization: An analysis of global retailer regulatory intermediaries

Studies using the Regulatory–Intermediary–Target (RIT) framework have examined a variety of forms of regulatory capture, including how targets capture intermediaries (T?I) and how intermediaries capture regulators (I?R). Little attention has been paid to why and how regulators themselves might engage in capture. Yet such a scenario is likely in transnational governance settings characterized by regulatory competition and conflict, as well as power differentials between different types of private regulators (non‐governmental organizations, multinational corporations, and business associations). This paper elucidates why and how a private regulator might capture another private regulator via a regulatory intermediary: R1?I?R2. Drawing on interview and archival data, I examine three industry‐driven regulatory intermediaries created to harmonize private labor codes of conduct and ethical audit processes. These are founded and governed by a small group of retail trade associations and global retailers who also fulfill the role of private regulators (R1). My analysis reveals that the creation of these intermediaries is driven by global retailers’ reliance on standardization, low transaction costs, and regulatory harmonization across all aspects of their operations. It further reveals how the harmonization platforms are designed to leverage global retailers’ market power and evolve from regulatory intermediaries into de facto regulators that supplant existing private regulators (R2), and thereby capture transnational governance of consumer product supply chains. The article concludes by discussing contributions, implications, and avenues for future research.     

Governing kidnap for ransom: Lloyd's as a “private regime”

Kidnap for ransom raises significant governance challenges. In the absence of formal regulation and enforcement, insurers have created an effective private governance regime to facilitate smooth commercial resolutions. Controlling ransoms is paramount: “supernormal” profits for kidnappers create kidnapping booms and undermine the market for insurance. Ransom control requires cooperation, but there are high transactions costs in enforcing a collusive agreement. The Coasean prediction is that a single firm will form to internalize the externalities arising from lax insurance and mismanaged ransom negotiations—or a government must order the market. There is indeed a single source of kidnap insurance: Lloyd's of London. Yet, within the Lloyd's market several insurers compete for business. Lloyd's is a club providing private governance: Its members issue standard contracts, follow the same regime for kidnap resolution, and exchange information to stabilize ransoms. Lloyd's, therefore, combines aspects of Coase's “single firm” and “government” solution to the externalities problem.