Private regulation and governance

Democratic legitimacy is rarely associated with private governance. After all, private actors are not legitimized through elections by a demos. Instead of abandoning democratic principles when entering the private sphere of governance, however, this article argues in favour of employing alternative criteria of democracy in assessments. Specifically, this article uses the criteria of participation, transparency and accountability to evaluate the democratic legitimacy of private food retail governance institutions. It pursues this evaluation of the democratic legitimacy of these institutions against the background of their ambivalent impact on the sustainability of the global agrifood system. The paper refers to a range of cases of private retail standards with different governance structures and substantial foci to illustrate its argument.

The trade in conflict minerals has led to the eruption and conservation of conflicts and gross violations of human rights, in particular in the central African region. In response, various public and private entities have taken measures to counter this development. The purpose of this essay is to analyze how the European Union, in light of its promotion of corporate social responsibility, should regulate the behaviour of multinational companies dealing with minerals from conflict-ridden areas. In light of recent initiatives taken by the UN, the United States and the mineral-extraction industry, it is examined whether the EU should adopt public regulation or whether it should continue its promotion of private self-regulatory regimes. The authors argue that the EU should promote regulation at the level that provides the strongest incentive for companies to comply with their duties. This article shows that both private and public regulation have their limitations in regulating the trade in conflict minerals and that the EU should thus adopt a mix of both. In doing so, the development of transparency norms can be delegated to companies, stakeholders and other affected parties, while the EU could provide for an effective accountability mechanism to enforce these norms.

In recent years scholars from various disciplines have turned their attention to transnational regimes of regulation that are chiefly developed outside state-driven frameworks. The rise of such “transnational private regulation” has also led to the emergence of private metaregulation.
The term ‘meta-regulation’ commonly refers to processes through which a regulatory body oversees another and sets standards for its activities or performance of regulation. In the public domain, meta-regulation has been associated with the devolution of regulatory activities by a statutory body to private actors with the view to enhance voluntary rule compliance, awareness of responsibilities among the regulated and reduce public enforcement costs. However, in the transnational private domain the rationale for meta-regulation appears to be a different one. We contend that meta-regulation in this domain is less concerned with the goal of enhancing rule compliance and efficiency in enforcement, but instead is more prominently concerned with the bolstering of the integrity, legitimacy and accountability of private regulatory regimes and the coordination between such regimes. To furnish this argument the paper develops a comparative analysis of two sectoral private meta-regulators involved in transnational private regulation: the Global Food Safety Initiative in the food industry and the European Advertising Standards Alliance in the advertising industry. These two organisations have developed guidelines, benchmarks and performance indicators for other private bodies involved in transnational regulatory activities. The comparative analysis is focused around four principled and interlinked questions: (i) What has driven the emergence of meta-regulation in the private regulatory domain?; (ii) What are the forms and functions of private meta-regulation?; (iii) What is its relationship with public regulation and regulators?; and (iv) How and to what extent does private meta-regulation contribute to the legitimization of transnational private regulation?

Private institutions for third-party (eco-)labelling of food and wood products has been a lively field of empirical research, peaking in the conception of certification as a ''non-state market-driven governance system,'' which is gaining rule-making authority domestically and internationally as a private governance institution and a transnational regime. Recent findings, however, suggest that state actors also play a decisive role in private certification governance. Questions relating to who within the state, however, so far remain unaddressed. Very recent empirical trends in the fields of timber and palm oil certification in Indonesia suggest that it is distinct public bureaucracies who start reclaiming certification authority through state-led mandatory schemes, challenging the private and transnational certification institutions in support of government-driven international certification regimes. Against this background, the objective of this paper is to substantiate the trend from transnational private to international state-driven governance by analyzing the role of distinct state bureaucracies in the emergence, diffusion, and reshaping of private natural resource governance systems. To achieve these objectives, we develop our propositions by combining insights from political certification studies, regime theory, as well as bureaucratic politics theory. Methodologically, we employ a qualitative case study design on recent developments in forest, timber, and palm oil certification systems in Argentina and Indonesia. Our results substantiate the observation that distinct state actors play a key role in private governance systems and, in the case of Indonesia, even reclaim labelling authority from private institutions by attempting to outcompete them through employing their exclusive regulatory power. The results further indicate a strong, self-interested support from domestic state bureaucracies to state-driven international rather than to transnational certification regimes, supporting the temporary governance hypothesis. We discuss and conclude on our results in light of literatures on private governance, policy sectors as well as international relations theory on the emergence of international and transnational regimes.

The work on ‘regime complexes’ – loosely coupled regimes linked through non-hierarchical relationships – provides a lens for understanding the increasing density of international rules and institutions. However, the role of private authority in the regime complex – situations where non-state actors set rules or standards that other actors adopt – has only recently
received academic attention. In this article, we ‘unbundle’ the concept of the regime complex in two novel ways. Firstly, we argue that an accurate depiction of any regime complex must also include private authority. Secondly, using examples from environmental governance, we carefully elaborate four specific mechanisms through which public and private authority interact, demonstrating the ways in which private authority can improve the problem-solving capacity of regime complexes. In short, a full understanding of the contributions of private authority to solving environmental problems requires examining its interactions with public rules and institutions.

Leadership in Energy and Environmental Design (LEED) certification is the most prominent voluntary environmental program for built environments. It has four tiers: Platinum, Gold, Silver and Certified. As of 2015, in the United States, 14% of certified buildings are in the Certified tier, 33% in the Silver tier, 45% in the Gold tier and 8% in the Platinum tier. Why is the Gold tier the most popular although it is neither the least expensive option nor the most environmentally friendly one? To investigate this subject, we conducted interviews with owners of 144 properties across 27 US states and Washington, DC. We find that program design, specifically requirements/points for certifying to a specific tier, influences benefits–costs for certifying to different tiers. Other factors driving tier choice include the region in which the property is located, prior experience of the builder/owner with a particular LEED tier, the availability of subcontractors and the norms for leasing time frames. Finally, the nomenclature of different LEED tiers also shapes the value perception .