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

Published date01 January 2019
Date01 January 2019
Orchestration as a form of public action: The EU
engagement with voluntary sustainability
Enrico Partiti*
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 useof 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.
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.
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 socalled responsible consumerismand a growing
institutionalisation of corporate social responsibility(CSR) practices. Private actors such as companies, retailers con-
sortia and nongovernmental organisations are behind these schemes.
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.
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), 215248.
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;25:94117.wileyonlinelibrary.com/journal/eulj
regimes have been established in domains where limited, or less defined, public rules could be found.
In some sec-
tors, VSS have thus been able to play an important gapfilling role at the transnational stage, as they brought about
increased legalisation and a clear allocation of rights and responsibilities between market actors.
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.
Transnational private regulators possess incomplete forms of authority, and are thus often forced to cooperate
to compensate for their authority and legitimacy deficits.
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.
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.
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.
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 standardsetting and standardgovernance.
Taking stock of the everincreasing 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 NonFinancial Reporting identify different forms of legal orchestration between different
N. Krisch, The Decay of Consent: International Law in an Age of Global Public Goods(2014) 108 American Journal of International
Law, 38.
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), 121143.
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. 201659.
R. Schmidt, Protecting the Environment through Sports? PublicPrivate Cooperation for Regulatory Resources and International
Law(2017) 28 European Journal of International Law, 1341.
J. Kooiman, SocialPolitical Governance: Overview, Reflections and Design(1999) 1 Public Management: An International Journal of
Research and Theory, 73.
K.W. Abbott, P. Genschel, D. Snidal and B. Zangl (eds.), International Organisations as Orchestrators (Cambridge University Press,
K.W. Abbott, D. LeviFaur and D. Snidal, Theorising Regulatory Intermediaries: The RIT Model(2017) 670 The Annals of the Amer-
ican Academy of Political and Social Sciences, 14.
F. Cafaggi, New Foundations of Transnational Private Regulation(2011) 38 Journal of Law and Society, 20.

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