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 law‐making processes will be able to exert such influence that law‐makers 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
law‐making process, and by contrast a situation of capture
where law‐makers 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 law‐making 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 law‐makers 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 capture’is 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 decision‐making 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 law‐making 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 law‐making process and prevent the occurrence of capture.
2|INTERNATIONAL ORGANISATIONS AS ‘EXPERIMENTAL
LABORATORIES’FOR THE EU
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, 467–509.