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Regulating in Global Regimes (Apr 2010)

Colin Scott

An increased emphasis on global regulation is, in part, a response to the recognition of economic, social and cultural interdependence between the world’s nations and peoples. Policy problems as diverse as reckless behaviour by financial institutions, exploitation of sweat‐shop labour in emerging economies, and the threat of climate change, present collective action problems which cannot be resolved through the deployment of the state’s authority, capacity and legitimacy alone. Global regulation might refer to diffusion of regulatory governance round the globe or centralised governance organised around a supranational regulatory agency overseeing compliance with global rules. I argue in this paper that the fragmented character of many global regimes involves both a variety of organisations in exercising the requirements of a viable regulatory regime and a diffuse range of instruments or mechanisms through which the norms of the regime are created and made effective. Global regulation, in this third sense, elides two significant trends which deviate significantly from classical conceptions of state regulation. First, there is a trend towards supranational regulatory governance, and in particular the setting of rules and standards by intergovernmental organisations. Second there is a trend towards the establishment of regulatory regimes by non‐governmental actors, which has been particularly marked at the supranational level – engaging both NGOs and firms. Much discussion on the evolution of global regulation focuses on the distinction between regulatory regimes which are fundamentally governmental in character, established by states or more typically associations of states or intergovernmental organisations, on the one hand, and regimes which are predominantly non‐state in their origins and character, involving NGOs and firms or associations of firms. The bifurcation of inter‐governmental and non‐governmental regulatory regimes underpins a widespread assumption, particularly within policy circles, that governmental regulation may both be more effective and more legitimate. I suggest in this paper that this distinction between intergovernmental and non‐governmental regulation is increasingly unimportant, for three reasons. First, concerns about lack of coherence in global regulation are of equal and perhaps more relevance to governmental than non‐governmental regimes. Second concern that weaknesses in instruments and in particular their lack of bindingness may undermine the claims to normative effectiveness of non‐governmental regimes are over-stated. Addressing the third concern relating to the diminished legitimacy of non‐governmental activity I suggest that broader engagement in private and hybrid regimes may enhance their legitimacy vis-a-vis supranational governmental regimes which appear remote from national elected politicians. These debates are of particular importance during a period of tensions surrounding regulatory objectives and effects because of a reaction to a financial crisis which tends to blame, and seek to reduce, the role of self‐regulation and other non‐governmental regimes, whilst playing up and perhaps over‐stating the potential for effectiveness of governmental and inter‐governmental activity.

UCD Law Working Papers in Law, Criminology & Socio-Legal Studies

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