There is much to learn from Enrico Partiti's careful and thorough legal analysis of the interplay of public and private regulation. Private regulation – referred to as voluntary sustainability standards (VSS) by the author – captures instances where private actors set and implement rules for the social and environmental consequences of economic activities. Decades have passed since the initiation of certain leading private regulatory programmes in the social and environmental space – a form of regulatory governance that has since proliferated in these and other spaces. International regime complexes during this period have been the motivational and mobilizing structures for private actors that have sought to develop alternative processes to devise rules to guide social and environmental behaviour in global value chains. Meeting halls of intergovernmental process – such as the International Tropical Timber Council or the International Labour Organization – have fostered and mobilized networks and coalitions ready to act towards a common cause. Also, the slow, limited strength, or outright lack of intergovernmental action on certain social and environmental issues have created an appetite for action through private and market means.Footnote ¹

Regulating Transnational Sustainability Regimes continues the tradition in the academic literature of focusing on private regulation for social and environmental issues – or ‘sustainability issues’ as per the VSS term – but the analysis frequently relates these sustainability standards to, and contrasts them with private rules devised for technical specifications and questions of product quality, such as food safety. Consistent with other scholarship on this topic, the book notes that standards for social and environmental issues diverge from so-called technical standards that are more likely to generate network externalities and create market efficiencies, even if distributional conflicts may still exist over which technical standards should be adopted. Social and environmental standards, by contrast, address so-called Pigovian externalities.Footnote ²

The structure of the book is as follows. Chapter 1 sets out the distinctiveness of VSS schemes; itemizes a typology of VSS forms with reference to, inter alia, the potential quality of the standards as global public goods; and reviews extant work evaluating the effectiveness of VSS as a governance instrument. Chapter 2 considers the interplay of public and private authority, focusing on the ideas of horizontal (consistent with international law) and vertical (consistent with state and substate law) complementarity as a framework for investigating normatively desirable roles for government regulation of VSS. The main contribution of the book, and the focus of this review, is presented in Chapters 3 to 6. These chapters detail a legal analysis of international trade law and European Union (EU) internal market law (including competition law) to ascertain points of interplay between public and private regulation in these areas, and opportunities for oversight and steering through state regulation.

International trade law has been a key spark for private regulation. In the forest sector, for instance, tropical timber prohibitions were on the agendas of American cities and European governments in the late 1980s, and in 1992 the Austrian parliament voted to ban tropical timber imports that were not labelled as sustainable. Threats of a challenge under the General Agreement on Tariffs and Trade (GATT)Footnote ³ to this ban by tropical timber-producing countries led Austria to change its rules and redirect the funds earmarked for implementation of the law to support the nascent efforts of the Forest Stewardship Council (FSC).Footnote ⁴ Competition law, albeit not as prominently, also featured in the early developments of forest certification. The threat of action under competition law was one factor that shaped the development of forest certification in the United States (US). The World Wide Fund for Nature – World Wildlife Fund in North America – had been instrumental in establishing buyer groups that sought to support the purchases of certified sustainable forest products.Footnote ⁵ Members of the groups – retailers, book and magazine publishers, and other timber and paper product purchasers – made commitments to source certified products, which at the time meant products certified by the FSC. While a buyer group did develop in the US in 1997, its members did not adopt as strong a collective set of commitments, partly for fear that this would be viewed as collusion under US anti-trust laws.Footnote ⁶

The legal analysis presented in Partiti's book goes well beyond existing understandings of these specific cases and turns the analysis towards normative questions about the best ways in which states might regulate VSS. It thus complements other work on EU regulation of VSS, which has explained why the EU has intervened,Footnote ⁷ by including questions of how such oversight might be improved. In this way, the analysis contributes to work on decentralized private regulation which has sought to leverage its flexibility and experimental benefits with states operating as orchestrators to ensure that procedural and substantive norms of transparency and accountability were being realized.Footnote ⁸ Considerable work has examined the extent to which forms of orchestration are being undertaken by states to steer private regulationFootnote ⁹ – including in the EU.Footnote ¹⁰ Partiti's book, however, elucidates further means to accomplish orchestration rooted in, and consistent with, specific provisions of the Treaty on the Functioning of the European Union (TFEU)Footnote ¹¹ and international trade law and associated jurisprudence.

Within the EU, the book examines competition law through the provisions of TFEU, particularly Articles 101 and 102, as well as the EU Commission Guidelines for Horizontal Agreements (Chapter 3).Footnote ¹² It then turns to an assessment of Article 34 TFEU, which addresses the free movement of goods within the EU market (Chapter 4). Noting that the Court of Justice of the European Union (CJEU) has passed judgments on restrictions created by professional and sports associations under other articles of TFEU, the book suggests that case law is likely to turn to addressing private regulation for social and environmental issues in time, although CJEU rulings that restrict actions of VSS appear to be unlikely, according to Partiti. However, the EU has used directives and regulations to engage and steer VSS for addressing sustainability issues arising in global value chains beyond EU Member States, and the book reviews these efforts to establish the extent of oversight and where further provisions are merited.

International trade law is taken up next, when the book examines whether World Trade Organization members have any obligations to control the actions of VSS given the provisions of the GATT and the Agreement on Technical Barriers to Trade (TBT)Footnote ¹³ (Chapter 5). A starting point for the analysis is the Articles on State Responsibility for International Wrongful Acts (ASR), which codified customary international law when adopted by the United Nations (UN) General Assembly in 2001.Footnote ¹⁴ Articles of the ASR detail legal understandings of when actions by private actors can be attributed to a state. The actions of VSS under the EU Renewable Energy Directive,Footnote ¹⁵ Conflict Minerals Regulation,Footnote ¹⁶ and Public Procurement Directive,Footnote ¹⁷ according to the book's analysis, would be attributable to the EU given the meaning of Article 11 ASR. However, situations where adopting VSS was just one of many ways to potentially establish compliance, such as in the case of the EU Timber Regulation,Footnote ¹⁸ would not meet the threshold for attribution. The assessment of the TBT details the various obligations on Member States to ensure that standards set by non-governmental bodies operating within their territories are consistent with the procedural and substantive requirements of the TBT Code of Good Practices.Footnote ¹⁹

The TBT Code of Good Practices, the book explains, creates potentially further-reaching obligations and opportunities for states. These are examined further by offering a test for ‘the obligations of non-discrimination, necessity and a basis in international standards against which to appraise VSS’ (pp. 240–1) (Chapter 6). The analysis suggests that VSS are likely to be ‘prima facie discriminatory where they negatively impact on the whole group of imports or on producers from a given country’ (p. 279). To be justified in this light, an even-handedness assessment would check whether the VSS based its standards on international law (that is, the standards were horizontally complementary). In cases where a VSS complements the regulations of a Member State, the same vetting should be applied to the VSS as is applied to that state's own measures. With trade restrictiveness, the analysis suggests that a suitability test could check whether the VSS was ineffective. In this case, trade restrictiveness and strict enforcement by a VSS would be problematic given obligations under the TBT for the Member State in which the VSS operates.

Partiti's analysis advances our understanding of the contours of EU internal market laws and international trade law that are, and might be, leverage points for ensuring that VSS are operating as intended, and are consistent with important procedural and substantive norms. In this way the book offers an important contribution to the orchestration literature.Footnote ²⁰ Empirical work that examines larger datasets of VSS schemes support some of the book's claims and hopes about the relationships between the engagement of states with VSS and certain procedural practices. Schemes with government involvement, for instance, have been shown to adopt more procedural best practices than schemes that are privately run,Footnote ²¹ and government involvement also correlates with greater adoption of deeper forms of transparency by VSS schemes.Footnote ²² The book also correctly emphasizes the Codes of the International Social and Environmental Accreditation and Labelling (ISEAL) Alliance,Footnote ²³ given that membership of the ISEAL Alliance correlates with higher levels of scheme transparency.Footnote ²⁴

Conversely, the questions of effectiveness that the book introduces early on (Chapter 1) as well as the implications of how to balance trade restrictiveness against allocative efficiency and addressing social and environmental problems are practical challenges that remain unresolved concerns for practitioners, policymakers, and advocates working to advance transnational sustainability. Recent work on stakeholder comments on VSS in standards revision processes, for instance, finds that stakeholder input does not necessarily increase standard stringency, questioning a simple relationship between multi-stakeholder processes and stronger standards that are often assumed to hold.Footnote ²⁵ Procedural tests alone, in other words, may not be able to discern the suitability of a scheme with regard to any trade-off between trade restrictions and environmental or social outcomes. In addition, when thinking about questions of non-discrimination, VSS schemes need to be assessed on a case-by-case basis and as a holistic regulatory process that accounts for their histories, overall governance structures,Footnote ²⁶ standards development, specific and varied forms of standards,Footnote ²⁷ auditors and auditing processes,Footnote ²⁸ and complaints or objections procedures,Footnote ²⁹ as each of these facets of this form of private regulation can create, and has created, inequities within markets. Partiti's book ought to be an excellent foundation for additional legal analysis considering such case-specific considerations and their implications for how states might regulate private regulation for the betterment of the public and planetary good.