Towards a legal theory of capture

Published date01 November 2018
Date01 November 2018
Towards a legal theory of capture
Caroline Devaux*
To assert their role in global governance, international organisations, including the EU, have
progressively involved economic actors in their activities, particularly in the course of lawmaking pro-
cesses. Their integration, even if necessary, raises the risk of excessive influence that they may exert
on lawmakers. The paper builds on the theory of regulation that coined the concept of captureand
proposes to analyse the conditions and effects of such phenomenon within three selected interna-
tional organisations that are particularly prone to the influence of economic actors: the United
Nations (UN), the International Institute for the Unification of Private Law (UNIDROIT) and the Inter-
national Centre for Settlement of Investment Disputes (ICSID). In light of their practice, the paper sug-
gests key features that an EU legal framework could take to promote the participation of economic
actors in its lawmaking process while preventing the occurrence of capture.
Economic globalisation redistributed the cards of governance on the global stage. International organisations had to
face new competitors in the conduct of their normative functions. Enrolling in a permanent quest for legitimacy, they
chose to focus on their representativeness and their effectiveness to secure their authority in the international
These two imperatives of efficiency and representativity require relying heavily on stakeholders.
Stakeholders, among them economic actors, are indeed essential to ensure that international organisations receive
enough information and support to design efficient and democratic norms. They have therefore been increasingly
integrated into lawmaking processes. In a previous study published in this Journal, we demonstrated that their
integration may be justified, and should even be promoted, on the basis of three factors: their output, input and
throughput legitimacy.
Academic assistant, College of Europe, PhD (Sciences Po Paris), Mjur (Oxon). I thank Alberto Alemanno, Francis Snyder, Ching Fu Lin
and all the participants at the Conference New Directions in EU and Global Risk Regulationorganised at HEC, Paris (1920 June
2015) for their precious comments on an earlier draft of this paper.
T.C. Halliday and B.G. Carruthers observe that: In the modern state, however, representative authority is not sufficient for compe-
tent lawmaking. The complexity of legal regulation requires expertise. Indeed, the legitimacy of the product among its practitioners
partly depends on the technical authority manifest in it.T.C. Halliday and B.G. Carruthers, Bankrupt: Global Lawmaking and Systemic
Financial Crisis (Stanford University Press, 2009) at 132. See also P. Jan, Réforme de l'ONU: choisir entre représentativité et efficacité
(2005) 121 Revue du droit public et de la science politique en France et à l'étranger, 869874 and, more generally, E. Lagrange and JM.
Sorel, Traité de droit des organisations internationales (LGDJ, 2013).
C. Devaux, The Role of Experts in the Elaboration of the Cape Town Convention: Between Authority and Legitimacy(2013) 19
European Law Journal, 843863, where the focus was on the way the aviation sector participated in the elaboration of the Cape Town
Convention under the auspices of UNIDROIT.
DOI: 10.1111/eulj.12217
458 © 2018 John Wiley & Sons Ltd. Eur Law J. 2018;
The pressure to maintain position as major actors of global governance means that the relationship between
international organisations and economic actors may sometimes slip out of control and amount to a dependency
relationship, where international organisations need the satisfaction of economic actors to secure their authority,
which may imply providing them with the legal instruments they need to increase their economic activities. In such
a case, economic actors integrated into lawmaking processes will be able to exert such influence that lawmakers are
left without autonomy to conduct their normative functions.
A critical distinction must thus be drawn between a normative influence exerted by economic actors, which
constitutes the hallmark of a democratic
and reflexive
lawmaking process, and by contrast a situation of capture
where lawmakers lose their margin of action and become controlled by economic actors. Capture may therefore
be seen as the flipside of the integration of economic actors into lawmaking processes. This is not a matter of
degree of integration, i.e. whether the presence of economic actors is limited or not. It is rather a question of control
and dependency instilled between lawmakers and economic actors. In this light, preventing capture is essential to
ensure that the normative functions of international organisations are not diverted from their aim, i.e. the promotion
of the general interest.
Legal scholars are particularly interested in understanding the concept of capture and how it can be avoided.
Introducing such a notion, the paper also aims to reconsider its characteristics. It demonstrates that the model of
regulatory captureis too schematic, and sketches a more complex picture of the phenomenon, in particular regard-
ing its causes, means and effects. Our model of capture aims to help the EU design a framework for controlling the
participation of economic actors in its decisionmaking process while promoting their integration. Such a framework
appears all the more necessary as the EU recently decided to reinforce the participation of private actors by setting
up a structured dialogue with them.
The paper is divided into five sections. Section II introduces the phenomenon of capture and suggests that the
EU could learn from the practice of three international organisations that have long decided to integrate economic
actors into their lawmaking processes: the United Nations (UN), the International Institute for the Unification of
Private Law (UNIDROIT) and the International Centre for Settlement of Investment Disputes (ICSID). Section III
attempts to systematise the occurrence of capture by identifying the normative context conducive to a capture, its
legal entry points and the means used by economic actors to set up a capture. In Section IV, we identify the effects
of capture, arguing that capture may occur to various degrees in contrast to what the theories of regulation posit. In
light of these findings, the final section underlines key aspects that an EU instrument should have to channel the
participation of economic actors in its lawmaking process and prevent the occurrence of capture.
The concept of capture is nothing new. The idea can be traced back to the first economic regulations in the United
States at the end of the 19th century,
but it was coined in the aftermath of World War II by Samuel Huntington to
highlight the relations US federal agencies had with specific interest groups.
Marver Bernstein then extended the
study to other US agencies, further calling into question the idea of a regulation naturally orientated towards the
J. Habermas reserves a central role to the deliberation as the only way to guarantee a democratic process. J. Habermas, Théorie de
l'agir communicationnel: rationnalité de l'agir et rationalisation de la société (Fayard, 1987).
See I. Ayres and J. Braithwaite, Responsive Regulation (Oxford University Press, 1992).
Article 11 TEU. For further developments, see below, p. 13 [12 s].
Even if the idea of capture is already present in the works of Montesquieu, James Madison and, later, of Karl Marx.
The concept of capture emerged in the field of public administration. See Samuel P. Huntington on the excessive influence of the
railroad industry on the US federal agency in charge of the regulation on commercial transportation. S.P. Huntington, The Marasmus
of the ICC: The Commission, the Railroads, and the Public Interest(1952) 61 The Yale Law Journal, 467509.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT