The Administrative Law of Global Private-Public Regulation: the Case of Forestry

An important ensemble of transnational, transgovernmental regulatory institutions has emerged in the forestry sector over the past decade. These ‘forest certification’ programmes set global standards for proper forest management and apply them through institutionalized licensing and inspection programmes. Similar programmes are appearing in other sectors. Developed largely by environmental NGOs and industry associations rather than governments, forest certification programmes are nominally voluntary, but are becoming increasingly mandatory in practice. They are also gradually linking with government regulatory and management programmes in various ways, while remaining in tension both with each other and with government programmes. The overall regulatory system is thus highly dynamic, as the programmes compete with each other for business and also with government regulatory programmes for public acceptance. This paper describes and assesses the administrative law – i.e., the requirements for rule-making and rule application – of the emerging global forest regulatory system. It finds that while the certification programmes are becoming increasingly transparent and participatory, often comparing favourably with government programmes, some of them still need considerable improvement and all of them face serious challenges. It concludes with a discussion of the problem of accountability, outlining the possibility that the programmes exemplify an emerging new kind of ‘learning accountability’.