Orchestration as a form of public action: The EU engagement with voluntary sustainability standards

• Author: Enrico Partiti
• Published date: 01 January 2019
• Date: 01 January 2019
• DOI: http://doi.org/10.1111/eulj.12299

ORIGINAL ARTICLE

Orchestration as a form of public action: The EU

engagement with voluntary sustainability

standards

Enrico Partiti*

Abstract

EU authorities have come to engage with transnational private standards in the domain of

sustainability in forms which are different from the traditional interplay based on agency relations

and incorporation by reference. This phenomenon is evident in the domain of global value chain

sustainability where the employment of voluntary sustainability standards (VSS) is permitted in

certain EU measures. This contribution depicts the main features of orchestration as a distinct form

of public action involving transnational private regulation. It lays down the reasons underpinning

public ‘use’of forms of public authority, it highlights the potential for orchestration in publicising

transnational private rules and it exposes the hidden dynamics stemming from the interplay between

public and private rules. It discusses the conditions under which orchestration can enhance the

effectiveness of public measures, and how orchestration can transform transnational private regimes

by steering their substance and procedures.

1|INTRODUCTION

The informal reallocation of regulatory authority towards private actors is increasingly evident at the transnational

stage in the case of sustainability, as voluntary sustainability standards (VSS) aptly illustrate.

1

In a host of issue areas

ranging from forestry to fishery, from biofuels to clothing, and from labour practices to jewellery, VSS define and cer-

tify characteristics connected to sustainability features of products. Producers voluntarily join such standards and

have their products certified, under the mounting pressure of so‐called ‘responsible consumerism’and a growing

institutionalisation of ‘corporate social responsibility’(CSR) practices. Private actors such as companies, retailers con-

sortia and non‐governmental organisations are behind these schemes.

2

Generally, transnational private regulatory

*Tilburg University, Tilburg, the Netherlands. The author would like to thank Antoine Duval, Augustí n José Menéndez, Harm Schepel

and the anonymous reviewers for their insightful comments and feedbacks.

1

For an overview, see A. Marx and J. Wouters, ‘Competition and Cooperation in the Market of Voluntary Sustainability Standa rds’,in

P. Delimatsis (ed.), The Law, Economics and Politics of International Standardisation (Cambridge University Press, 2015), 215–248.

2

K.W. Abbott and D. Snidal, ‘Strengthening International Regulation through Transnational New Governance: Overcoming the

Orchestration Deficit’(2009) 42 Vanderbilt Journal of Transnational Law, 501.

Received: 13 June 2017 Revised: 9 October 2018 Accepted: 11 October 2018

DOI: 10.1111/eulj.12299

94 © 2018 John Wiley & Sons Ltd. Eur Law J. 2019;25:94–117.wileyonlinelibrary.com/journal/eulj

regimes have been established in domains where limited, or less defined, public rules could be found.

3

In some sec-

tors, VSS have thus been able to play an important gap‐filling role at the transnational stage, as they brought about

increased legalisation and a clear allocation of rights and responsibilities between market actors.

4

While this shift in

regulatory authority took place in the lack of formal State delegation, States have to a large extent created the con-

ditions for private regimes to thrive.

5

Transnational private regulators possess incomplete forms of authority, and are thus often forced to cooperate

to compensate for their authority and legitimacy deficits.

6

A pattern of cooperation between transnational private

regulators and public authority is clearly emerging in the EU with respect to VSS. EU public authorities have come

to exploit the regulatory capacity of transnational private regulatory regimes, with the potential to simultaneously

exert considerable influence over their substance and procedures, albeit in unconventional manners. This phenome-

non is consistent with a position that frames the role of the State in regulation as shifting towards that of a facilitator

and a coordinator engaging with several other actors.

7

Also more recent literature on regulatory orchestration high-

lights the emergence of indirect forms of public institutional engagement with regulatory actors at different levels,

and has discussed its preconditions and modalities.

8

Orchestration as a form of public action mobilises the voluntary

participation of intermediaries in the regulatory process in order to address a target in the pursuit of public goals.

Recent research on regulatory intermediaries delved deeper into the consequences of orchestration by focusing on

the relation between public bodies and regulatory intermediaries, i.e. those often private actors which mediate

between regulator and target in the regulatory process. Intermediaries play a crucial role in implementation and

enforcement by bringing expertise and capacity, but also operate on the basis of their private interests. Proper selec-

tion of the regulatory intermediary is thus fundamental.

9

The risk for public authority is the association to regimes

whose configuration of power between private actors favours a specific group (businesses) by excluding certain ben-

eficiaries of the regimes from standard‐setting and standard‐governance.

10

Taking stock of the ever‐increasing EU engagement with private regulators, this paper illustrates the public inter-

play with VSS, transcending the classic categories of delegation and incorporation by reference, and its impact on

public and private regimes. Against the framework provided by literature on transnational private regulation, and in

particular its connection and interplay with public regulation, the paper outlines the main features of orchestration

of VSS as regulatory intermediaries. Orchestration constitutes a distinct modality of public action by means of which

EU public actors increase their capacity to regulate global value chains (GVCs) by harnessing private standards. This

contribution discusses the consequences for public and private authority stemming from their interplay, and it high-

lights how EU orchestration shapes transnational private regulation. Instruments as diverse as the Renewable Energy

Directive, the Public Procurement Directive, the Forest, Law Enforcement, Governance and Trade (FLEGT) Regime,

and the Directive on Non‐Financial Reporting identify different forms of legal orchestration between different

3

N. Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’(2014) 108 American Journal of International

Law, 38.

4

E. Meidinger, ‘Beyond Westphalia: Competitive Legalisation in Emerging Transnational Regulatory Systems’, in C. Brutsch and D.

Lehmkuhl (eds.), Law and Legalisation in Transnational Relations (Routledge, 2007), 121–143.

5

T. Halliday and G. Shaffer, ‘With, Within, and Beyond the State: The Promise and Limits of Transnational Legal Ordering ’. University

of California Irvine Legal Studies Research Paper Series No. 2016–59.

6

R. Schmidt, ‘Protecting the Environment through Sports? Public‐Private Cooperation for Regulatory Resources and International

Law’(2017) 28 European Journal of International Law, 1341.

7

J. Kooiman, ‘Social‐Political Governance: Overview, Reflections and Design’(1999) 1 Public Management: An International Journal of

Research and Theory, 73.

8

K.W. Abbott, P. Genschel, D. Snidal and B. Zangl (eds.), International Organisations as Orchestrators (Cambridge University Press,

2015).

9

K.W. Abbott, D. Levi‐Faur and D. Snidal, ‘Theorising Regulatory Intermediaries: The RIT Model’(2017) 670 The Annals of the Amer-

ican Academy of Political and Social Sciences, 14.

10

F. Cafaggi, ‘New Foundations of Transnational Private Regulation’(2011) 38 Journal of Law and Society, 20.

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