The consultation dilemma in private regulatory regimes: negotiating FSC regional standards in the United States and Canada

Abstract

Public policy has been infiltrated by private regimes of regulation in the past decade. Such private regimes include industry codes of conduct and voluntary certification and labelling schemes. One such scheme is the Forest Stewardship Council (FSC‐AC), an international, civil‐society‐based organization headquartered in Bonn, Germany, which promotes forest certification. To ensure that forests are well managed, FSC requires forest managers to adopt practices that conform to its ten principles and 56 associated criteria (P&Cs). Committees were established across North America in the 1990s to develop indicators for FSC's generic P&Cs adapted to specific regional circumstances. In the paper, the author describes the negotiation arrangements used to develop four FSC North American regional standards, identifying a continuum that ranges from bottom‐up to top‐down approaches. The content of each of the standards is then assessed and a systematic, but not one‐to‐one relationship between negotiation arrangements and content standards is revealed. The author concludes that top‐down negotiation arrangements gave rise to less demanding standards than did bottom‐up negotiation arrangements, that FSC needs to re‐think its unstructured approach to regional standards development and that private regulatory regimes are especially vulnerable to under‐ and over‐consultative arrangements.