In the 21st century world politics is becoming increasingly multi-nodal and characterized by heterarchy, namely the predominance of cross cutting sectoral mini- and meso-hierarchies above, below and cutting across states. States are becoming “reactive states” as their capacity for “proactive” policymaking and implementation are eroded. This process is leading to an uneven spectrum of market/hierarchy or public/private de facto policymaking processes and diverse types of “capture” between a range of private actors and meso- and micro-hierarchies, institutions and processes. At the same time, global regulation is increasingly fragmented, whipsawed between transnational and subnational private special interest groups, leading to potential crises at a complex range of nodes and levels. The core of this process is the triangulation of (a) the “disaggregated state”, (b) fragmented global governance and “regime complexes” and (c) “sectoral (or functional) differentiation” in the international political economy.

The LIBOR scandal stands out as the most striking failure of private financial standard-setting in the post-crisis era, and thus provides an important case study of the resilience of private authority. Public authorities brought corporate criminal cases against the world’s largest banks, imposed penalties of tens of billions of dollars, and indicted several brokers and bankers. LIBOR’s private administrator was replaced, and the public sector has played a central role in creating and administering new, more robust benchmark interest rates. Neither the transnational nature of the benchmark itself, its users, and the manipulation scheme, nor the fact that the scandal coincided with a financial crisis prevented this reassertion of public authority. The intervention of a different set of public actors—most saliently prosecutors—with different incentives and capabilities is the key factor that explains this outcome, which stands in stark contrast with the hands-off approach to LIBOR governance and reform followed by banking regulators before the crisis. This suggests that involvement of a broader range of public actors can restore the balance between private standard-setting and effective public oversight.

The Global Food Safety Initiative (GFSI) has evolved into a leading private rule-maker in the field of global food safety. To showcase the evolution of GFSI, we discuss the transitions in its governance structure, its activities and its framing as perceived through the lens of legitimacy. Building and maintaining legitimacy is of vital importance to GFSI. As a transnational private rule-maker, it cannot do without cooperation with other parties. GFSI’s evolution, we argue, has unfolded via processes of pluralisation of its constituents, increased transparency, ratcheting up of food standards’ quality, and globalisation of its benchmarking activities. Despite its growth and the inclusion of other participants in its governance, GFSI has not changed its roots: it remains an industry-led organisation relying on the participation of food safety experts of large food corporations. We will show that many of the changes the organisation has gone through can be interpreted as a response to crises, defined as fundamental objections and doubts voiced by external actors against GFSI or the practice of food certification more generally.

The Basel Committee on Banking Supervision (BCBS) is the most important international standard setting body in the field of financial regulation. Its remit concerns banking regulation, and particularly prudential requirements of internationally active banks. The fundamental question addressed by this chapter is what explains the resilience of the BCBS and its standards, particularly in the aftermath of the 2007-2008 global financial crisis. The chapter is organised as follows: first, there is an introduction to the BCBS and the standards its members develop. Second, the failures of the Basel regime leading to the financial crisis are highlighted, as well as some possible explanations thereof. Thereafter follows a discussion about the reasons why the fundamental features of the regime are still in place even after its evident inadequacies and why the reforms adopted in the wake of the crisis are a way to safeguard the resilience of such features.

This chapter problematises the notion of resilience as continuation with adaptability, suggesting that it requires specifying in advance the essential attributes of a global governance body, which would have to remain largely intact for adaptation to changing circumstance to count as resilience. The chapter therefore identifies those essential attributes for the International Electro-technical Commission (IEC). The chapter then theorises resilience of a private rule-making body as a function of its capacity and capability for autonomous agency in pursuit of its organizational self-interest, the embeddedness of the rule-making body among its stakeholders, and its leadership’s ambition to ensure the organisation’s survival. It shows that these characteristics helped the IEC to achieve resilience in the face of numerous and diverse challenges from technological changes, the emergence of competing SDOs and geopolitical changes accompanied by power transitions in the world economy, including the rise of China. The unresolved challenges of meaningful consumer participation and better gender balance in international standardization suggests, however, that past resilience is only partially predictive of future resilience.

Transnational private regulation poses distinct questions of coherence and legitimacy within the international legal order. Regretfully, international legal scholarship is not sufficiently concerned with the interplay between public and private authority in spite of the proliferation of the latter. This contribution critically studies this interaction while zooming in on the dynamics of standard-setting through two case studies: the growing need for coherence and legitimacy of global food safety standards, and the growing (security) concerns for regulatory capture in the critical standard-setting domain of international communication within the International Telecommunication Union. Focusing in particular on international trade law rules such as those applying to sanitary, phytosanitary and technical barriers to trade, but also on those at the regional level such as in the EU, the contribution studies how democratic accountability and legitimacy of transnational private rule-makers is enhanced both ex ante as well as ex post though forms of recognition.

Since the nineties, international lawyers have increasingly questioned the traditional assumptions regarding the processes of law-making in the international sphere. A state consent-centered approach to the study of global governance, we are often told, has lost its edge due to the increased role of private actors and “soft” norms. Neoliberalism, in this narrative, finally opened the “black box” of the state. While this account contains important truths, it also obscures the long roots of global private transnational regulation. Indeed, states, willingly or unwillingly, have always tolerated the normative activities of private actors in the global sphere, even before the end of the cold war. As an example, I trace the processes through which private and public actors from the North Atlantic competed within the International Organization for Standardization (ISO) to set the global standards for containerized shipping. In this “Keynesian” epoch, the lines between the private and the public were as blurry as in our days. Instead of assuming the novelty of private lawmaking, I argue that we much to learn from the long histories of “pre-neoliberal” non-state transnational regulation.

This chapter analyses how the American Petroleum Institute (API) adapted to the post-Deepwater Horizon (DWH) oil spill era despite the criticisms from investigation reports that brought into question its role as private standard-setter in the oil and gas industry and the reliance of federal regulations on the API’s standards. Grounded on the theory of regulation, investigation reports, and documents from the Bureau for Safety and Environmental Enforcement (BSEE) and the Center for Offshore Safety (COS), this chapter examines the organizational response of the API and how BSEE, as the federal regulator, endorsed it. It proposes a definition of what a regulatory crisis is, and argues that despite the regulatory crisis created by the DWH accident, the API increased its influence in offshore oil and gas regulations in the US not only as rule-maker but also as supervisor. The chapter identifies the gaps in transparency and regulatory practices that may undermine the effectiveness of the new regulatory scheme. By presenting a case from the oil and gas industry, this research aims to contribute to the broader scholarship on the responses of transnational private regulators in times of crisis.

The global anti-doping regime is a hybrid regime operating as part of the global system of sports governance. This chapter analyses the accountability puzzle surrounding its specific hybrid constellation and the regime’s accountability response to a scandal from 2015, which exposed the Russian large-scale doping scheme. The analysis shows that, in the five years’ period following the scandal, the regime did not fully ignore calls to demonstrate accountability, yet its responses have been protracted and partial. Sanctioning or performance evaluation forums, which are said to be a defining feature of accountability relationships, have not been introduced, although the regime has adopted some structural changes that have dispelled prior conflicts of interests and system dysfunctions. Legitimacy pressures led to some functional improvements within the regime, although their power to enhance the accountability framework was limited. Our case indicates that a ’favourable’ political economy, where stakeholders have neither formal ’voice’ nor exit options, can afford leverage to a private regime owner to direct legitimacy pressures towards solutions that do not structurally diminish its power over the other actors in the regime.

Increasing participation of Chinese companies in Information and Communication Technology (ICT) standardization has been a frequent topic of the recent academic and policy discussions. Many Western governments and companies believe that the growing representation of Chinese companies, especially Huawei, in the leadership of Standards Development Organizations (SDOs) allows these companies to unduly influence standardization processes. Building on previous empirical studies on China’s representation in SDOs, this chapter theorizes whether, and to what extent, different institutional models of SDOs are capable of safeguarding the integrity and independence of their standardization processes and their resilience to political and commercial pressures, by studying the rules on the leadership appointments of four global SDOs. In a broader sense, our analysis sheds light on the neutrality, independence and trustworthiness of these critical institutions of global economic governance and their evolving and continuous relevance for global standardization.