THE NEW WAL-MART EFFECT: THE ROLE OF PRIVATE CONTRACTING IN GLOBAL GOVERNANCE
Michael P. Vandenbergh∗ ABSTRACT
This Article argues that networks of private contracts serve a public regulatory function in the global environmental arena. These networks fill the regulatory gaps created when global trade increases the exploitation of global commons resources and shifts production to exporting countries with lax environmental standards. As critics of trade liberalization have noted, public responses often are inadequate to address the attendant environmental harms. This Article uses empirical data to demonstrate how private contracting regulates firm behavior, focusing on supply-chain contracting. It shows that more than half of the largest firms in eight retail and industrial sectors impose environmental requirements on their domestic and foreign suppliers. This contracting, which the Article terms “the new Wal-Mart effect,” reduces market externalities by translating a complex mix of social, economic and legal incentives for environmental protection into private contractual requirements. After demonstrating that private environmental contracting is an important part of global environmental governance, the Article examines the efficacy and accountability of this regime. The Article concludes that the private contracting regime often is preferable to the alternatives: lax national and international regulation of firms in many exporting countries, and markets that do not reflect consumer preferences for environmental protection. Finding much promise in the private contracting regime, the Article concludes by sketching an empirical and theoretical research agenda, with new strategies for governments, nongovernmental organizations, and firms.
Professor of Law and Co-Director, Regulatory Program, Vanderbilt University Law School. This paper was supported by research