Beyond Westphalia: Competitive Legalization in Emerging Transnational Regulatory Systems

Abstract

This paper analyzes several emerging transnational regulatory systems that engage, but are not centered on state legal systems. Driven primarily by civil society organizations, the new regulatory systems use conventional technical standard setting and certification techniques to establish market-leveraged, social and environmental regulatory programs. These programs resemble state regulatory programs in many important respects, and are increasingly legalized. Individual sectors generally have multiple regulatory programs that compete with, but also mimic and reinforce each other. While forestry is the most developed example, similar patterns are evident in agriculture, fisheries, apparel, and mining, among other sectors.The paper describes the institutional structures and routines of the new regulatory systems, their interactions with state based systems, and some possible broader implications for law and society. Among other things, it notes that the emerging regulatory systems permeate their sectors with increasingly broad and deep rule systems and seek to remain highly dynamic at the same time. The paper closes with a brief discussion of whether the systems might be sketching the outlines of new forms of transnational democracy.

Institutional trust: The process of trust formation in Russian forest villages in accordance with the international system of forest certification

“…The latter circumstance is often viewed as an attempt on the part of business to weaken certification standards and make them easier to execute. In addition, other systems do not always combine environmental standards with social ones, or the possibility of regional variation and additional control mechanisms (Meidinger, 2007).…”

Transnational Business Governance and the Management of Natural Resources

“…(Avant, Finnemore, and Sell 2010) These systems of governance have grown in number and significance, and they increasingly overlap and interact in ways that we know very little about. (Eberlein et al, Introduction) We see this most clearly in environmental standard--setting, where certification systems such as the Forest Stewardship Council vie with the Sustainable Forestry Initiative for the allegiance of producers and consumers (Bartley, Cashore and Stone, Overdevest and Zeitlin, and Gulbrandsen in this special issue (Cashore, Auld, and Newsom 2004;Meidinger 2006). But such initiatives have emerged across a much wider array of problems-labor (O'Rourke 2003), finance (Porter, this issue), information technology (Tully 2004;Mueller 2002), and others.…”

Forest certification and democracy

“…Most programs now provide for multistakeholder participation, notice and comment processes for rulemaking and adjudication, public responses to comments and explanations of decisions, formalized dispute resolution and appeals processes, publication of rules, procedures and decisions, and similar practices characterizing modern administrative regulation (Meidinger 2006(Meidinger , 2007. Norms for participation continue to intensify, so that, for example, the best practices standards of the International Social and Environmental Accreditation and Labelling Alliance require that ''participation reflects a balance of interests among interested parties'' and that ''the standard-setting process shall strive for consensus'' (ISEAL Code 2006, paragraphs 5 and 7).…”

“…This article builds on the growing body of empirical research placing such programs in their larger organizational fields 1 (e.g., Abbott and Snidal 2009a, b;Bartley 2003Bartley , 2007Bartley and Smith 2010;Cashore et al 2003Cashore et al , 2004Dingwerth and Pattberg 2009;Elliott 2000;Meidinger 1999Meidinger , 2000Meidinger , 2003Meidinger , 2006Meidinger , 2007Meidinger , 2008Overdevest 2004Overdevest , 2010 and considers democratic legitimacy in terms of broader regulatory systems containing multiple programs. 2 Instead of adopting the conventional assumption that competition among programs is a form of dysfunctional fragmentation leading to confusion and ineffectiveness, it explores the possibility that interprogram competition may lead to more democratically legitimate standards and institutions.…”