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

Abstract

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.

Outsourcing governance: states and the politics of a ‘global value chain world’

“…What may appear to be purely private forms of governance are always and everywhere underpinned by particular kinds of interactions with state authority and public governance. Private regulation is articulated in the 'shadow of the state' (Abbott and Snidal 2009), and the state represents the 'regulatory gorilla in the closet' (Verbruggen 2013). Here, we can draw on rich veins of insight in the literature which show how states and public governance are critical to promoting and shaping private governance, in a variety of ways: from the role of political contestation in determining the forms that emerging regulatory institutions and mechanisms have taken (Bartley 2007), to how state regulatory capacity is critical to the enforcement of transnational private regulation (Verbruggen 2013), and the 'governance triangle' that sustains the contemporary regulatory space (Abbott and Snidal 2009).…”

“…Private regulation is articulated in the 'shadow of the state' (Abbott and Snidal 2009), and the state represents the 'regulatory gorilla in the closet' (Verbruggen 2013). Here, we can draw on rich veins of insight in the literature which show how states and public governance are critical to promoting and shaping private governance, in a variety of ways: from the role of political contestation in determining the forms that emerging regulatory institutions and mechanisms have taken (Bartley 2007), to how state regulatory capacity is critical to the enforcement of transnational private regulation (Verbruggen 2013), and the 'governance triangle' that sustains the contemporary regulatory space (Abbott and Snidal 2009). These arguments need to be extended in our context to capture the ways in which regulatory authority is explicitly 'delegated' or, in our term here, 'outsourced' to private actors, where the explicit intention of state actors is to retract the state's direct control over particular arenas of regulation.…”

The Appropriate Level of Enforcement in Multilevel Regulation Mapping Issues in Avoidance of Regulatory Overstretch

“…6 Hannah Buxbaum observes that the functioning of administrative networks involves "a choice by state agencies to cede exclusive power over territory in order to gain instrumental power over forms of conduct subject to regulation" (at 308). See also Verbruggen (2013) on the background presence of state regulatory capacity in relation to the enforcement of transnational private regulation. 7 Pauwelyn also points to the relevance of private actors and arrangement, but excludes cooperation that only involves private actors (at 21).…”

The regulatory state and beyond

“…The UK industry responded with private regulation, which has been progressively enhanced, often with both encouragement and threats from government to legislate. The peak European organisation for private advertising regulation today represents effective private regulatory bodies across the EU and beyond, and has significant trust not only from national governments, but also from the European Commission (Verbruggen 2013). Similar stories might be told about press regulation in the United Kingdom and Ireland, where self-regulation has been a significant element of control in respect of press content, and governments have responded with threats and reform where the self-regulatory measures were found wanting (O'Dowd 2009).…”