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New Political Economy
ISSN: (Print) (Online) Journal homepage: https://www.tandfonline.com/loi/cnpe20
Power and the Practice of Transnational Private Regulation
Tim Bartley
To cite this article: Tim Bartley (2022) Power and the Practice of Transnational Private Regulation, New Political Economy, 27:2, 188-202, DOI: 10.1080/13563467.2021.1881471 To link to this article: https://doi.org/10.1080/13563467.2021.1881471
Published online: 01 Feb 2021.
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Power and the Practice of Transnational Private Regulation
Tim Bartley
Department of Sociology, Washington University in St. Louis, St. Louis, MO, USA
ABSTRACT
Corporations, NGOs, and private regulatory initiatives have taken on functions once assumed to be the domain of the state and inter- governmental organisations. While researchers are racing to assess the impacts of private rules, theoretical statements remain focused on the design, legitimation, and intermediation of private initiatives or the hegemony of neoliberal governance. This paper instead highlights the grounded practices of transnational private regulation, and it argues that much about these practices can be explained through a straightforward (but multi-faceted) analysis of power. Specifically, unpacking the practice of private regulation requires a focus on (1) the distinctive power struggles that animate different types of standard- setting projects (which should not be reduced to a single logic), (2) the saturation of private regulation with corporate power (not merely the capture of particular intermediaries), and (3) the construction of compliance in ways that accommodate state powers at the point of implementation. These points are illustrated with examples from research on private rules for land and labour and accounts of standards wars more generally.
KEYWORDS
Transnational governance;
global standards;
contestation; corporate social responsibility; multi– stakeholder initiatives;
regulatory intermediaries;
global production networks;
theory
Introduction
Transnational private regulation has exploded over the past three decades. Private bodies like the International Organization for Standardization (ISO) and International Accounting Standards Board have created authoritative standards for harmonising national business systems (Büthe and Mattli 2011, Farrell and Newman2016). Multi-stakeholder initiatives for sustainable production have pro- liferated, from the Forest Stewardship Council to Roundtables on Sustainable Palm Oil, Soy, Bioma- terials, and others (Cashoreet al.2004, Ponte 2014). So have labour-focused initiatives, from the Ethical Trading Initiative and Social Accountability International to numerous brand-specific ethical sourcing projects (Locke2013, Bair and Palpacuer2015, Barrientos2019), as well as corporate policies to mitigate risks of human rights abuses (Buhmannet al.2019). Voluntary standards can be shallow and self-serving for thefirms that adopt them, but they have clearly imposed new require- ments for thesefirms’suppliers, fuelling demand for audits, management systems, traceability tech- nologies, and assurances of best practices (LeBaron and Lister2015, Clark and Hussey2016, Power 2019).
As private standards, codes, metrics, and assurances have become institutionalised as normal fea- tures of global production networks, research has blossomed and matured. It is no longer enough to analyze the rise of private regulation, the competitive landscape of industry-driven and multi-stake- holder initiatives, or the ascendant discourses of sustainability, responsibility, or governmentality.
There is mounting evidence that private rules are routinely evaded, watered down, or redefined
© 2021 Informa UK Limited, trading as Taylor & Francis Group CONTACT Tim Bartley [email protected] 2022, VOL. 27, NO. 2, 188–202
https://doi.org/10.1080/13563467.2021.1881471
on the ground (e.g. Anner2019, Dietzet al.forthcoming), casting doubt on research that focuses solely on rules on paper or institutional design. Even research that documents partial effectiveness comes with sobering caveats about blind spots and countervailing processes (e.g. Carlsonet al.2018, Amengualet al. 2020). Theories of transnational governance, though, remain mostly focused on emergence, design, or legitimation. To explain why voluntary initiatives take different forms, for instance, scholars can look to theories of institutional design (Potoski and Prakash 2009, Auld 2014) and the politics of global standard-setting (Büthe and Mattli 2011, Farrell and Newman 2016). The legitimacy of private governance has likewise been theorised from numerous angles (Cashoreet al.2004, Dingwerth2017, Hale2020). Research on outcomes is growing, but theoretical guidance is sparse.
Tofill this gap, this paper sketches several principles for a political economy of transnational private regulation that takes its consequences, contexts, and contents seriously. The central idea is that some simple stylised facts about intersecting expressions of power can help us make sense of the concrete practices of private regulation. This perspective rests on three foundations. First, it builds on the idea that transnational private regulation must be understood as‘grounded’in particu- lar contexts and practices (Grazforthcoming), as opposed to being seen through decontextualized models of institutional design or universal diagnoses of transnational governance. This perspective emphasises not only outcomes on the ground in particular places (thefirst conception of grounding, as described by Graz) but also actors’locally situatedpractices(Graz’s second conception of ground- ing)– meaning stylised but not fully institutionalised ways of interacting with a given task. I will especially highlight corporate practices pertaining to the‘pushing’of rules and auditors’practices in the construction of compliance.
Second, this approach draws inspiration from the political economy of power in a world of global production networks, reconfigured but still relevant nation-states, and regimes of inequality and marginalisation (Clapp and Fuchs2009, Mayer and Phillips2017, Mikler2018). By ‘power’, I mean the ability of an actor to influence the behaviour or outlook of other actors, such that the latter act and/or see differently than they would on their own. I follow Clapp and Fuchs (2009) in using a multi-dimensional conception of power (Lukes1974), including instrumental actions to shape par- ticular decisions, structural power over agendas and alternatives, and discursive power over how problems are perceived and talked about. The growth of transnational private regulation is in itself a reflection of corporations’multifaceted powers, through which they have gained the right to write their own rules and avoid binding state regulation (Soederberg 2009, Mikler 2018). But an analysis of corporate power is also essential for making sense of dynamicswithinprivate regulat- ory arenas.
Third, I draw empirical examples broadly from literatures on global standards (e.g. Büthe and Mattli2011), with particular attention to research on the implementation of private rules for land and labour, especially pertaining to sustainable forestry (McDermott2012, Malets2015) or decent working conditions in manufacturing (Anner2019, Amengualet al.2020). This includes the compara- tive case studies in Bartley (2018), which are used here to illustrate a new account of power and demonstrate the value of seeing private regulation as a bundle of‘practices localised in the many sites of global production networks’(Grazforthcoming, p. 1).
Other theoretical agendas, highlighting‘regulatory intermediaries’(Abbottet al.2017) and‘gov- ernance interactions’(Eberleinet al.2014) have become increasingly central to research on private regulation (Lambin and Thorlakson2018, Brèset al.2019, Fransen and LeBaron2019). Thefirst draws attention to actors such as auditors and certifiers that sit in between regulators and their targets. The second highlights conflictual and collaborative interactions betweenfirms, standard-setting initiat- ives, NGOs, and states at various points in the regulatory process. These are welcome insofar as they shift attention from emergence and legitimation to practices of interpretation and implementation.
But they leave a great deal unspecified and indeterminate. The intermediaries approach offers a widely applicable but open-ended theoretical vocabulary, and the interactions approach is explicitly intended as a ‘framework to facilitate analytical clarity’ rather than a theory with a ‘stronger
theoretical“bite”’(Eberleinet al.2014, p. 6, 8). I seek instead to make testable claims about the most powerful actors and intersections, and to draw substantive distinctions rather than naming generic processes.
In the critical political economy literature, scholars have theorised links between private regu- lation and logics of neoliberalism, managerialism, and extractivism (Phillips2016, Banerjee 2018, Sharma and Soederberg 2020). This research provides important critiques of ‘marketized social justice’(Soederberg2009), so-called‘political corporate social responsibility’(Banerjee 2018), and an ‘ethical audit regime’ based on illusion (LeBaron and Lister 2015). But this tradition offers fewer tools for explaining variation across times, places, and arenas of private regulation (see Taylor2011 for an exception). Though imprinted by their neoliberal origins and dependence on large corporations, private regulatory arenas are varied in their contents (from technical standards to labour rights), trajectories, and locations of implementation. I hope to provide some tools for describing and unpacking these differences.
I proceed by developing three central claims: (1) Generalised images of power struggle and con- testation must be unpacked to identify distinctive trajectories of transnational private regulation. (2) Despite widespread contestation, large companies exercise the most consequential forms of power over the practice of private regulation. (3) The power of the state at the point of implementation, far from being transcended, is routinely accommodated in the construction of compliance.
Power Struggles: Distinctive Trajectories
Private regulation is nearly always contested, as different sets of actors vie for the power to legiti- mate their preferred approaches. Because private regulation depends on voluntary participation and rules that do not necessarily have the backing of the state, contestation has a wider scope here than in government regulation. It happens through ‘exit’ rather than only through‘voice’, and it frequently spawns multiple competing rule-making projects.
Contestation and power struggles are accordingly at the centre of many lines of research. Scho- lars of Global Production Networks have emphasised the‘contested governance’that arises as chal- lengers press leadfirms to adopt social or environmental standards (Levy2008, Bair and Palpacuer 2015). International relations scholars have highlighted the distributional conflicts entailed in global standardisation (Büthe and Mattli2011) and the‘additional layer of contestation and rulemaking at the transnational level’(Newman and Posner2016, p. 774). Field theorists have characterised trans- national regulatoryfields as battlefields in which‘dominant actors occupy central positions and per- ipheral actors constantly struggle for greater influence and power’ (Djelic and Sahlin-Andersson 2006, p. 23), with particular forms of expertise being legitimated through‘hierarchical and contested processes’(Dezalay and Garth2010, p. 114). There is also a large body of research on how various private regulatory initiatives ‘compete for rule-making authority or legitimacy’ (Cashore et al.
2004, p. 17), with this type of interaction‘sometimes shading into conflict or domination’(Eberlein et al.2014, p. 4).
This attention to contestation is essential, but there is a risk of conflating different types of power struggles, which have distinct consequences for the practice of private regulation. Consider struggles over technical standards, such as the competition between Blu-ray and HD-DVD formats, compared to struggles over rules for sustainability and fairness in global production net- works. Both can be treated as competitive struggles to establish the de facto standard in an industry (Büthe and Mattli2011, pp. 25–27), but the content of the struggles and the likelihood of an eventual consensus would appear to be quite different. As a different example, the deadly collapse of the Rana Plaza complex of factories in Bangladesh in 2013 led not only to the rise of two transnational factory safety initiatives that competed for credibility but also a qualitatively different power struggle with the Bangladeshi government, which challenged the initiatives’authority (Rahman and Rahman 2020).
Rather than lumping these together as generalised contestation, competition, or interaction, I will argue that power struggles are ubiquitous, but they take distinct trajectories depending on the par- ticular contents of rule-making/standard-setting projects. Three varieties of power struggles are most apparent–what I call the politics of harmonisation, the politics of credibility, and the politics of grounding (SeeTable 1). This typology stems from an attempt to square diverse processes docu- mented in the literature with a theoretical interest in the conditions under whichfields are charac- terised by constant combat or gradual settlement (Krause2018). Though not an exhaustive list, it captures central processes in the literature and provides a heuristic device for unpacking contestation.
The Politics of Harmonisation: Struggles over Standardisation
One type of struggle occurs as rivals from different sectors and jurisdictions vie for the power to turn their preferred approaches into the global standard.‘Standards wars’ of this sort can be seen in struggles between American and European industry groups over accounting standards (Botzem and Quack2006, Büthe and Mattli2011, Farrell and Newman2016) and international commercial arbitration (Dezalay and Garth 2010); in complex contention over standardised practices for the offshoring of service industries (Graz2019); and in U.S.-China rivalries in the bid to control quality standards for the global cotton industry (Quark2013). Power struggles in these cases are mainly riv- alries between different sets of companies, with national state agencies championing keyfirms and industries.
Standards wars are endemic in globalising industries, but they typically centre onwhichstandards are to become dominant – that is, which national industry gets to globalise its approach –not whetherstandards are attractive to companies. Private regulatory orders in these cases fundamen- tally serve a market-coordinating and market-expanding purpose–that is, to harmonise inconsisten- cies across jurisdictions and sectors in order to facilitate trade, investment, or other forms of integration. A shared interest in market expansion generates fierce distributional conflicts about who will be in the best position to profit, but there is a shared interest in standards nonetheless.
As a result, one usuallyfinds a period of intense conflict and debate, which eventually settles on a single standard, at least provisionally. U.S.-European rivalries over accounting standards heated up until the International Accounting Standards Boardfinally became the de facto single provider of global accountings standards in the mid-2000s (Büthe and Mattli 2011, Farrell and Newman 2016). Quality standards for cotton promoted by the U.S. and transnational merchants were chal- lenged by Chinese rivals in the 2000s, but this led to a partial convergence on something like
‘U.S. standards with Chinese characteristics’(Quark2013, p. 182), reflecting a new settlement with rising powers. The settlement of standards wars institutionalises particular forms of expertise at
Table 1.Varieties of contestation.
Politics of harmonisation Politics of credibility Politics of grounding Axis of conflict Competing national industries Companies, NGOs, trade unions Private regulators (initiatives,
firms, auditors) and governments Substance of
conflict Whose standards get globalised Credibility of private rules Authority to operate within borders
Intensifies with
… Divergent business systems, rising powers
Exposés and disasters Claims about national sovereignty Examples International Accounting
Standards Board, cotton quality standards
Sustainability claims and counter- claims (e.g. for coffee, apparel, palm oil)
Bangladesh Accord, FSC in China
Typical
trajectory Conflict to settlement Spiralling credibility contests Punctuated periods of contention Typical content
of project Market-coordinating standards Market-restricting rules Rules with high political salience
the global scale, which then tend to be valorised within and beyond a particular private regulatory regime (Dezalay and Garth2010). Although this process of struggle and settlement is often gener- alised, it is most likely in particular conditions.
The Politics of Credibility: Contestation over Market-Restricting Rules
Settlement on a single standard is less likely when rule-making projects attempt to restrict practices that would otherwise be profitable–such as particular employment practices or forms of natural resource extraction. Here, private regulation is enmeshed in a spiralling politics of credibility, in which companies, NGOs, trade unions, and industry associations debate what should be covered in the rules, how much reform is necessary, who gets to decide, and who watches the watchers.
These power struggles are central to research on the formation of sustainability and labour standards initiatives (Auld2014, Bloomfield2017), competition between NGO-endorsed and industry-driven initiatives (Cashoreet al.2004, Fransen2011), the evolution of claims over time (Levyet al.2016), and the rise of meta-governance (Loconto and Fouilleux2014). Both neo-Gramscian accounts of con- testedfields (Levyet al.2016) and managerial accounts of‘private politics’(McDonnellet al.2015) argue that reputation-sensitivefirms will tend to accommodate some activist demands, while pre- serving their autonomy and market position, generating new demands and charges of hypocrisy.
One need not delve into the intricacies of credibility contests to recognise that contestation means something different here than in the politics of harmonisation discussed above. Perhaps most importantly, firms here are usually interested in private regulation for reputation-building and risk management reasons, not for the sake of coordination and market expansion. They face demands from activists, but these can be accommodated through rules for their operations or supply chains, rather than truestandards that create uniformity across allfirms. Settlement on a single set of rules is less likely than persistent and iterated contestation, sincefirms have fundamen- tally different goals than their challengers (e.g. collective representation and bargaining power for trade unions, and public attention and leverage for reform for NGOs). There may be convergence on two or three central initiatives in an industry, but the institutionalisation of a single set of stan- dards is unlikely.
One can analyze the politics of credibility by tracing the revision of rules and oversight over time (e.g. Levyet al.2016), the ebb andflow of support for industry-driven and NGO-endorsed initiatives (e.g. Cashoreet al.2004), or the development of new approaches and technologies to improve the integrity of private regulation (e.g. Outhwaite and Martin-Ortega2019, Power2019). As discussed later, large companies have a privileged position in these power struggles, even if they cannot entirely control them.
The Politics of Grounding: Private Regulators and State Sovereignty
A different sort of contestation may ensue when transnational private regulation confronts state control on the ground. As transnational rules are put into practice in a given location, they inevitably clash with pre-existing cultures of production, national strategies for economic growth, and often domestic law and governance. For example, transnational norms about workers’freedom of associ- ation may clash with routine suppression of trade union rights. Rules about sustainable and fair use of land may conflict with long-standing practices of landowners or state land-use agencies. These clashes generate a distinctive kind of power struggle that I call the ‘politics of grounding’. The central players here are the array of actors operating a transnational private regulatory initiative (e.g. sponsoring companies, NGOs, or international unions; auditors or certifiers) and domestic gov- ernment agencies at the point of implementation.
As Marques and Eberlein (forthcoming) argue, in a growing number of cases, governments at the point of implementation have sought to ‘repurpose or replace’ transnational private regulatory initiatives. ‘Repurposing’ usually means combining transnational rules with export promotion
projects.‘Replacing’represents a more direct and contentious response. Beyond the examples given by Marques and Eberlein (see also Giessenet al.2016), consider the fate of the Accord onfire and Building Safety in Bangladesh, an initiative of several global trade union federations, labour rights NGOs, and apparel brand signatories. As the firstfive-year term of the Accord came to a close, the Bangladeshi government pushed it to transfer its operations to the state. In 2018, the Banglade- shi High Court ordered the Accord to cease operations, leading to a series of extensions and nego- tiations that ultimately led inspections to be transferred to a new but far less independent initiative run by the Bangladesh Garment Manufacturers Association and government, starting in 2020. The resistance from government stemmed from factory owners’complaints about the costs of improve- ments (Okaet al.2020), political tensions rooted in the perception that the Accord was‘interfering with state affairs’(Rahman and Rahman2020, p. 10), and the Accord’s emphasis on worker represen- tation at a time of rising repression against labour rights activism in Bangladesh (Bair et al.
forthcoming).
Another stark example comes from the Forest Stewardship Council’s experience in China. While governments have often helped to build‘homegrown’competitors to the FSC (Cashoreet al.2004), Chinese government agencies went much further in also cracking down on the FSC’s ability to operate in the country. The State Forestry Administration and Chinese Academy of Forestry initially helped to expand FSC certification into China. But as it became clear that their working group would not be recognised as an official National Initiative/Office of the FSC, some actors within these agencies bristled and formed a competing initiative, the China Forest Certification Council (CFCC).
At the same time, the Certification and Accreditation Administration of China (CNCA), tightened the rules for foreign certifiers operating in China, reversing an earlier agreement with the FSC.
This forced smaller FSC-accredited certifiers (e.g. Smartwood and the Soil Association) to cease forest management audits in China and left others (e.g. SGS and Bureau Veritas) unsure of how to meet some of the requirements. WWF-China, which had the State Forestry Administration as its required sponsor, was asked to end its devotion to the FSC and lend its support to the Chinese programme.
The FSC did not get pushed out of China entirely. It managed in 2015 to get assurances that its standard could still be used, even as new rules endorsed CFCC as authoritative. But the amount of FSC-certified land in China fell from a peak of 3.4 million hectares in 2014 to 1.5 million hectares in 2015, and then to less than 1 million hectares by 2019 (Bartley2018, Forest Stewardship Council 2019a). Certification under the Chinese standard grew rapidly to 5.6 million hectares by late 2015, just two years after affiliating with the FSC’s global competitor, the Programme on the Endorsement of Forest Certification (PEFC2015). The Chinese government’s actions were simultaneously a reasser- tion of state sovereignty, a reflection of concerns about market access for Chinese forest products, and the outgrowth of personal squabbles among a small group of practitioners. This was not an out- right rejection of foreign/transnational standards, which had initially been embraced, but rather an emergent response to the FSC’s procedures and standards, which conflicted with Chinese definitions of what counts as a‘natural forest’among other things (Bartley2018).
These examples suggest that the politics of grounding are especially contentious when transna- tional rules in practice are interpreted as an infringement on national sovereignty. Governments that feel confident about their domestic industry’s position in global production networks are more likely to mount a direct challenge to transnational initiatives, while others will more quietly resent the intrusion. Although these examples cannot speak to trends over time, it is likely that the resurgence of nationalism (in the form of both authoritarian populism and resource nationalism) intensify the politics of grounding. Unlike the conflict-settlement pattern in the poli- tics of harmonisation and the constantly spiralling politics of credibility, the politics of grounding is likely to be punctuated by periods of contention and subsequent shifts in the geography of trans- national private regulation.
Corporate Power: From Capture to Saturation
Recognising the contested character of transnational private regulation should not lead one to assume that the players are competing on equal footing in an open and pluralistic arena. I will argue that transnational private regulation is saturated with corporate power, even as initiatives manage their credibility and navigate state controls at the point of implementation. This argument provides an alternative to the growing interest in‘capture’in the regulatory intermediaries literature.
Researchers have often emphasised the power of companies to write their own rules and use private regulation to protect their reputations and promote narrow forms of transparency, whether through the lens of institutional design (Abbott and Snidal2009, Auld2014) or the political economy of corporate responsibility (Levyet al.2016, LeBaron and Rühmkorf2019). To get closer to the concrete practices of turning rules on paper into reforms on the ground, scholars are turning to the regulatory intermediaries approach, which highlights auditors/certifiers and their relationships with regulators (usually large retailers/brands in the case of private regulation) and targets (usually supplier factories, farms, etc.). Adopting the language of ‘capture’ from theories of state regulation, Abbott et al. (2017) note that intermediaries may serve as watchdogs that prevent targets from capturing regulators, but also that intermediaries can be captured themselves. They are likely to be captured by targets, Abbottet al. argue, when the target is responsible for paying for the intermediary’s services and can choose among several intermediaries. Researchers have extended this insight through analyses of captured credit rating agencies (Kruck2017) and the cre- ation of captured intermediaries by fracking companies (Avidanet al.forthcoming), among other cases.
These are useful analyses, but a focus on captured intermediaries is far from a full account of cor- porate power, and it may obscure as much as it reveals about the practice of private regulation. In particular, it highlights the contingencies of capture in an otherwise pluralistic environment, com- posed of various regulators, targets, and audiences. This obscures several ways in which private regu- lation issaturated with corporate power. As Davis et al. (2018) argue, lead firms exercise varied powers in global production networks, from writing the rules that suppliers must follow to sanction- ing non-compliance. Civil society and state actors shape these processes when their interests con- verge with those of lead firms, but when interests diverge, firms’ concentrated resources and capacities to act across national borders give them a privileged position. Similarly, Clapp and Fuchs (2009) argue that firms with large market shares and central ‘chokepoint’ positions in global production networks have a kind of structural power that bolsters their instrumental lobbying of governments and discursive framing efforts.
Two features of transnational private regulation are especially important in this light. First, the leadfirms that set expectations for their supply chains are also the keyenforcersof these rules. Inter- mediaries may do the interpretive work to decide what counts as compliance, but the consequences of (non)compliance, improvement, or backsliding depend on the rewards and penalties issued by the firms that demanded rules/standards in the first place. Structural power over suppliers may be a necessary condition for meaningful enforcement, but it is far from sufficient. Research on the apparel industry shows that large brands often fail to apply meaningful rewards/penalties for com- pliance/noncompliance with their rules for decent labour conditions, which reduces their impact on practices in factories (Anner2019, Amengualet al.2020). Conversely, when brands and retailers align their sourcing decisions with factories’compliance ratings, there is mounting evidence that it pays off–for both factory owners (Distelhorst and Locke2018) and workers (Amengual and Distelhorst 2019). Here we see how corporations’ concrete and instrumental enforcement practices, as opposed to the judgments of intermediaries, shape the meaning of private regulation.
Second, even when buyer-supplier relationships are mediated by multi-stakeholder initiatives that give NGOs or trade unions a seat at the table, these initiatives are structurally dependent on large firms that agree to push the standards through their supply chains. Factories, farms, fisheries, and forest management operations most often adopt standards or seek certification (to
challenging performance standards at least) in response to specific demands from lead firms in global production networks, not as a proactive strategy for attracting business (Vandenbergh 2013, Auld 2014, Poulsenet al. 2016). Large brands and retailers –of food, clothing, electronics, and other consumer products–may agree to‘push’rules through their supply chains in order to build their reputations or accommodate demands of activist groups. Multi-stakeholder initiatives (MSIs) oversee the rules and assessments, but they depend far more on large brands/retailers than any other type of stakeholder, due to thesefirms’ability to demand or incentivize compliance on a large scale. This gives large companies a great deal of structural power over an MSI’s operations, growth strategy, and rule revision. Research on institutional design has revealed important variation in the meaning of‘multi-stakeholder’governance (Schleifer2019), but this may be outweighed in practice by a similar form of dependence on large brands and retailers.
Consider several leading multi-stakeholder initiatives. The Forest Stewardship Council has a design that limits the power of companies, amplifies the voice of non-industry actors, and uses democratic decision-making to revise standards–which has limited the watering down of its stan- dards for forest management (Klooster2010). But for its standards to reach forests around the world, the FSC has long depended on retailers such as B&Q, The Home Depot, and other large paper, packa- ging, and furniturefirms to demand certification among their suppliers (Conroy2007, Auld2014).
Ikea’s various pledges to increasing its wood supply from FSC-certified forests have been especially important in driving forest certification on the ground in Russia (Malets2015), China–where Ikea partially subsidised certification costs (Bartley2018)–and elsewhere.
Other multi-stakeholder standards have likewise depended on corporate commitments. Marine Stewardship Council certification offisheries increased sharply after Wal-Mart promised in 2006 to sell only MSC-certified seafood withinfive years (Auld2014). This was followed by commitments from Marks & Spencer in 2010, McDonalds in 2011–2013, and the MSC’s growing reliance on fees from licensing its logo, which account for approximately 80 per cent of yearly income (Zwerdling and Williams2013, Marine Stewardship Council2019). Sales of palm oil certified by the Roundtable on Sustainable Palm Oil increased by roughly 400 per cent from 2010 to 2016 as Unilever, Nestlé, McDonalds, Kellogg’s, and Procter & Gamble responded to activist campaigns by promising to demand certification in their supply chains (Dauvergne2017).
MSIs’dependence on large brands/retailers does not ensure corporate dominance, since MSIs also depend on NGOs for credibility. Still, once MSIs are well-established, departures of prominent NGOs may not be devastating (Dingwerth2017). The Fair Labor Association lost links to the Inter- national Labor Rights Forum in 2009 and the Maquila Solidarity Network in 2013; it did not have a major labour rights NGO on its Board of Directors in the years that followed. Social Accountability International’s Advisory Board once included a prominent international trade union leader, but its
‘non-business’ seats have frequently been sparsely filled, sometimes by academic researchers or industry associations (e.g. the Foreign Trade Association).1The Forest Stewardship Council’s 2018 loss of a founding member, Greenpeace International, over concerns that FSC standards are‘not con- sistently applied across regions, especially where there’s weak governance’ (Greenpeace Inter- national 2018), may ultimately damage its standing with other environmental NGOs. But in the short term at least, there has been continued growth in the number of FSC forest management cer- tificates (roughly 5 per cent growth) and chain of custody certificates (roughly 20 per cent growth) since the departure (Forest Stewardship Council2019b).2
Some analyses suggest that the consolidation of buying power has weakened standards on the ground. The coffee sector, for instance, has seen a consolidation of coffee buyers over the past 15 years – first through the growth of Starbucks and more recently through acquisitions, and the entry of private equityfirms (Grabs and Ponte2019). Largefirms’growing interest in Fairtrade cer- tification aligned with Fair Trade USA’s 2011 decision to allow certification of large-scale coffee plan- tations (rather than just cooperatives) (Jaffee 2012) and the subsequent adoption of labour standards for hired agricultural workers that are weaker than those elsewhere in the Fairtrade system (Raynolds and Rostyforthcoming). Consolidation among coffee roasters also increases the
potential for large firms to abandon third-party certification for their own internal traceability systems (Grabs and Ponte2019)–and this threat of exit likely enhances their voice.
The saturation of transnational private regulation with corporate power should be a starting point for careful analysis, not the end of the inquiry. Put differently, MSIs’degree of structural dependence on large corporations andfirms’instrumental exercise of power to sanction compliance/noncompli- ance should be seen as variables rather than constants. One important task is to examine variation over time and across cases in the degree of structural dependence of MSIs on largefirms. Research- ers should also look carefully at how leadfirms manage penalties, rewards, and relationships as they push rules onto their suppliers. To the extent that leadfirms combine structural power over suppliers with well-established instrumental practices for fostering and rewarding improvements and reme- diating or penalising backsliding, we should expect private regulation to be far more influential on the ground. Several studies examine this in the apparel industry (Schuessleret al.2019, Amengual et al.2020), but this is rare in other industries, where scholars often limit themselves to counting cer- tificates or estimating price premiums for certification.
The Construction of Compliance and the Accommodation of State Power
How can one acknowledge both the power of transnational corporations to push rules through their supply chains and the centrality of state controls in the politics of grounding? What happens if com- panies are pushing rules that clash with domestic governance at the point of implementation? In this section, I argue that this tension is commonly smoothed over by constructing compliance in a way that accommodates state power while appearing from a distance to uphold transnational norms.
Scholars of‘audit cultures’have long argued that auditing puts a premium on formal written docu- ments and easily quantifiable indicators, and some have extended this into the construction of com- pliance with transnational rules for sustainability or fairness (Silva-Castañeda 2012, LeBaron and Lister2015). Taking state power seriously adds another layer, in which the meaning of compliance is shaped not only by metrics and documentation, but also by private regulators’on-the-ground understandings of what is realistic to demand within a particular national or sub-national context.
These understandings can vary depending on what auditors/certifiers are pushed to perceive or problematise.
Even when indicators of compliance are highly specified, auditors must decide what to scrutinise most closely, how to decide between major and minor problems, and what sorts of corrective actions to require. This depends in part on the normal way of doing business in a given location and what kinds of changes are considered realistic. For instance, if independent trade unions are prohibited or commonly repressed, private regulators will tend not to heavily scrutinise the independence or integrity of organisations claiming to represent workers, such as state- or company-controlled unions. If the state grants land-use rights to companies regardless of community or customary claims, private regulators will tend at most to check the community compensation agreements and dispute resolution procedures that companies have set up, as opposed to questioning the state’s designation of the land. Yet well-networked watchdogs may also be able to push toward
‘maximalist’ rather than minimalist definitions of compliance. When present in a given location, NGOs, unions, or other civil society groups organise and amplify the voices of stakeholders in private regulatory assessments (Malets 2015) and exert pressure on firms to take compliance more seriously (Oka2016). This may push the bounds of what is considered realistic. For example, when independent community organisations or Indigenous rights NGOs are involved in the assess- ment of a sustainable forest, companies may be pushed to strengthen compensation agreements or engage in new mapping of forest boundaries and claims. Where civil society is weak–including but not limited to authoritarian settings–private regulators are more likely to utilise minimalist construc- tions of compliance that more fully accommodate the state. National-level governance has a struc- turing influence on civil society organising, but there can be significant sub-national differences as well (Spires2011, Brass2016).
Other characteristics of the exporting country may shape the extent to which auditors are likely to accommodate the state. When a national industry is a major exporter of a given product–such as palm oil in Indonesia, electronics in China, or apparel in Bangladesh–and leadfirms in global pro- duction networks are unable or loathe tofind substitutes, private regulators should have a greater incentive to accommodate state power. Otherwise, they would risk having to reject the vast majority of operations in the country as deeply noncompliant or uncertifiable. In addition, if exporting com- panies’interests and a strong state’s dictates are closely aligned, then private regulators are more likely to be‘realistic’and accommodating to maintain their operations in that setting, as compared to a setting where state-exporter interests are divergent or wavering.
Consider transnational rules about workers’freedom of association as assessed in China, where the state controls the All-China Federation of Trade Unions (ACFTU) and restricts association more generally (see Friedman2013, Gallagher2004). One solution is for codes to include loopholes that subvert the international norms they appear to endorse, as with Walmart’s requirement that suppli- ers‘respect the rights of workers to join, form or assist a trade union, or refrain from doing so,in accordance with applicable law and practice’(emphasis added). Another solution is for auditors to downplay the problem or treat ACFTU-affiliated unions as legitimate, as has most often happened with the FSC’s standards on forest workers’freedom of association in China (Bartley2018). Some brands and multi-stakeholder initiatives have instead identified structures and practices that may count as acceptable alternatives in China or other places where independent unions are banned.
Social Accountability International’s SA8000 standard calls for facilities to‘allow workers to freely elect their own representatives’(SA8000 standard, 2014, criterion 4.2), typically to a worker commit- tee. The Fair Labor Association gradually endorsed a mix of worker committees, internal grievance procedures, and human resource management systems as indicators that factory managers are lis- tening to workers’voices (Bartley2018). In addition to encouraging committees that are most often weak and fragile, these constructions of compliance have allowed seemingly stringent rules about labour rights to take hold in a labour-repressive location. In fact, SA8000s accommodation of the Chinese context was seemingly one reason it did not face the same backlash from the state that the FSC did (Bartley2018), in spite of government agencies’early fears that SA8000 would be‘a new export barrier’that challenges China’s competitive advantage (Jin2004, p. 1).
The role of civil society in shaping the degree of accommodation can be seen in the assessment of land rights in FSC certification in Indonesia and China. The FSC requires that forest management enterprises have clear documentation of land tenure and uphold the customary rights of Indigenous peoples, unless they have granted‘free and informed consent’to others (Forest Stewardship Council 2002).3These are challenging to implement in Indonesia, where land tenure is contentious and Indi- genous peoples’customary rights have been ignored by the state–both historically and in recent practices of the Ministry of Environment and Forestry, which grants timber harvesting concessions (McCarthy2012). Certifiers have generally accepted state designations as legitimate– even while some admitted that ‘doing FSC 100 per cent would require changing the national regulation’ (qtd. in Colchesteret al.2003, p. 18). They have mainly assessed whether there is a sufficient agree- ment regarding compensation to communities (Ruslandi et al. 2015). When domestic NGOs are active, though, certifiers’practices have sometimes included careful attention to how consent was granted or new projects to map community claims. ‘You’re lucky if there’s an NGO there’, one auditor said, explaining that it is otherwise difficult to understand company-community relationships (qtd. in Bartley2018, p. 110).
In China, there is an even stronger tendency for private regulators to adopt‘realistic’and‘prag- matic’definitions of compliance. With few independent watchdogs or organised social movements that can organise stakeholders or contest claims, certifiers have rarely been pushed to scrutinise land rights or problematise acts of dispossession. For instance, a government-sponsored group in south- western China helped to develop a large eucalyptus plantation for the Swedish-Finnish company Stora Enso through tactics that were misleading of villagers at best and a‘land grab’at worst (Li and Nielsen 2010). When Stora Enso sought FSC certification to repair its reputation, it had to
show that land acquisition practices were reformed and a robust dispute resolution process was in place. But the certification was granted quickly–just six months after the pre-assessment (much faster than in similar Indonesian cases) – based on defining many of the initial land acquisition tactics as ‘historical issues, not directly attributable to Stora Enso’, as one auditor put it (qtd. in Bartley2018, p. 158).
These examples illustrate how tensions that might otherwise lead to a contentious politics of grounding can be smoothed in the construction of compliance–and to a greater extent where civil society is weak or coopted. While further comparative research is needed, it is also likely that constructions of compliance tend to be more deferential to the state when the problem at hand is politically salient in that location–that is, where the state most needs to assert its authority– and when it has high capacities to do so. Overall, this section emphasises that while transnational private regulation can introduce new norms, its practice on the ground often ends up merely tweak- ing existing cultures of production and papering over repressive state polices.
Conclusion
Private standards, best practice metrics, and assurances of compliance are significant components of
‘the world that trade built’(Farrell and Newman2016). The three central claims in this paper capture important features of this world. First, it isfilled with contention over the power to make one’s par- ticular approach into an unquestioned global norm. But these power struggles take different forms:
A politics of harmonisation pitsfirms against each other but often settles on a dominant standard. A politics of credibility pitsfirms against critics in civil society and trade unions, and it tends to spiral more than settle. A contentious politics of grounding ensues when state agencies reassert their sovereignty against particular rule-making projects, and this may reshuffle transnational orders.
Second, large corporations exercise power in private regulatory arenas in ways that the language of‘capture’struggles to represent –often through a combination of structural and instrumental powers. The saturation of private regulation with corporate power is especially crucial for analysis of enforcement and of multi-stakeholder initiatives, where NGOs and unions might otherwise appear to be on equal footing. Third, to expand the scope of private regulation, auditors and their overseers routinely accommodate the power of the state to prescribe and proscribe particular actions within its borders. Often this serves the interest of companies that want assurances of com- pliance while continuing to operate in repressive environments. Deferring to the state in the con- struction of compliance may also help to prevent a highly contentious politics of grounding – linking two of the central points above. Going further, there may be links between the type of con- testation and exercise of corporate power. For instance, when power struggles arebetweenfirms(i.e.
the politics of harmonisation), one may find something akin to ‘quiet politics’(Culpepper 2011), where power is exercised out of the spotlight and in the guise of technical specifications; this con- trasts to noisier public confrontations in the politics of credibility.
These notes on power illustrate the value of taking the substance and grounded practices of transnational private regulation seriously. In contrast to generic frameworks for conceptualising interactions and intermediaries, the power-centric approach sketched in this article shows how the contents of rules/standards underlie different trajectories over time, different styles of contesta- tion, and different relationships with states. Moreover, this power-centric approach treats corpor- ations not merely as one actor among many, but as occupying a privileged position within the apparatus of transnational private regulation. Political economy scholars have long recognised mul- tidimensional corporate powers, but mainly in order to situate and challenge naïve celebrations of corporate responsibility. This article suggests a revised path, which retains a focus on power but orients it toward unpacking differences in the trajectories and consequences of private regulation.
In addition, by highlighting situatedpracticesrather than universal logics (Grazforthcoming), this paper underscores the need for comparative research on different locations, rather than making the general limits of private regulation the end of the analysis.
Several guidelines for the next wave of research follow from this paper’s arguments. First, to analyze power struggles over private regulation, researchers shouldfirst diagnose the variety of con- testation at hand. They can then better identify the relevant factions and the resources they bring, and assess the claims made above about the trajectory of struggles (i.e. settling, spiralling, and punc- tuating). Second, to unpack corporate power, researchers should look for variation in the structural power of business over MSIs and examine the instrumental practices through whichfirms enforce rules/standards in their supply chains. Third, scholars should analyze the situated practices of con- structing compliance in different arenas and locations. This might involve assessing the claim above about the role of domestic civil society in pushing for maximalist constructions, or more broadly inquiring into how‘rituals of verification’(Power1997) vary across places.
It also seems that the ground is moving under us just as research on transnational governance is becoming normal science. Trade wars and resurgent nationalisms are challenging the neoliberal order that gave rise to transnational private regulation. Brands and retailers that have pushed rules through their supply chains face massive online competitors, which have so far not been pushed to take responsibility for their suppliers. Attempts to automate technologies of traceability promise to either strengthen or hollow assurances of compliance. As scholars puzzle through this shifting terrain, we need robust tools for unpacking intersecting powers in particular places, not sty- lised diagnoses or vocabularies.
Notes
1. Advisory Board Listing as of June 2016,https://web.archive.org/web/20160610005251/http://www.sa-intl.org/
index.cfm?fuseaction=Page.ViewPage&pageId=494
2. The amount of certified land has hovered around 200 million hectares since mid-2017.
3. This was upgraded to‘free, prior, and informed consent’with version 5.0 of the standard in 2015.
Acknowledgments
For helpful comments on previous versions of this paper, I thank Jean-Christophe Graz, Janina Grabs, Thomas Dietz, Nicole Helmerich, and other participants in the Lausanne workshop on Grounding the Politics of Private Governance.
The paper also benefitted from feedback at the Research Seminar in Political Science at the University of St. Gallen, including comments from Klaus Dingwerth, Oliver Westerwinter, and James Davis.
Disclosure Statement
No potential conflict of interest was reported by the author(s).
Notes on contributor
Tim Bartleyis a Professor of Sociology at Washington University in St. Louis. His most recent book,Rules without Rights:
Land, Labor, and Private Authority in the Global Economy(Oxford University Press, 2018), examines the implementation of fair labor and sustainable forestry standards in Indonesia and China. The book received the Harold and Margaret Sprout Award from the Environmental Studies section of the International Studies Association and an honorable mention from the Global and Transnational Sociology section of the American Sociological Association. He has pub- lished articles on Social Movements, Regulation, and Global Governance in theAmerican Sociological Review,American Journal of Sociology,Annual Review of Sociology, Social Forces, Socio–Economic Review, Global Networks, and a number of other journals.
ORCID
Tim Bartley http://orcid.org/0000-0002-0049-0607
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