Collaborative Regulation: Preventing Regulatory Capture in Multi-stakeholder Processes for Developing Norms for Sustainability Conduct

This chapter introduces the theory of collaborative regulation to prevent regulatory capture by actors in multi-stakeholder regulatory processes. Specifically, the chapter argues that proceduralization of the multi-stakeholder process can be deployed for this purpose, and that this holds potential to fill a theory gap in reflexive law theory in regard to balancing power disparities between participants in a multi-stakeholder regulatory process. The point of departure is taken in the complex interaction between public policy objectives on sustainability and the transnational character of many of the issues at stake. In response to such concerns and the limitations of international and national law-making to regulate transnational economic activities, a series of public, private and mixed multi-stakeholder initiatives have been launched to regulate business enterprises and prevent adverse societal impacts. While scholars and practitioners have documented risks of regulatory capture by powerful or otherwise privileged actors in such processes, little is known about the internal norms and organization of a multi-stakeholder process that can support turning a broadly representative input into a normative result (output) in such a manner that the output enjoys a high degree of legitimacy to support organizational uptake without strong enforcement institutions. Several past examples of such multi-stakeholder forums launched by international or regional organizations to regulate sustainability concerns exemplify reflexive law as a regulatory practice. Adopting a socio-legal approach and drawing deliberative theory, the chapter contributes to the legal sustainability literature through theory-building on a regulatory process that is inclusive while also balancing power disparities.