Burkard Eberlein

We investigate private authority in European Union (EU) energy governance in order to address two research questions: First, how has authority been conferred on, and acquired by private actors? Second, to what extent has this lateral shift of authority been contested and on which grounds? The paper links the literatures on regulatory governance and private authority. This allows us to shed light on an issue that tends to be neglected in the discussion about the transfer of competencies in the energy field: the horizontal transfer of authority. In our case study about the role of transmission system operators (TSOs) in the creation of an internal electricity market, we identify three distinct settings where both the level of sovereignty-based contestation and the shift towards private authority vary. We find that private rulemaking has gained in importance due to functional expertise requirements, but also because it provides an escape route in a context of political contestation.

Recent scholarship on transnational business governance has begun to examine public‐private interactions and the active role of governments. We make two key contributions that integrate and expand this literature. First, in juxtaposition to functionalist accounts, we foreground the fundamentally political and often contentious character of these interactions. As private transnational governance schemes and standards “hit the ground,” private‐public interactions, we argue, are embedded in national political arenas and tied to domestic distributional struggles among competing regulatory coalitions. Building upon multiple empirical streams of research, we develop a political‐strategic framework that maps the diversity of Southern government responses (substitute, adopt, repurpose, replace, or reject) to transnational private governance. Our framework shows that government responses are a function of both strategic fit with domestic industrial capabilities and structures, and strength of developmental state capacity. Second, our proposed framework adopts the vantage point of Global South governments and industries, particularly how development challenges and strategic options within global value chains affect their understanding of, and responses to, transnational schemes and standards. This is an important corrective to a Northern bias in the private governance literature.

Why do junctures become critical in some cases but not in others? Building on the critical juncture framework and perspectives on the formation and diffusion of beliefs, we develop a theoretically parsimonious and empirically traceable account of divergence in institutional outcomes. By illuminating the role of agency and joint belief shifts we further open the “black box” of critical junctures. In particular, we develop the argument that the role agents play is conditioned by conflict lines that structure an institutional field before a juncture sets in. Empirically, we trace political discourses around the 2011 Fukushima nuclear accident in Canada, Germany, and Japan using discourse network analysis. Through comparative investigation, we empirically show that discursive interactions during potential critical junctures indicate institutional outcomes that are shaped by causally relevant historical legacies.

Political CSR has made great strides towards a better appreciation of the political involvement of corporations in global governance. However, its portrayal of the shifting balance between business and government in the globalized economy rests on a central, yet largely uncontested, assumption: that of a zero-sum constellation of substitution in which firms take on public responsibilities to fill governance gaps left by governments. This conceptual paper expands the political CSR perspective and makes three contributions to the debate on the political role of business and the role of government in global governance. First, it deconstructs the problematic assumptions underlying the zero-sum notion of governance gaps filled by corporations. Second, it offers a variable-sum mapping of how private and public authority interact in global governance where substitution is only one of four constellations. The mapping identifies ‘soft steering’ as a prominent mode of governments governing business conduct. Third, the paper theorizes ‘orchestration’, a ‘soft steering’ tool discussed in the global governance literature, from an organizational, corporate perspective. It identifies the mechanisms through which orchestration may address the barriers to corporate engagement with the public good and applies these mechanisms to the case of the Global Reporting Initiative.

Conflict, convergence, cooperation and competition among governance actors and institutions have long fascinated scholars of transnational law, yet transnational legal theorists’ accounts of such interactions are for the most part tentative, incomplete and unsystematic. Having elsewhere proposed an overarching conceptual framework for the study of transnational business governance interactions (TBGI), in this article we propose criteria for middle-range theory-building. We argue that a portfolio of theoretical perspectives on transnational governance interactions should account for the multiplicity of interacting entities and scales of interaction; the co-evolution of social agency and structure; the multiple components of regulatory governance; the role of interactions as both influence and outcome; the diverse modes of interaction; the mechanisms and pathways of interaction; and the spatio-temporal dynamics of interaction. To suggest the value of these criteria, we apply them in a preliminary way to selected transnational legal scholarship and to the other articles in this special issue.

This special issue demonstrates the importance of interactions in transnational business governance. The number of schemes applying non‐state authority to govern business conduct across borders has vastly expanded in numerous issue areas. As these initiatives proliferate, they increasingly interact with one another and with state‐based regimes. The key challenge is to understand the implications of these interactions for regulatory capacity and performance, and ultimately for social and environmental impact. In this introduction, we propose an analytical framework for the study of transnational business governance interactions. The framework disaggregates the regulatory process to identify potential points of interaction, and suggests analytical questions that probe the key features of interactions at each point.