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Enrolling actors in regulatory systems: Examples from UK financial services regulation

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Abstract

The fragmentation and hybridisation of governance has been a preoccupation of public lawyers and others for some time. Commentators have focused variously on the internal and organisational fragmentation of the executive (the development of next step agencies, for example, and the growth of new control relationships as a consequence of the implementation of strategies of new public management), on the fragmentation and hybridisation of service delivery (contracting-out, public-private partnerships, the private finance initiative), and on the fragmentation and hybridisation of regulation. Concerns have been both to map and analyse the changing nature of the exercise of governance functions and to address the issues of accountability to which such changes have given rise.5 This article focuses on regulation and suggests that we build on existing analyses of regulation as a decentred and fragmented activity by exploring the notions of regulatory capacity and regulatory enrolment, and provides illustrations using examples from the current system of UK financial services regulation. In focusing on regulatory capacity and regulatory enrolment, it is suggested, an analytical framework can be developed which has both prescriptive and descriptive dimensions, and which may facilitate thinking on how regulatory functions are and should be distributed between diverse actors in a regulatory system.

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... Although scholars have conceptualized these forms of indirect governance in a variety of ways, one of the most influential over the last decade, and the one relied on in this article, is Black's (2003) concept of "enrollment." Enrollment is based on the assumption that the capacity for governance is spread across many actors. ...
... Governance outcomes are not the product of a single actor, such as a state, regulating a citizen that commits a crime, but is the outcome of a multitude of actors that interact in complex ways. Enrollment therefore refers to a strategy for linking actors that have different regulatory capacities to enhance the capacity of all actors (Black 2003;Havinga & Verbruggen 2017). Like other forms of indirect governance, it recognizes that governance outcomes are frequently coproduced by state and non-state actors whose authority and legitimacy are often contested (Dellas et al. 2011: 87, Pattberg & Stripple 2008. ...
... Despite the growing interest in exploring indirect governance at the global level and the related work on the G20, in many domains characterized by fragmentation we still know relatively little about how it operates. In the domain of energy, we do not have answers to the basic empirical questions that Black (2003) argued are fundamental to analyzing indirect governance relationships. The first question is which actors are being enrolled? ...
Article
In recent years, there has been a growing interest in exploring indirect governance at the global level. However, very little work has considered these relationships in the domain of energy. In fragmented global governance domains, such as energy, the G20 has frequently been identified as an actor capable of steering other actors via indirect forms of governance. Yet to date, we do not have answers to key questions including, what is the range of actors being enrolled by the G20? And what governance functions are these actors enrolled to perform? To answer these questions, I utilize a novel database of G20 enrollment since 2008, which shows that the G20 enrolls international organizations more frequently than any other actor, and that agenda setting is the most commonly performed governance function. These data are then matched with qualitative interview data to make descriptive inferences about the patterns of global energy governance, including the extent of fragmentation, the identity of focal actors, and the G20's steering role, and how these patterns have changed over time.
... To understand the role of regulation in markets one must know both how rules are written and how they are interpreted and enacted by regulators and the regulated (Edelman 1992;Black 2002;Mahoney and Thelen 2010;Edelman and Talesh 2011;Gray and Silbey 2014). Much as market actors approach financial market devices and their outputs reflexively and adapt them to local use (Muniesa et al. 2007;Beunza and Stark 2012;Turco and Zuckerman 2014), they also reflexively interact with and enact rules and regulations. ...
... Economic sociologists of law and sociolegal scholars insist that in order to understand the effect of regulation on the behavior of market agents, it is necessary to investigate not only the rules but also how they are locally interpreted when firms seek to comply with them (Edelman 1992;Black 2002;Halliday and Carruthers 2007;Ford 2008;Gray and Silbey 2014). Rules and regulations seeking to impose societal control on organizational behavior are by definition "overor underinclusive and thus indeterminate and subject to interpretation" (Black 1997, p. 10), which explains why their implementation becomes "a site for overt contestation" (Edelman and Stryker 2005, p. 537). ...
... The current literature, however, does not specify when and how the regulators internalize the perceptions of the regulated. While regulators, by the nature of their profession, may have to interact closely with the regulated (Black 2003), it has been shown that cognitive capture does not necessarily result from such interactions (Riles 2011). ...
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While the role of laws and regulations in structuring markets is well established, it is less understood how rule evasion affects the evolution ofmarkets or howthe interaction between regulators and the regulated about the meaning of compliance influences this effect. The authors study this issue by looking at the development of the asset-backed commercial paper (ABCP) market in France, Germany, and the Netherlands from 1999 to 2009. In all three countries, this market involved financial innovations designed to evade regulations. The authors identify diverging trends in the ABCP market that are a result of whether and how regulators were embedded in the different interpretive communities that defined regulatory compliance, such embeddedness being dependent on their discretionary and sanctioning power as well as their expertise. Focusing on these regulatory networks that embed institutions in markets, they propose a synthesis of relational and institutional accounts of the embeddedness of markets.
... Giving someone the cold shoulder is a well-known phrase, meaning to deliberately ignore someone. In this context, 'cold shouldering', as the name implies, is a strategy of holding others accountable by ignoring or excluding them if they do not conform to expectations or some rule(s) (Black, 2003). In our polycentric example, the SAPS employ (or threaten to employ) this strategy to motivate the CID Managing Body and private security to work towards a good relationship with them. ...
... Selfregulation may be very strongly motivated, especially for non-state entities that derive considerable legitimacy from their ability to show that they are accountable. These accountability developments constitute the core of what polycentric assemblages are meant to promote -sites by which innovative, 'smart' and decentred regulation happens in light of the inadequacies of a reliance solely on state-constituted and/or hierarchical regulatory systems (Black, 2003(Black, , 2008Braithwaite & Drahos, 2000;Gunningham, 2009;Gunningham & Grabosky, 1998;Jones, 2003;Walker, 2002). ...
... The OECD considers stakeholder engagement in regulatory governance a good governance practice: "The central objective of regulatory policy -ensuring that regulations are designed and implemented in the public interest -can only be achieved with help from those concerned by regulations -the stakeholders" (OECD 2016, p. 3). The importance of stakeholder engagement in regulatory governance has long been identified in the literature on regulatory governance (Ayres and Braithwaite 1992;Black 2003;Coglianese, Zeckhauser and Parson 2004) and more recently through the regulatory intermediary framework, which theorizes the different roles stakeholders can fulfill in regulatory governance. Engaging stakeholders will benefit the regulatory process throughout the different stages, including both 'downstream' roles (monitoring and compliance) and 'upstream' roles such as providing expertise and in advisory functions (Abbott and Snidal 2013;Abbott, Levi-Faur and Snidal 2017;Brès, Mena and Salles-Djelic 2019;Martinez, Verbruggen and Fearne 2013). ...
... As regards regulatory governance, the literature seems inconclusive about the potential impact of stakeholder engagement in (supranational) regulatory governance. Studies regarding regulatory enrolment (Black 2003), responsive regulation (Abbott and Snidal 2013), and the recently emerging literature on regulatory intermediaries (Abbott et al 2017;Brès et al 2019) all emphasize the potential of involving stakeholders in regulatory trajectories for effective and responsive regulatory governance, as well as the drawbacks of stakeholder engagement, most notably regulatory capture. Examining the explanatory factors of the number and type of stakeholder engagement helps to better specify the conditions under which such stakeholder arrangements are likely to yield positive outcomes or instead harm both the process and outcome of regulatory governance. ...
Article
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Stakeholder engagement is often considered an essential component of regulatory policymak-ing and governance. Our main aim in this paper is to explain variation in stakeholder engagement across regulatory trajectories. More specifically we aim to assess why some regulatory policymaking processes attract a larger and more diverse set of stakeholders, while others attract much smaller and more homogenous regulatory crowds. We build on a newly established dataset of primary data regarding stakeholder engagement in EU regulatory governance to test our assumptions. We find that both the salience and the number of different consultation instruments affect the density and diversity of stakeholder engagement, whereas the complexity of regulations seems to mainly affect the density of stakeholder engagement. The combination of both institutional and regulation-specific drivers of stakeholder engagement in regulatory governance yields relevant implications for the study of responsive regulation and the role stakeholders can fulfill in regulatory decision-making.
... Giving someone the cold shoulder is a well-known phrase, meaning to deliberately ignore someone. In this context, 'cold shouldering', as the name implies, is a strategy of holding others accountable by ignoring or excluding them if they do not conform to expectations or some rule(s) (Black, 2003). In our polycentric example, the SAPS employ (or threaten to employ) this strategy to motivate the CID Managing Body and private security to work towards a good relationship with them. ...
... Selfregulation may be very strongly motivated, especially for non-state entities that derive considerable legitimacy from their ability to show that they are accountable. These accountability developments constitute the core of what polycentric assemblages are meant to promote -sites by which innovative, 'smart' and decentred regulation happens in light of the inadequacies of a reliance solely on state-constituted and/or hierarchical regulatory systems (Black, 2003(Black, , 2008Braithwaite & Drahos, 2000;Gunningham, 2009;Gunningham & Grabosky, 1998;Jones, 2003;Walker, 2002). ...
Article
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This article will reflect on the multiple ways in which private security can, and is, being held responsible and accountable to the public (and other security providers), in formalised, polycentric, or nodal assemblages. Drawing on empirical research conducted on plural policing partnerships, the article will show that private security is influenced by market forces, but that this is part of an interwoven, layered, formal-informal system of accountabilities – most of which are bottom-up and relational, rather than top-down and legislated. In fact, drawing on the work of John Braithwaite, we show that horizontal or circular forms of accountability (or accountabilities) play a large role in aligning the private sector to the public interest or common good within pluralised environments.
... As our analysis will show, the interaction between GFSI and these different actors has developed for different reasons and in different ways, with different results. To critically discuss these findings, and to deepen the TGBI analytical framework, we draw on the concept of enrolment as developed by Black (2003). Regulatory enrolment is considered a strategy for linking actors possessing different regulatory capacities to enhance the capacity of both. ...
... GFSI and domestic state actors in the Netherlands, Canada and China have engaged in both formal and informal relations to discuss and implement the integration of transnational food safety schemes in public enforcement policies. To understand better why, how and with what effect these TGBIs emerged, we draw on the concept of regulatory enrolment as developed by Julia Black (2003). 16 At its core, regulatory enrolment is a strategy for linking actors possessing different regulatory capacities to enhance the capacity of both (Black 2003, p. 84). ...
... As our analysis will show, the interaction between GFSI and these different actors has developed for different reasons and in different ways, with different results. To critically discuss these findings, and to deepen the TGBI analytical framework, we draw on the concept of enrolment as developed by Black (2003). Regulatory enrolment is considered a strategy for linking actors possessing different regulatory capacities to enhance the capacity of both. ...
... GFSI and domestic state actors in the Netherlands, Canada and China have engaged in both formal and informal relations to discuss and implement the integration of transnational food safety schemes in public enforcement policies. To understand better why, how and with what effect these TGBIs emerged, we draw on the concept of regulatory enrolment as developed by Julia Black (2003). 16 At its core, regulatory enrolment is a strategy for linking actors possessing different regulatory capacities to enhance the capacity of both (Black 2003, p. 84). ...
Preprint
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Private actors have assumed an invaluable role in today’s global governance of food safety. One of the most prominent private actors in this domain is the Global Food Safety Initiative (GFSI), a non-profit industry-led organization that benchmarks private food safety standards with a view to coordinate, converge and ratchet up existing standards and enhance compliance with public food safety laws. In this chapter we discuss the unfolding interaction between GFSI and domestic state actors in the regulation of food safety. We offer an empirical account of how and to what extent national food safety agencies in Canada, China and the Netherlands have engaged with GFSI and its benchmarked schemes. We analyse these transnational business governance interactions (TBGIs) using the framework proposed by Eberlein et al (2014) and Wood et al (2015). We show that the interaction between GFSI and public agencies has developed for different reasons and in different ways, with different results. To critically discuss these findings, and to deepen the TGBI analytical framework, we draw on the concept of enrolment as developed by Black (2003). We argue that this concept adds to the TBGI framework a critical perspective on why and how certain actors link with each other, and with what results.
... Part of the existing literature suggests that private regulation started strengthening from the 1980s onwards as a result of the failure of (or retreat from) public authority in regulating pressing social and environmental challengesespecially those with a transnational or global charactereventually leading to a crowding out of public regulatory instruments by private regulation (Cutler et al. 1999;Bartley 2007;Vogel 2008). An alternative argument is that public authorities remain key not only in providing legitimacy to private regulation, but also in facilitating its compliance (Black 2003;Gale & Haward 2011;Foley 2013;Verbruggen 2013;Gulbrandsen 2014;Mills 2016). A main focus in existing work has been the interplay of government, civil society, and business (Avant et al. 2010) to understand how they compete and/or cooperate to shape rule systems and achieve legitimacy (Bernstein & Cashore 2007;Black 2008;Fransen 2012;Eberlein et al. 2014), with particular attention paid to the effects of alignment and misalignment of interests between industry and the state (Verbruggen 2013;Auld 2014;Gulbrandsen 2014;Mills 2016). ...
... This literature examines how public authorities can "steer" an existing variety of private and hybrid governance instruments to promote desired outcomes. Examples are Braithwaite and Drahos (2000) and Black (2003), who have variously employed the concept of "enrolment" for this purpose; Hale and Roger (2014), who have used the concept of "steering"; and Overdevest and Zeitlin (2014), who have applied the lenses of experimental governance to examine processes such as benchmarking. ...
Article
This article contributes to current debates on the potential and limitations of transnational environmental governance, addressing in particular the issue of how private and public regulation compete and/or reinforce each other – and with what results. One of the most influential approaches to emerge in recent years has been that of “orchestration.” But while recent discussions have focused on a narrow interpretation of orchestration as intermediation, we argue that there is analytical traction in studying orchestration as a combination of directive and facilitative tools. We also argue that a social network analytical perspective on orchestration can improve our understanding of how governments and international organizations can shape transnational environmental governance. Through a case study of aviation, we provide two contributions to these debates: first, we propose four analytical factors that facilitate the possible emergence of orchestration (issue visibility, interest alignment, issue scope, and regulatory fragmentation and uncertainty); and second, we argue that orchestrators are more likely to succeed when they employ two strategies: (i) they use a combination of directive and facilitative instruments, including the provision of feasible incentives for industry actors to change their behavior, backed up by regulation or a credible regulatory threat; and (ii) they are robustly embedded in, and involved in the formation of, the relevant transnational networks of actors and institutions that provide the infrastructure of governance. © 2017 JohnWiley & Sons Australia, Ltd
... This could involve evaluating how existing actors and instruments of regulation could function together better to promote high quality end-oflife care. It may also point to a need to create a new regulator or instruments (Black 2003), or to remove them if they are not improving the quality of end-oflife care (Oikonomou et al. 2019). A "clean slate" approach could be taken: while learning lessons from the past, existing structures are put aside to consider anew how best to regulate end-of-life care. ...
Article
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Existing regulation of end-of-life care is flawed. Problems include poorly-designed laws, policies, ethical codes, training, and funding programs, which often are neither effective nor helpful in guiding decision-making. This leads to adverse outcomes for patients, families, health professionals, and the health system as a whole. A key factor contributing to the harms of current regulation is a siloed approach to regulating end-of-life care. Existing approaches to regulation, and research into how that regulation could be improved, have tended to focus on a single regulatory instrument (e.g., just law or just ethical codes). As a result, there has been a failure to capture holistically the various forces that guide end-of-life care. This article proposes a response to address this, identifying "regulatory space" theory as a candidate to provide the much-needed holistic insight into improving regulation of end-of-life care. The article concludes with practical implications of this approach for regulators and researchers.
... Black (2003).78 For a discussion on the difficulty of assessing SARs' effectiveness, see, for instance, Bourton (2020), pp. ...
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The chapter analyses the AML regime in the online gambling market in the UK, focusing on the nature of its institutional setup and the evolution of its regulatory approach. The analysis questions which enforcement strategies and styles the sectorial regulator-the Gambling Commission-pursued under the overarching framework of risk-based regulation. The findings indicate two stages in the Gambling Commission's work one characterised by low deployment of responsive regulation coupled with an advisory (conciliatory) enforcement style, and the subsequent stage characterised by a shift towards greater use of responsive regulation and a more punitive enforcement style, which was also coupled with capacity-building enrolment of gambling operators through non-mandatory channels. After discussing the implications of the two approaches for the regime's performance, the analysis contextualises them against wider debates about the operation of risk-based regimes and conditions for successful operation of risk-based frameworks.
... Incentivised by potential reductions in capital requirements, this self-determination is conditional on adherence to specified criteria, described in the study as a 'disciplinarisation' process. Similarly, Black [49] describes the enrolment of the regulated system as central to the cooperative relationship between the regulator and the regulated in risk-based regulation. Mikes [50] describes this mode of regulation as 'coercive isomorphism', whereby entities have autonomy but are induced to conform to a standard. ...
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The central role of Value-at-Risk (VaR) within bank market risk regulation received significant criticism from financial media and government investigations into the events of the 2007–2009 financial crisis. Impending reform of bank market risk regulation under the Fundamental Review of the Trading Book (FRTB) demotes VaR, replacing it with a layered framework centred on expected shortfall (ES). However, many of these criticisms assume full integration of internal and regulatory market risk models and further, a linear relationship between risk models and regulatory capital. We examine bank practitioners’ perspectives and experienced realities to better understand the operational relationship between internal and regulatory market risk models, and between risk models and capital. This has important policy implications for the efficacy of the reforms to banking regulation, financial stability and navigating the dichotomy of private and public interests.
... europa. eu/ legal-conte nt/ EN/ TXT/? uri= CELEX: 52021 DC0188 (accessed 15 Nov 2021). 2 Black (2003). 3 Discussed in relation to banks' roles in monitoring sustainability impact in debt financing, such as in project finance, by means of implementing the voluntary Equator Principles, see https:// equat or-princ iples. ...
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This article argues that the regulatory steers in the recent EU Sustainable Disclosure and Taxonomy Regulations rely heavily on the outworking of market-based governance to meet public interest goals in sustainable finance. Hence, additional work in sustainability metrics development that informs the investment sector of sustainable performance in companies would be of key importance. This article argues that there remain gaps in EU leadership for governing metrics development, and suggests that EU-level governance can be designed appropriately, especially in a multi-stakeholder manner, for metrics development and in relation to key information intermediaries in this space.
... These mutual accountabilities consist of a variety of informal strategies of oversight that have evolved over the years. For example, borrowing the term from Black (2003), 'cold shouldering', as the name implies, is a strategy of holding others accountable by ignoring or excluding them if they do not comply with rules or expectations. As described by the head of the Cape Town Partnership (a public-private entity created as a managing body for the CIDs) in an interview in 2007: ...
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Using South African examples, this article explores how legitimacy is constituted amongst state and non-state actors in a highly pluralized context of limited statehood and the implications that this has for policing reform. In particular, it explores the means by which the legitimacy of the state and non-state is relational, co-produced, and co-dependent by focusing on two components of legitimacy: effectiveness and accountability. Given the contextual realities of policing legitimation in pluralized contexts, the article provides a critical appraisal of the challenges for policing reform.
... Traditionally, the regulatory state's claim to legitimation rests on a twopronged approach with insulation and expertise as the dual sources underpinning regulatory authority. The types of stakeholder engagement practices envisaged under these conditions were to strengthen the expertisedriven rationale of regulatory legitimacy with stakeholders offering input contributing to support the expertise underlying regulatory decisionmaking (Black, 2003;Coglianese et al., 2004) as well as to bolster procedural guarantees (Majone, 2000). Over time, engagement of stakeholders came to serve an ever-broadening array of rationales: as a sources of responsiveness (Abbott et al., 2017;Ayres & Braithwaite, 1992), coalition-building and reputation management (Arras & Braun, 2018;Busuioc & Rimkutė, 2020b;Carpenter, 2010;Carpenter & Krause, 2015;Moffitt, 2014), crucial for securing regulatory autonomy and authority in governance (Carpenter & Krause, 2015;Groenleer, 2009), or because of their potential of serving as regulatory intermediates throughout the different stages of the regulatory process (Brès et al., 2019). ...
Article
Stakeholder engagement practices are on the rise in regulatory governance. This raises an important question regarding implications for regulatory legitimacy. Engagement mechanisms are not by default legitimizing: Even when initiated to tap into an array of ‘benevolent’ desiderata, unless carefully balanced and built-for-purpose, they can become conduits for de-legitimation. Much like Schrödinger’s cat, neither dead nor alive, so too can stakeholder engagement be, in principle, a source of legitimation and de-legitimation. We suggest three distinct sets of explanatory factors to assess the (de-)legitimizing nature of stakeholder engagement: contextual determinants, the institutional design of specific engagement arrangements, and organizational rationales and individual preferences. Taken as a whole, the documented broadening and deepening of engagement in regulatory governance, points at a more encompassing transition of the regulatory state, away from its traditional legitimizing tenants. Unless carefully tailored, this transition risks eroding the distinguishing features that underpin the regulatory state’s very claim to authority. We highlight that addressing contemporary societal challenges and many of the regulatory conundrums associated with them calls simultaneously for independent expertise necessarily grounded in the much-needed (but carefully-balanced) audience support that sustains regulatory authority.
... See generally also Kershaw (2018), pp 877-893. 25 For a general discussion of enrolling market participants in regulatory systems, see Black (2003). 26 This includes, for example, institutional investors, investment banks and socially significant public companies. ...
Article
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The UK takeover regulatory landscape must be understood in the context of the interplay between enforcement of the rules and how investors behave in the face of those rules from a corporate governance perspective. From a legal standpoint, the courts have historically never been involved in the regulation of takeover transactions in the UK. However, section 955 of the Companies Act 2006 now enables the Panel on Takeovers and Mergers to seek court enforcement when a party fails to comply with the City Code on Takeovers and Mergers. Although a potentially useful mechanism to support the Panel in its administration of the Code, it was doubted whether the Panel would ever elect to rely on the provision as it involves exposing its regulatory monopoly to judicial scrutiny. The Scottish Court of Session decisions in Panel on Takeover and Mergers v. King mark the first time the Panel has chosen to rely on Section 955, in the context of enforcing the Mandatory Bid Rule. This paper analyses how this important rule is applied and enforced in practice, as well as the relationship between the Panel and the courts. The facts of the decisions also occasion consideration of an investment tactic that can be deployed to avoid triggering the Mandatory Bid Rule, namely what we define as ‘goldilocks control’.
... Different components of regulatory governance demand different capacities (Black 2003). Lack of capacity at any point along the governance chain can jeopardize the performance of a regulatory system (Wood et al. 2015, p. 357). ...
Book
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From agriculture to sport and from climate change to indigenous rights, transnational regulatory regimes and actors are multiplying and interacting with poorly understood results. This interdisciplinary book investigates whether, how and by whom transnational business governance interactions (TBGIs) can be harnessed to improve the quality of transnational regulation and advance the interests of marginalized actors. Exploring multiple sectors and issue areas, Transnational Business Governance Interactions presents new empirical and theoretical research from leading and emerging scholars and identifies obstacles to, and opportunities for, mobilizing TBGIs to enhance regulatory capacities, outputs and outcomes and to advance marginalized actors in transnational business governance. The prime readership for this work is an interdisciplinary audience of academics including scholars of law, business, environmental studies, international relations, political science, political economy and sociology. Because of its attention to practical strategies to harness governance interactions to enhance regulatory quality and advanced marginalized groups, the book will also be of interest to high-level participants in global business governance, including standards-setting bodies, certification bodies, auditors, trade associations, civil society organizations, social movement organizers, national regulators, overseas development agencies and international organizations.
... Different components of regulatory governance demand different capacities (Black 2003). Lack of capacity at any point along the governance chain can jeopardize the performance of a regulatory system (Wood et al. 2015, p. 357). ...
Chapter
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In what circumstances can transnational business governance interactions (TBGIs)—the myriad overlaps, intersections, conflicts, collisions and synergies amongst the actors and institutions involved in transnational regulation of business activity—be harnessed to enhance the quality of transnational regulation and advance the interests of marginalized actors? This chapter introduces the concept of transnational business governance interactions (TBGIs), summarizes the TBGI analytical framework and defines regulatory quality and marginalized actors. It proposes to investigate the relationship between TBGIs, regulatory quality and marginalized actors at three levels: regulatory capacities, outputs and outcomes. The chapter presents the plan of the book and summarizes the key messages of the chapters.
... For scholars trying to understand regulatory regimes, the general lesson is to be attentive to the ways in which private intermediary actors will shape the regime to reflect their own values and ends. At that general level, the lesson is not new; most studies of regulatory intermediaries and many studies of regulated entities have emphasized ways in which they coproduce regulation (Black 2003;Slayton & Clark-Ginsberg 2018). However, the existing literature generally treats this private influence as a headwind blowing against the success of the regulatory regime (however that success may be defined); the tailwinds are generally assumed to come, if they blow at all, from activist nongovernmental organizations (for an exception, see Meckling et al. 2015). ...
Article
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Most accounts of businesses and regulators depict adversarial relationships. In these accounts, businesses typically seek to avoid or limit public regulation or, alternatively, to distort it so it serves private rather than public ends. This article uses a study of the environmental consulting industry to explore a different set of relationships between businesses and public regulation. These consultants generally work for for‐profit companies, and they serve as regulatory intermediaries between businesses and government. Those dual roles raise concerns that environmental consultants, like many other businesses, will seek to subvert regulatory schemes or will serve as instruments of regulatory capture. While some evidence supports these concerns, interviews and documentary research also demonstrated widespread perceptions that consultants play two other roles. First, environmental consultants strive to operate as trusted facilitators of constructive relationships between regulators and regulated entities. Second, for combined reasons of profit motive and value‐based moral commitments, environmental consultants also strive to act as guardians and proponents of the public values underlying environmental regulation. These roles have implications for descriptive understandings of the functioning of regulatory regimes and for regulatory system design. Most importantly, in contrast to literature emphasizing the need to protect regulatory governance from private, for‐profit entities, these findings illustrate how for‐profit regulatory intermediaries can work to bolster regulatory governance.
... However, in a global, 'decentered' arena, where authority and resources are fragmented (Black, 2003), not all constellations are available to governments to the same extent. State authority and capacity, which may be necessary to invoke a regulatory shadow or offer support, are in short supply. ...
Article
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Political CSR has made great strides towards a better appreciation of the political involvement of corporations in global governance. However, its portrayal of the shifting balance between business and government in the globalized economy rests on a central, yet largely uncontested, assumption: that of a zero-sum constellation of substitution in which firms take on public responsibilities to fill governance gaps left by governments. This conceptual paper expands the political CSR perspective and makes three contributions to the debate on the political role of business and the role of government in global governance. First, it deconstructs the problematic assumptions underlying the zero-sum notion of governance gaps filled by corporations. Second, it offers a variable-sum mapping of how private and public authority interact in global governance where substitution is only one of four constellations. The mapping identifies ‘soft steering’ as a prominent mode of governments governing business conduct. Third, the paper theorizes ‘orchestration’, a ‘soft steering’ tool discussed in the global governance literature, from an organizational, corporate perspective. It identifies the mechanisms through which orchestration may address the barriers to corporate engagement with the public good and applies these mechanisms to the case of the Global Reporting Initiative.
... Instead, I will reflect on the observed developments. Starting from the idea of polycentric regulation and a regulatory space occupied by many different actors, the idea of regulatory enrolment (Black 2003) seems to be particularly helpful in analyzing the relations between public and private actors. Enrolment is the process by which an actor tries to link with another actor in order to enhance its own regulatory capacity in order to perform his own tasks better. ...
... 120 Its purpose is to assess whether the particular nature of fragmentation and hybridisation manifested by the regulatory system is appropriate: whether the 'right' actors are charged with the 'right' task, where 'right' is judged both in pragmatic terms (their effectiveness at achieving regulatory aims), and in normative terms (their legitimacy in performing their particular role). 121 Black's analysis focuses on the importance of identifying who the regulatory actors are and what their role is in regulatory systems. In this section, we examine the role of three non-state actors relevant to the SWP and the WH visa programme: horticulture industry associations, unions and labour hire intermediaries. ...
Article
The Australian horticulture industry, like its peers in most developed countries, faces significant labour supply challenges during the harvest season. Two regulatory initiatives seek to address this: the Seasonal Workers Programme and the second year extension on the Working Holiday visa. The latter has been far more widely used by horticulture employers, leading to a 'substitution effect' between the two visa schemes. This article indicates how the introduction of the second year visa extension for Working Holiday visa holders in 2005 has reshaped the horticultural labour market and constrained the ability of the Seasonal Workers Programme to fully succeed. This article identifies key and significant disparities between the regulation of the two visa schemes, which result in the production of two different types of horticultural workforces. Such disparities should be addressed and better understood in order to minimise the substitution effect and to develop more sustainable solutions to the endemic problems of labour supply and worker exploitation in the industry.
... Instead, I will reflect on the observed developments. Starting from the idea of polycentric regulation and a regulatory space occupied by many different actors, the idea of regulatory enrolment (Black 2003) seems to be particularly helpful in analyzing the relations between public and private actors. Enrolment is the process by which an actor tries to link with another actor in order to enhance its own regulatory capacity in order to perform his own tasks better. ...
Research
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Modern food governance is increasingly hybrid, involving not only government, but also industry and – to a lesser extent- civil society actors. In recent years we have observed new emerging relationships between public enforcement authorities and private food safety assurance schemes. A global survey of governmental food authorities (summer 2017) reveals that food authorities in thirteen countries take private food safety assurance schemes into account in their inspection policy, 27 do not. In this paper I discuss why countries do (not) collaborate with private certification programs and how they collaborate with private systems. Finally, the consequences will be discussed of incorporating private controls in governmental monitoring and enforcement policy. The integration of private certification in official controls could be a win-win situation for both parties as it adds up the capacities of both systems. Both public food agencies and private food programs could very well use the resources available to the other party. However, there are some potential risks. From a public interest perspective, the risks can be roughly divided into four categories: conflicts of interest, the capacity of private actors to perform adequate controls, the willingness of private actors to adequate control, and regulatory capture. Arguably, the role of public authorities will shift from direct inspections towards system controls and meta regulation. This may have an impact on the accountability and legitimacy of governmental food authorities.
... This is a concept which, as Major observes, is much misunderstood, implying as it does both less and more regulation (2012 (Braithwaite & Drahos, 2000b;Majone, 1994;Moran, 2001). Not only was regulation moved further away from the public sphere in this way, it was also 'de-­-centred' and reconfigured so as to include a far larger cast list of actors (Black, 2003). This is, manifestly, re-­- regulation, referred to as the 'second face of neoliberalism' (Major, 2012: 541 linked with to the oft-­-cited structural shift in banking from 'originate-­-and-­-hold' to 'originate-­-and-­-distribute' (Major, 2012 ...
Thesis
Extant studies of lobbying in the European Union (EU) by private actors have focused on the legislative arena: how such actors target the Commission, or the Parliament. These works have generally considered lobbyists as uniform transnational capitalist actors, seeking to extend the reach, or depth, of the single market. Recent advances in supranational institutional capacity have begun to create a ‘single European regulatory space’ (Levi-Faur, 2011), through which the EU now seeks to achieve market delivery. However, to date there has been little study of how private actors lobby this new institutional venue. Using the example of the European Banking Authority (EBA) – one of the regulatory institutions in this new arena – this thesis examines the patterns in lobbying behaviour. It takes the cases of British and German banks, and uses the notion of durable variations in domestic contexts to account for differences in their lobbying activities. This approach draws on the work of Hall and Soskice (2001), and posits that domestic financial systems and their associated regulatory regimes shape lobbying in the European regulatory arena. These features of the national landscapes condition banks’ holding, and deployment, of lobbying resources; and shape their beliefs about European bank regulation - meaning that banks engage essentially as national capitalist actors. The thesis uses a variety of qualitative data to investigate these activities and their roots. The findings show that banks’ lobbying behaviours can be seen to remain grounded in their national contexts; and in turn that the strength of these domestic institutional and ideational structures mean that a great deal of lobbying remains distinctly national, even where directed at a supranational venue. Targeting of the EBA is fragmented and contingent.
... the disaggregation of what regulation entails in functional terms, the identification of actors who are or might be involved in the regulatory system, an analysis of their regulatory capacity, relating that capacity to different regulatory functions, and an analysis of the interrelationships that arise between the actors in the regulatory system. 66 The components of this framework can be seen as "tasks", though not necessarily linear in application, which provide some indication on how a decentred model might work. The first task involves identifying and extracting the functions, or objectives, of anti-phoenix regulation. ...
Article
The prevention of fraudulent phoenix activity is an increasing issue for the Australian Government and the loss of taxation revenue that results from these arrangements can be significant. For this reason, the Australian Taxation Office (ATO) has played a major role in the development of anti-phoenix regulation and, in particular, the 2012 amendments to the director penalty regime seemed largely aimed at that issue. Typically however, the ATO will have two competing roles in the context of phoenix arrangements, being the primary collector of Australian taxation revenue and also a major creditor in the resulting corporate insolvency. Therefore, two key questions arise – how pervasive should the ATO’s collection powers be and to what extent should they be used to control fraudulent phoenix activity if the ATO is competing for funds against other creditors in the limited pool available. This article argues that there are several competing policy imperatives relevant to controlling fraudulent phoenix activity, and that legislative responses should consider the ATO’s role as both creditor in insolvency and collector of taxation revenue. Furthermore, the roles of the ATO and ASIC in relation to combatting phoenix activity need to be clarified. This article suggests that a framework based on decentred regulation might provide a better approach.
... The study of intermediaries is essential to understanding regulatory governance (Shearing and Stenning 1987;Scott 2004;black 2003Levi-faur 2011a;Kostka 2016), so we consider the diverse roles and functions of regulatory intermediaries, including their strategies and governance technologies, and both their positive and potentially negative impacts on regulatory outcomes: their "brighter and darker sides" (van der heijden, this volume). Thus, this article contributes to a number of growing literatures, including those on certification and codes as a regulatory technology (Meidinger 2003;bartley 2011;Starobin and Weinthal 2010;O'Rourke 2003;Loconto and busch 2010;Toffel, Short, and Ouellet 2015), global regulatory chains (Gereffi, Garcia-Johnson, and Sasser 2001;Nadvi 2008;Nadvi and Raj-Reichert 2015;van der ven 2015), corporate social responsibility (bernstein and cashore 2007), and meta-regulation (coglianese and Lazer 2003;Gilad 2010). ...
Article
Full-text available
Regulation is typically conceived as a two-party relationship between a rule-maker or regulator (R) and a rule-taker or target (T). We set out an agenda for the study of regulation as a three- (or more) party relationship, with intermediaries (I) at the center of the analysis. Intermediaries play major and varied roles in regulation, from providing expertise and feedback to facilitating implementation, from monitoring the behavior of regulatory targets to building communities of assurance and trust. After developing the basic regulator-intermediary-target (RIT) model, we discuss important extensions and variations of the model. We then discuss the varieties of regulatory capture that may appear where intermediaries are involved.
... We draw attention to another alternative theory that appears more responsive to regime complexity and regulatory change than the RIT model, namely, the theory of "regulatory enrollment" developed by Julia Black (2003). This theory, much like the RIT model, presupposes that the capacity for regulatory governance is dispersed among a variety of actors, none of which holds such a central position in the regulatory arena that it can unequivocally determine outcomes. ...
Article
In this article, we discuss the value of the RIT model for analyzing complex governance relationships in the regulation of food safety. By exploring food safety regimes involving the European Union and the Global Food Safety Initiative, we highlight the diverse and complex relationships between the actors in public, private, and hybrid regimes of food safety regulation. We extend the basic RIT model to better fit the reality of (hybrid) governance relationships in the modern regulation of food safety, arguing that the model enables disaggregation of these regimes into analytical subunits or “regulatory chains,” in which each actor contributes to and affects the regulatory process. Finally, we critically assess what the RIT model adds to alternative theoretical approaches in identifying, mapping, and explaining the different roles that actors play vis-à-vis others in regulatory regimes.
Article
The book studies emergence and consolidation of voluntary sustainability standards (VSS); private standards defining sustainability-related product features. The book takes stock of their success and their potential in mediating between economic and non-economic concerns of global production. Despite their private and voluntary nature, VSS generate profound consequences for the producers seeking certification, for the consumers purchasing certified products, and for others affected by their standards. VSS are used by public authorities in the EU as a functional complement to public measures regulating global value chains. At this juncture of market proliferation and public use of private regimes, this book studies how public authority can control, coordinate and review VSS. It studies how the regulation of VSS could unfold through substantive and procedural legal requirements in the domain of European Union law and World Trade Organisation law, as well as through the incentives offered by VSS employment in public measures.
Chapter
The globalization of capital markets since the 1980s has been accompanied by a vigorous debate over the convergence of corporate governance standards around the world towards the shareholder model. But even before the financial and economic crisis of 2008/2009, the dominance of the shareholder model was challenged with regard to persisting divergences and national differences in corporate law, labor law and industrial relations. This collection explores this debate at an important crossroads, echoing Karl Polanyi's famous observation in 1944 of the disembeddedness of the market from society. Drawing on pertinent insights from scholars, practitioners and regulators in corporate and labor law, securities regulation as well as economic sociology and management theory, the contributions shed important light on the empirical effects on the economy of the shift to shareholder primacy, in light of a comprehensive reconsideration of the global context, policy goals and regulatory forms which characterize market governance today.
Article
Regulatory sandboxes have become the latest development in regulatory reform, starting first in financial regulation and now expanding to other sectors. While sandboxes offer notable potential benefits for managing emerging technologies, achieving desirable policy outcomes with this novel regulatory instrument also comes with technical and political challenges. This article offers a framework to characterize regulatory sandboxes in any sector, involving a blend of (1) approval regulation with broad‐based standards, (2) restricted discretion by the regulator for specific norms, (3) process‐oriented regulation, (4) an outcomes‐orientation, and (5) structured regulator–regulatee information sharing or dialogue. Using this model, the article outlines issues in compliance and legitimacy, including in trust and accountability, responsive enforcement, the politics of participation, and post‐sandbox oversight. The article concludes by calling for greater scrutiny when considering implementing a sandbox instrument, with attention to sector‐specific concerns, and offering directions for empirical evaluation of regulatory sandboxes.
Chapter
The chapter analyses the AML regime in the online gambling market in the UK, focusing on the nature of its institutional setup and the evolution of its regulatory approach. The analysis questions which enforcement strategies and styles the sectorial regulator—the Gambling Commission—pursued under the overarching framework of risk-based regulation. The findings indicate two stages in the Gambling Commission’s work one characterised by low deployment of responsive regulation coupled with an advisory (conciliatory) enforcement style, and the subsequent stage characterised by a shift towards greater use of responsive regulation and a more punitive enforcement style, which was also coupled with capacity-building enrolment of gambling operators through non-mandatory channels. After discussing the implications of the two approaches for the regime’s performance, the analysis contextualises them against wider debates about the operation of risk-based regimes and conditions for successful operation of risk-based frameworks.KeywordsGambling regulationUKRisk-based regulationEnforcement styleEnforcement strategyResponsive regulation
Article
Paternalistic forms of regulation for the retail investment market have been gradual and restrained, even though significant gaps exist between investors’ needs and market-based provision. As ordinary citizens reckon with a variety of savings needs and become financial citizens responsible for their own financial welfare provision, financial health is not merely an issue of individual fortunes but a social need. Adverse financial welfare consequences can at scale become a social issue, as is reflected in the social demands and critique entailing from the collapse of London and Capital Finance in the UK. The need for more regulatory paternalism goes beyond preventing mis-selling, and the outworking of welfare beyond point-of-sale remains relatively unconsidered. Post-sale welfare is, however, increasingly recognised for consumer credit and is slower to catch on in relation to savings needs and investments. This paper advocates that the regulator should not remain ambivalent about the need for more paternalistic interventions. Paternalistic protection is not only about shifting more burdens to the industry but also about the provision of public goods where there are standardised baseline needs for retail investors. This paper unpacks the roles of both the public and private sectors in addressing retail investors’ financial welfare needs.
Article
This article theorizes prosecutorial decision-making using an ecological model which proposes that prosecutorial outcomes are shaped by four inter-related and intersecting systems: (a) macro-level, or societal, factors such as crime rates (b) meso- and exo-level factors, such as organisational culture, (c) micro-level factors, such as interactions between prosecutors, and (d) individual-level factors, such as victim and perpetrator characteristics. While the model is designed to explain prosecutorial decision-making in general, it also accounts for the paradoxical trends observed in the US since the financial crash in 2008 when the number of prosecutions fell despite a heating up of political rhetoric around white-collar crime. The utility of the model is explored through a critical reading of the extant literature and an analysis of relevant qualitative and quantitative data. The discussion shows that, while each set of factors shapes prosecutorial outcomes to some extent, two explanations are particularly convincing. First, the data suggest that the dip in prosecutions may be explained by prosecutors focusing limited resources on more serious (albeit fewer) cases. Second, delays in case processing emerged sometime between 2011 and 2012 due to bottlenecks in the criminal justice process and coincided with the fall in prosecutions. While the roles played by some of the factors considered in this article are already well-known, the contributions of systemic delays and the shift towards more resource intensive cases represent new findings.
Article
This paper contributes to the debate on the adequate regulatory treatment of non-bank financial intermediation (NBFI). It proposes an avenue for regulators to keep regulatory arbitrage under control and preserve sufficient space for efficient financial innovation at the same time. We argue for a normative approach to supervision that can overcome the proverbial race between hare and hedgehog in financial regulation and demonstrate how such an approach can be implemented in practice. We first show that regulators should primarily analyse the allocation of tail risk inherent in NBFI. Our paper proposes to apply regulatory burdens equivalent to prudential banking regulation if the respective transactional structures become only viable through indirect or direct access to (ad hoc) public backstops. Second, we use insights from the scholarship on regulatory networks as communities of interpretation to demonstrate how regulators can retrieve the information on transactional innovations and their risk-allocating characteristics that they need to make the pivotal determination. We suggest in particular how supervisors should structure their relationships with semi-public gatekeepers such as lawyers, auditors and consultants to keep abreast of the risk-allocating features of evolving transactional structures. Finally, this paper uses the example of credit funds as non-bank entities economically engaged in credit intermediation to illustrate the merits of the proposed normative framework and to highlight that multipolar regulatory dialogues are needed to shed light on the specific risk-allocating characteristics of recent contractual innovations.
Article
This article aims to theorise corruption from a “macro” perspective. It elaborates upon a range of social sciences literatures, notably from criminology and political sciences, that have discussed various “macro”-level factors contributing to corruption, including market characteristics. Its most distinct contribution to the literature is in importing the concept of “systemic risk” – thus far chiefly examined in the financial regulation literature – to the analysis of corruption. It draws on the financial literature on systemic risk and macro-prudential regulation and supervision. In so doing, it elaborates upon concepts such as “network” and “contagion” as to theorise the effects of corruption on resource allocation. This is supplemented by reference to the legal canon of literature on market regulation.
Chapter
More and more environmental cases are being heard and decided by international courts and tribunals which lack special environmental competence. This situation raises fundamental questions of legitimacy of the environmental practice of international courts. This book addresses inter alia questions of who has legal standing to bring an environmental claim before an international court, on which legal norms is the case decided and whether judges have the necessary expertise to adjudicate environmental cases of often complex nature. It analyses which challenges international courts face, which possibilities they have and which advances international judicial practice has been able to make in protecting the environment. Through the prism of legitimacy important insights emerge as to whether international courts and tribunals are fit for addressing some of the most pressing global challenges of our time.
Article
Since the 1980s, influential participants in the niche over-the-counter (OTC) derivatives markets have sought to encourage contractual standardization in the industry to mitigate the potential for unforeseen legal interruptions and ensure the enforceability of OTC derivatives contracts. The International Swaps and Derivatives Association (ISDA), a trade association and standard-setter, has spearheaded this effort; resulting in the creation and sustenance of a highly successful transnational private regulatory regime (TPRER). Most notably, ISDA has generated a standardized boilerplate contract for OTC derivatives, known as the ‘ISDA Master Agreement’. However, the TPRER within which the ISDA Master Agreement operates displays some intriguing features and paradoxes. Chief amongst these paradoxes is that, while this TPRER appears at first glance to be highly legalistic and formal, indications are that rates of formal litigation between members of the regulatory regime have traditionally been low relative to the size of the market (the total notional amount of OTC derivatives contracts outstanding at the end of 2011 was estimated at US$648 trillion).
Book
Cambridge Core - Public International Law - Regulatory Integration Across Borders - by Rebecca Schmidt
Article
The question of effective law has been studied in many fields of research, such as philosophy and sociology of law, law and economics, public policy and behavioural sciences. This article aims to treat it as a genuine administrative law issue which is currently having a significant impact on administrative procedures, especially affecting the way in which rules are adopted and implemented. Furthermore, the article attempts to reconcile conflicting views in existing literature on the meaning of effective law and on which factors lead to effectiveness by proposing an integrated approach: starting from a regulatory perspective it considers both traditional determinants of effectiveness, ie compliance and enforcement, as well as the emerging aspect of outcomes, focused on the idea that a rule can be defined as effective when its desired effects have been achieved and the public interest which justifies the rule has been safeguarded without producing unwanted or disfunctional consequences. Far from being simply a decisional problem for institutions (arising in legislative, regulatory and administrative procedures), effectiveness calls for a “steering administration” and represents a criterion for decision-making, since expected effectiveness can be used in the logic of “whether” and “how” institutions should arrive at decisions.
Article
Full-text available
This article provides a comprehensive empirical analysis of the composition, development and use of the List of World Heritage in Danger (IDL) under the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage. The statutory records of this Convention have been coded in order to generate an overview of the development and use of the IDL between 1978 and 2017. The quantitative data was further developed by reference to World Heritage and transnational law literature. A key finding of this article is that the IDL serves a dual purpose in regulation: firstly, as a ‘fire alarm’ to alert the international community of imminent dangers at World Heritage sites; secondly, as a non-compliance procedure used for ‘naming and shaming’ states that breach the rules. The findings in this article have relevance for heritage scholars and policy makers concerned with the governance of World Heritage as well as those with a broader interest in non-compliance procedures under transnational environmental law.
Article
Regulatory networks are increasingly important actors in multi-level systems of human rights governance. Yet we know little about the role that domestic networks play as intermediaries or about the strategies they use to integrate sub-national human rights institutions to ensure compliance at the local level. We draw on the theoretical literature on orchestration to conceptualise network governance and propose a new intermediary for the human rights governance, the multi-level network, which operates inside one country. We apply this theoretical model to the case of a multi-level network operating at the domestic level in the United Kingdom – Northern Ireland Human Rights Commission, Equality and Human Rights Commission, and Scottish Human Rights Commission. We discuss how the three commissions use the tools of managerial stewardship to facilitate intra-network collaboration and how they engage in hierarchical stewardship to gain access to international networks and take on a leadership role globally and regionally.
Article
Over the last decade complexity has impaired financial regulators’ and supervisors’ ability to cope with informational asymmetries, moral hazards and other market failures. Recent regulatory responses have been to include external auditors in the range of “gatekeepers” and “watchdogs” that serve regulatory objectives. On the other hand, the compliance function gained greater prominence as a form of internalised law enforcement, being increasingly seen as facilitating the achievement of public regulatory needs in maintaining the safety and soundness of financial institutions. Yet, uncertainty has pervaded the issue of what modes of interaction supervisors, compliance and external auditors should be subject to. International experience and anecdotal evidence show, in fact, that the current informal, discretion-based, relationship between such gatekeepers brings about risks of knowledge fragmentation and ambiguity, calling for better gathering and use of “gatekeepers’ knowledge”. The objective of this article is to address and rectify problems of multiple centres of knowledge construction, by approaching questions pertaining to the interaction between the “internal” and “external” gatekeepers. A primary contribution of this article is to examine this problem by reconciling the strand of research concerning multiple gatekeepers´ liability and the developing legal scholarship on compliance as a delegated form of external enforcement. The explanatory nature of multiple gatekeepers’ liability is twofold: first, it contributes in emphasising the complexity stemming from the interactions between multiple gatekeepers; second, it offers a solid working hypothesis to detect the market failures that can arise from such complexity, namely relating to fragmentation – and construction – of knowledge.
Chapter
The illegal use of pesticides in China has increasingly produced adverse effects on human health and environmental sustainability.
Article
This article examines why and how European Union agencies involve non-state stakeholders – such as non-governmental organizations (NGOs), business associations or trade unions – via three access instruments: public consultations; stakeholder bodies; and representation in management boards. We assess how the use of these instruments varies across agencies, and how they are linked to different motivations driving the demand for stakeholder participation. We present two alternative sets of hypotheses, first focusing on agencies’ need for information, organizational capacity and reputation, and second, considering stakeholder involvement as an instrument of legislative control. We draw on a new dataset of stakeholder involvement practices of the full population of EU agencies, compiled via document analysis and interviews. Our findings indicate that stakeholder involvement is a double-edged sword, contributing to agency accountability and control, but with an inevitable risk of dependence on the regulated industry.
Article
Full-text available
Overlaps and interactions among diverse legal rules, actors and orders have long preoccupied legal scholars. This preoccupation has intensified in recent years as transnational efforts to regulate business have proliferated. This proliferation has led to increasingly frequent and intense interactions among transnational regulatory actors and programs. These transnational business governance interactions (TBGI) are the subject of an emerging interdisciplinary research agenda. This paper situates the TBGI research agenda in the broader field of transnational legal theory by presenting a critical review of the ways in which legal scholars have addressed the phenomenon of governance interactions. Legal scholars frequently recognize the importance of transnational governance interactions, but their accounts are tentative and incomplete for the most part. Scholars bring varying — often sharply divergent — theoretical, methodological and normative perspectives to bear on the issue. Some scholars focus on rule formation, others on monitoring or adjudication. Some investigate cooperation and convergence, others conflict and competition. Some examine interactions within a particular organization or program, others among programs or even between entire normative orders. Some emphasize description or explanation, others evaluation or prescription. In short, while understanding intersections among the multiple sites, scales and instances of law is a central concern of transnational legal scholarship, the picture that emerges is incomplete and fragmented.
Article
Full-text available
Disciplines engaged in governance studies have increasingly recognised the pluralistic nature of governance practices, involving both the state and non-state operating as auspices and providers in local and global settings. Security governance developments, in particular, have resulted in security provision being undertaken outside of state processes by the non-state in new power formations. Drawing on the work of the Ostroms and adopting a nodal analysis, this paper locates, within this context, the widespread emergence of ‘Improvement Districts’ as a new authority in hybrid, polycentric security governance arrangements. The paper seeks to highlight the process by which Improvement Districts are created and organised; how they assert authority on public spaces and how they impact on security networks. The main argument is that Improvement Districts constitute a site in which there are multiple, shifting sites of authority and that this has implications for security provision in terms of effectiveness, regulation and power.
Article
Full-text available
Enforcing Transnational Private Regulation – A Comparative Analysis of Advertising and Food Safety by Verbruggen Paul Cheltenham: Edward Elgar, 2014, 328 pp. € 133,93; Hardback - Volume 6 Issue 4 - Tatjana Jovanic
Article
Full-text available
It is widely accepted that transboundary pollution problems require international co-operation for their solution, because many countries suffer the effects of such degradation and no country is unilaterally capable of managing the issue. While most environmental issues share these characteristics, which inhibit their resolution internationally, these issues are really little different from other global issues involving ‘common property resources’ — for example, trade and security. In all of these matters, national leaders are usually averse to serious co-operative efforts because of their doubts about reciprocity and verification, as well as common political antipathies among states.1 While these problems appear to reflect some mutual interests — all countries are affected by environmental degradation and a unified response is universally preferable to a patchwork of disjointed efforts — enduring and profound differences of interest impede co-operation. Differences about who pays, states’ unwillingness to forego short-term economic welfare and other distributional disagreements typically inhibit the formation of strong collective arrangements. Environmental issues are little different from the type of zero-sum bargaining efforts with which students of international relations are so familiar. Further, many less developed countries (LDCs) view efforts by the developed world to promote environmental protection as duplicitous efforts to retard economic growth in the Third World.2 In short, mutual interests are actually quite weak, and countries are often reluctant to co-operate unless they are certain that the protection costs will be equally distributed.
Article
Full-text available
This article addresses three basic analytical questions: what is 'decentring regulation', what is 'self regulation' and how does it fit in the decentring analysis, and what meaning is given to 'regulation' to allow it analytically to be 'decentred' - how do we know 'decentred regulation' when we see it? Decentring is a term which is often used to encompass a number of notions, and has both positive and normative dimensions. It is used to express the observation that governments do not, and proposition that they should not, have a monopoly on regulation and that regulation is occurring within and between other social actors: there is 'regulation in many rooms'. Decentring is also part of the globalisation debate on the one hand, and of the debate on the developments of mezzo-levels of government (regionalism, devolution, federalism) on the other. Decentring is also used in a positive sense to describe the consequence of a particular analysis of social systems, in which politics and administration are, like law or economics, are described as being self referentially closed sub-systems of society, incapable of observing other systems except through their own distorted lenses; decentring is thus the removal of government and administration from the conceptual centre of society. Finally, developing from these observations (and mixing metaphors), decentring can be used, positively and normatively, to express 'de-apexing': the removal of the state from the conceptual hierarchy of state-society, and the move to a heterarchical relationship in which the roles of governors and governed are both shifting and ill-defined. The themes of 'decentring' are reflected in a changed understanding of regulation. In that changed understanding, self regulation plays a particular role both in practical policy debates and in more conceptual discussions. The role ascribed to self regulation, however, differs quite fundamentally in those debates. For some self regulation is the solution to the limits of 'centred' regulation; for others it is the challenge that has to be addressed: regulation of self regulation is the new challenge. The prescription is for governments to regulate self regulation in a 'post regulatory' way. But what conception of 'regulation' is thereby entailed? The article deconstructs the notion of 'regulation' and attempts to build an understanding of 'regulation' that can withstand 'decentring'.
Chapter
On the basis of interviews with regulatory agencies and business firms in the United States, we outline three implicit “theories” of why business firms violate the law-economic calculation, principled disagreement, and incompetence. Each gives rise to a different emphasis in enforcement-deterrence, negotiation, and education. Enforcement based on any single theory of noncompliance is shown to be counter-productive when violations occur for one of the other reasons. Flexible enforcement, based on the analysis of the specific cause of each particular violation, is inhibited by technical, bureaucratic and political contraints.
Article
This is a review of Gunter Teubner's book.
Article
What is the status of the human services integration movement? Born in the 1960s, efforts at human services integration (SI) seemed to subside during the late 1970s and early 1980s. Robert Agranoff demonstrates that the SI movement is alive and flourishing in a variety of forms throughout the country. Contemporary SI efforts are more modest and concentrated, but they share a common feature-a framework-which Agranoff presents in this article. Providing many examples of current SI programs, Agranoff ends by stressing the challenge that the movement poses for public administration. Central to that challenge is the need to adopt a new paradigm that replaces the old emphasis on single organizational structures with a "transorganizational management" perspective.
Article
The abstract for this document is available on CSA Illumina.To view the Abstract, click the Abstract button above the document title.
Article
This article discusses the relationship between the new British literature on policy communities and the older US sub-government approach. It notes the importance of the difference between stable and ad hoc networks, and points to the need to develop further a range of types of policy-making structures.
Article
H.L.A. Hart's The Concept of Law is the most important and influential book in the legal positivist tradition. Though its importance is undisputed, there is a good deal less consensus regarding its core commitments, both methodological and substantive. With the exception of an occasional essay, Hart neither further developed nor revised his position beyond the argument of the book. The burden of shaping the prevailing understanding of his views, therefore, has fallen to others: notably, Joseph Raz among positivists, and Ronald Dworkin among positivism's critics. Dworkin, in particular, has framed, then reframed, the conventional understanding, not only of Hart's positivism, but of the terms of the debate between positivists and him. While standing on the sidelines, Hart witnessed the unfolding of not only a lively debate between positivists and Dworkin, but an equally intense one among positivists as to positivism's (and his) core claims. The most important debate has been between so-called inclusive and exclusive positivists: a debate as much about Hart's legacy as about the proper interpretation of legal positivism.
Article
Following publication of the government’s proposals for a statutory framework of Best Value, and the introduction of regulations increasing the flexibility of CCT pending its abolition, this paper examines the relationship between the compulsory regime and its likely successor. First, the paper suggests that the Best Value frame-work is likely to impose a range of regulatory, monitoring and enforcement constraints similar in effect to the formal requirements that operate under CCT. Continuity with Conservative policy will be reinforced practically through transitional arrangements for the gradual abolition of CCT and the phased introduction of its replacement. Second, the paper argues that contracting is likely to continue to have a significant role under the new regime as the natural adjunct to the voluntary competitive processes that will be the preferred management tools for securing improvements in service performance. Open tendering and public-private sector partnership arrangements, both of which imply contractual governance, are given explicit priority in the consultation document over benchmarking, performance indicators and other comparative public management mechanisms. Third, the paper argues that local authorities are likely to want to retain and develop contracting arrangements that potentially permit a degree of control over service provision that might not be available were more radical service-providing alternatives to be adopted, involving the complete transfer of functions outside the public sector and/or their vesting in independent companies. Finally, the paper assesses the transition from CCT to Best Value from the theoretical perspective of responsive and reflexive regulation. Following a brief account of the reflexive failures of CCT, the paper argues that, although the Best Value framework is characterized by inherently reflexive processes involving self-review, consultation and standard-setting, its relative success is likely to depend ultimately both on the tightness with which legislation is drafted and on the manner of its practical interpretation, implementation and enforcement.
Article
Incl. bibliographical notes and references, index, biographical notes on the contributors
Article
Why does regulation vary so dramatically from one area to another? Why are some risks regulated aggressively and others responded to only modestly? Is there any logic to the techniques we use in risk regulation? These key questions are explored in The Government of Risk. This book looks at a number of risk regulations regimes, considers the respects in which they differ, and examines how these differences can be explained. Analysing regulation in terms of 'regimes' allows us to see the rich, multi-dimensional nature of risk regulation. It exposes the thinness of society-wide analyses of risk controls and it offers a perspective that single case studies cannot reach. Regimes analysis breaks down the components of risk regulation systems and shows how these interact. It also shows how different parts of the same regime may be shaped by different factors and have to be understood in quite different ways. The Government of Risk shows how such an approach is of high policy relevance as well as of considerable theoretical importance. Available in OSO: http://www.oxfordscholarship.com/oso/public/content/politicalscience/0199243638/toc.html
Article
This article has two aims. First, we develop a dialectical model of the role that policy networks play in any explanation of policy outcomes. Our model is based upon a critique of existing approaches and emphasizes that the relationship between networks and outcomes is not a simple, unidimensional one. Rather, we argue that there are three interactive or dialectical relationships involved between: the structure of the network and the agents operating within them; the network and the context within which it operates; and the network and the policy outcome. Second, we use this model to help analyse and understand continuity and change in British agricultural policy since the 1930s. Obviously, one case is not sufficient to establish the utility of the model, but the case does illustrate both that policy networks can, and do, affect policy outcomes and that, in order to understand how that happens, we need to appreciate the role played by the three dialectical relationships highlighted in our model.
Public Law and Private Finance: Placing the Private Finance Initiative in a Public Law Frame
  • M Freedland
M. Freedland, "Public Law and Private Finance: Placing the Private Finance Initiative in a Public Law Frame" [1998] P.L. 288;
The Regulatory Craft: Controlling Risks, Solving UKPL 2003, Spr, 63-91 FOR EDUCATIONAL USE ONLY Page 23
  • K Sparrow
K. Sparrow, The Regulatory Craft: Controlling Risks, Solving UKPL 2003, Spr, 63-91 FOR EDUCATIONAL USE ONLY Page 23
Government and Control
  • N Rose
N. Rose, "Government and Control" (2000) 40
What is Regulation? A Reply to Julia Black's 'Critical Reflections on Regulation
  • D. Kingsford Smith
Australian Journal of Legal Philosophy 1 and D. Kingsford Smith, "What is Regulation? A Reply to Julia Black's 'Critical Reflections on Regulation"' (2002)
The Regulatory Craft: Controlling Risks, Solving Problems and Managing Compliance
  • K Sparrow
K. Sparrow, The Regulatory Craft: Controlling Risks, Solving Problems and Managing Compliance (Brookings Institute, Washington DC, 2000);
Regulatory Precision
  • C S Diver
C.S. Diver, "Regulatory Precision", in K. Hawkins and J.M. Thomas, eds, Making Regulatory Policy (Pittsburgh, 1989);
  • Greene
Greene, Global Environmental Change and International Relations (1992);
1995) and for general discussion J. Black
  • P Miller
  • N Rose
P. Miller and N. Rose, "Governing Economic Life" (1990) 19 Economy and Society 1. In the regulatory context see M. Hajer, The Politics of Environmental Discourse (Oxford University Press, 1995) and for general discussion J. Black, "Regulatory Conversations" (2002) 29(1) J.L.S. 163.
Talking About Regulation
  • J Black
J. Black, "Talking About Regulation" [1998] P.L. 77.
Our New Approach to Risk-Based Regulation: What Will be Different for Firms?
  • M Foot
M. Foot, "Our New Approach to Risk-Based Regulation: What Will be Different for Firms?", www.fsa.gov.uk/pubs/speeches/sp69.html (undated).
City Body Surveys Views on Work of Regulator
FN80. "City Body Surveys Views on Work of Regulator" Financial Times, June 23, 2002.
Policy Networks: An Overview" in Kickert
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