Numbers in regulatory intermediation: Exploring the role of performance measurement between legitimacy and compliance

Much regulatory intermediation has come to entail forms of calculation and performance measurement. In this paper we analyze the role of performance measurement in regulatory intermediation in a transnational multistakeholder setting where intermediation lacks an official mandate. We do this through a study of the Access to Medicine Index, which ranks pharmaceutical companies in terms of their access to medicine policies and practices in developing countries. We conceptualize multistakeholder intermediaries as "second order rulemakers" reconciling diverse and often competing implicit and explicit rules across the governance field. We then detail various intermediation roles of performance measurement between attaining input and output legitimacy and enticing compliance among targets. Our case demonstrates how the selective formalization of measurement processes and the related ability to move back and forth from the role of intermediary to that of "ad hoc rulemaker" are important conditions for achieving and maintaining legitimacy. Furthermore, it shows that for multistakeholder intermediaries that rely on performance measurement, compliance by targets depends on the uptake of performance information by powerful constituencies. This illustrates how addressing legitimacy concerns and enticing compliance through performance measurement should be examined as co-emerging processes.