Power and the Practice of Transnational Private Regulation

Corporations, NGOs, and private regulatory initiatives have taken on functions once assumed to be the domain of the state and inter-governmental organisations. While researchers are racing to assess the impacts of private rules, theoretical statements remain focused on the design, legitimation, and intermediation of private initiatives or the hegemony of neoliberal governance. This paper instead highlights the grounded practices of transnational private regulation, and it argues that much about these practices can be explained through a straightforward (but multi-faceted) analysis of power. Specifically, unpacking the practice of private regulation requires a focus on (1) the distinctive power struggles that animate different types of standard-setting projects (which should not be reduced to a single logic), (2) the saturation of private regulation with corporate power (not merely the capture of particular intermediaries), and (3) the construction of compliance in ways that accommodate state powers at the point of implementation. These points are illustrated with examples from research on private rules for land and labour and accounts of standards wars more generally.