AULA 7 - 2013 Murphy and Kellow

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Forum Shopping in Global
Governance: Understanding States,
Business and NGOs in
Multiple Arenas
Hannah Murphy
University of Tasmania
Aynsley Kellow
University of Tasmania
Abstract
The political strategy of forum shopping is an under-researched but highly relevant concept for understanding the
dynamics of global governance. Forum shopping involves actors seeking to realise their policy objectives within
preferred policy arenas on the basis of an arena’s particular governing characteristics. We examine the forum
shopping behaviour of the key states, business and non-governmental groups in regard to three policy issues: labour
standards, intellectual property rights, and chemicals regulation. Our preliminary analysis is centred around the
questions of why actors forum shop, the circumstances in which forum shopping enables actors to succeed in
promoting their interests, and the impact of forum shopping on the effectiveness of global governance. Our cases
suggest an arena’s membership, issue mandate, decision making procedures and enforcement capacity are the key
characteristics that shape actors’ arena preferences. Another important implication is that a multi-arena global
governance system comprised of duplication and overlap in issue mandate (rather than large multilateral single issue
arenas) may be beneficial for advancing actors’ policy agendas. The overarching goal of the article is to spark more
systematic research into the often practiced but under-theorised phenomenon of forum shopping.
Policy Implications
• Global governance is achieved through action in multiple arenas, which provide different opportunities for political
action. An arena’s membership, issue mandate, decision making procedures and enforcement capacity should be
taken into account by policymakers in assessing appropriate arenas for advancing their goals.
• Entrepreneurial actors take advantage of ‘strategic inconsistencies’ in the characteristics of international policy
arenas in order to progress or block the development of proposals through incremental decisions.
• Policymakers must be alert to the likely use of forum shopping by other actors, including business actors and
NGOs, which may advance or stymie the development of policy agendas in one arena via action in alternative
arenas.
While it is often employed in the public administration
and legal studies literature, forum shopping (also known
as venue shopping) is an under-researched but highly
relevant concept for understanding the dynamics of glo-
bal governance. Forum shopping involves the strategic
selection and use of policy venues by actors in order to
advance their policy goals. Here, we employ the forum
shopping term to denote the multiple, reiterative use of
various arenas, including returning an issue to the original
arena, and thus building (or blocking) support for policy
action. At the international level of politics, arenas and
their characteristics vary widely: they are distinguished by
membership, decision making rules and procedures, the
strength of enforcement mechanisms, to name just a few.
In this article, we examine how differences in institutional
characteristics give rise to forum shopping behaviour by
not only states, but non-governmental organisations
(NGOs) and business actors seeking to realise their
Global Policy Volume 4 . Issue 2 . May 2013
Global Policy (2013) 4:2 doi: 10.1111/j.1758-5899.2012.00195.x ª 2013 London School of Economics and Political Science and John Wiley & Sons Ltd.
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esearch
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rticle
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agendas and policy preferences. We do so in relation to
international agreements in the policy areas of labour
standards, intellectual property rights and chemicals regu-
lation.
We examine both NGOs and business actors (associa-
tions and individual business firms) involved in forum
shopping. We use the term ‘NGO’ to refer to all other
nonprofit organisations that claim to represent various
public and private interests. NGOs are typically issue-
based, for example, those that claim to represent the
global South, promote human rights, sustainable devel-
opment, or the consumption of fair trade products.
NGOs are organised across all levels of governance from
the local to the international level. (While technically the
term NGO applies to business actors as well, common
usage has tended to drop that meaning).
The first part of the article reviews the existing litera-
ture on forum shopping in public administration as well
as existing contributions on forum shopping in global
governance. We then illustrate the forum shopping
behaviour of states, NGOs and business actors in global
governance through the use of three brief cases. These
include attempts on the part of the international trade
union movement, in concert with the US and European
nations, to strengthen adherence to international labour
standards; the roles of developing and developed states,
NGOs, and business groups in regard to the interpre-
tation of the World Trade Organisation’s (WTO) interna-
tional intellectual property rules; and the roles of
competing business sectors in negotiations over interna-
tional chemicals regulation. For each case, we examine
the interests at stake, the forum shopping strategies uti-
lised, the characteristics of the venues involved and the
outcome of forum shopping activity. In the discussion
section that follows, our analysis is centred around three
key questions: (1) Why do actors forum shop? (2) When –
and in which circumstances – will forum shopping enable
actors to succeed in defending or promoting their inter-
ests? And (3) how does forum shopping activity impact
the effectiveness of global governance? In separating the
cases from our analysis, we follow the advice of Alexan-
der L. George (1979) that case studies should be pre-
sented in a sufficiently descriptive manner so as to allow
the reader to assess the reasonableness of the conclu-
sions being drawn from them. Our overarching goal is to
spark more systematic research into the often practiced
but under-theorised phenomenon of forum shopping.
Forum shopping
Global governance is a messy enterprise. Most policy
issues that require international cooperation are debated
across several policy arenas, often under the auspices of
formal international organisations that differ in their
institutional characteristics. Compounding this complex-
ity are the contributions of actors other than states,
including representatives of business and NGOs. All
actors – states, business and NGOs – have available to
them a number of possible arenas in which to pursue
their policy goals. The international trade policy area
provides a good illustration of these venue opportuni-
ties. Actors progress their trade interests multilaterally at
the WTO, through regional free trade agreements (FTAs)
such as the North American Free Trade Agreement
(NAFTA), or bilateral FTAs. Other forums such as the
Organisation for Economic Cooperation and Develop-
ment (OECD) and the Group of 8 (G-8) provide platforms
for states and nonstate actors to refresh and progress
negotiations, such as the ailing Doha Round (Busch,
2007). Each of these arenas possess differing member-
ships, negotiating and decision making rules, enforce-
ment mechanisms as well as participation opportunities
for business and NGOs. Other potentially significant
characteristics may include organisational culture and
historical development, secretariat capacity, funding
arrangements, provisions for reservations to be entered
into, arrangements for provision of technical or scientific
advice, provisions for withdrawal, and linkages with
other arenas. Arenas therefore offer opportunities and
costs for different actors and their proposals, providing
scope for actors to take advantage of each arena not
just for its own importance, but because of what a deci-
sion in that forum might mean in another (Kellow, 2006).
Opportunities for forum shopping derive from these
institutional differences among international arenas.
Despite the clearopportunities for states and other
actors to engage in forum shopping at the international
level, the term originated in the American public admin-
istration literature to explain policy change.1 In general
terms, this literature portrays actors, especially interest
groups, as constrained by the institutional context in
which they operate. In response, interest groups may
attempt to move issues to (or away from) particular are-
nas, for instance, away from the federal government, or
from one agency to another, possibly by seeking the
intervention or authority of one agency over another
(Baumgartner and Jones, 1993). Forum shopping may
also enable the exclusion of opponents from policy
debates and the possibility for actors to link up with
potential allies (Guiraudon, 2000, p. 258).
Forum shopping within states characterised by multi-
level governance systems, especially federal systems, has
spearheaded the literature in this area. In regard to crim-
inal justice policy in the US for instance, Miller (2004)
shows that some interest groups are better able to par-
ticipate in policy making at the local level where barriers
are lower than at a state or national level. However, the
expanding role of the US federal government has meant
fewer participation opportunities for community-based
groups, leaving only police and a small number of other
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professional organisations present when decisions are
made locally. Similarly, for gun control policy in Califor-
nia, Godwin and Schroedel (2000) contend that interest
groups may find it preferable first to seek out receptive
local policy making bodies to build momentum for
state-level policy change rather than negotiate compro-
mises at the outset. There appear clear differences in
arena success depending upon the policy issue at stake.
In an analysis of Canadian forest policy, Sarah Pralle
(2003) demonstrates the importance of forum shopping
for environmental activists. Where activists face barriers
to participation at both the local and provincial levels,
they may gain currency in lobbying foreign governments
and international organisations or even mobilising trans-
national advocacy networks (see Keck and Sikkink, 1998).
Forum shopping is not necessarily limited to estab-
lished political arenas. Nagel (2006) has found that inter-
est groups create their own arenas when excluded by
formal decision making authorities. In regard to the issue
of rehabilitation services for injured workers in the Aus-
tralian federal system, a coalition of clinical organisa-
tions, excluded from the initial consultation process,
established their own forum to progress their views to
which they invited government representatives. The use
of forum creation strategies deserves systematic exami-
nation at the international level of policy making, where
the absence of overarching authority may render it eas-
ier to create new arenas.
Despite the term’s common usage among diplomats,
relatively few scholars have addressed forum shopping
in global governance.2 Existing contributions focus on
forum shopping in regard to specific issue areas (rather
than as a phenomenon more generally), though some
useful insights are presented. In the area of international
economic policy, Smythe (1998) describes attempts to
enact a multilateral agreement to regulate foreign
investment to replace the myriad of bilateral and regio-
nal agreements, explaining why some states preferred
the Organisation for Economic Cooperation and Devel-
opment (OECD) over the WTO as a host arena. She
concludes that states (and nonstate actors) think
strategically about international economic organisations
based upon their institutional characteristics such as
membership and enforcement capacity (Smythe, 1998).
The EU favoured the WTO due to its superior member-
ship rights there (it has ‘double’ representation at the
WTO through membership of individual states and the
European Commission) as well as their preference to
involve developing countries as part of the agreement
from the outset, unlike the proposed OECD accord
(Murphy, 2010). As such, the perceptions of states and
nonstate actors regarding the characteristics of an
organisation—and the influence they enjoy within—
shape their preferences about where negotiations are
best conducted (Kellow, 2006).
In another area of international economic policy,
Damro (2006) employs a forum shopping model to
explain the tactics of the EU’s Directorate General Compe-
tition in working through multiple international organisa-
tions including the WTO, United Nations Conference on
Trade and Development (UNCTAD), OECD, and the
International Competition Network to bring about conver-
gence and cooperation in competition policy. Five key
institutional features shaped the EU’s arena preferences:
the extent of international coverage (or constitution of
members); ‘bindingness’ (compliance and enforcement
mechanisms); primary target of activity (the member
states the organisation targets for change); issue mandate;
and degree of EU representation (Damro, 2006, p. 869).
For some commentators, the presence of overlapping
venues permitting actors to engage in forum shopping
is a cause for concern in regard to the stability of global
governing arrangements and the accountability of actors
operating at this level. For cetacean management in
which the WTO, the International Whaling Commission
(IWC) and the conference of the parties to the Conven-
tion on the International Trade in Endangered Species of
Wild Fauna and Flora (CITES) are involved, Gillespie
(2002, p. 41) sees forum shopping as destabilising to
both international law and community order by promot-
ing competition rather than cooperation between institu-
tions. Koppell’s (2010) study of global governance
organisations suggests that competition between arenas
provoked by forum shopping may result in greater
responsiveness to actors’ interests at the expense of
accountability.
Yet others have shown that multiple venues in a given
issue area can be beneficial, particularly for engaging
reluctant states in policy discussions. Lachowski (1998)
argues that while attempts to limit the use of landmines
were dealt with relatively quickly via the 1997 Ottawa
Process, not all states were persuaded to sign up.
Another venue, the Conference on Disarmament, despite
pessimism about its capacities, was useful for engaging
unenthusiastic participants such as China and Russia and
for its role in hosting the negotiation of a phased
approach and improved monitoring. Likewise, in his
study of the institutions involved in the global regulation
of genetically modified foods involving the WTO, OECD,
Food and Agriculture Organisation (FAO) and Codex Ali-
mentarius Commission, Princen (2006) finds that the use
of multiple arenas ultimately led to policy cooperation
rather than unproductive competition. Through the pro-
cess of selecting from among these arenas, states can
alter relationships between the institutions. This suggests
a significant possible consequence of forum shopping:
its potential to restructure regimes (Princen, 2006).
Other questions around forum shopping concern the
roles played by nonstate actors – particularly NGOs – as
well as the roles of forums themselves as marketplaces
Forum Shopping in Global Governance
141
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seeking to attract shoppers. Like Gillespie (2002), Hansen
and Krejci (2000) recognise that contests between arenas
can emerge, but also that organisations (and their secre-
tariats) are not simply passive in nature. International
institutions can actively seek to build legitimacy by
selecting and engaging with particular NGOs, in other
words, forums shopping for participants. Myer-Bisch
(2001) touches upon this in asking whether the United
Nations Educational, Scientificand Cultural Organization
(UNESCO) can succeed in identifying appropriate NGOs
whose participation might boost UNESCO’s legitimacy
and capacity as an instrument of world governance.
Alter and Meunier (2009, p. 18) view the roles of non-
state actors more benignly, simply stating that institu-
tional complexity ‘can create a heightened role for
informers – experts, lawyers, and NGOs – which help
states manage rule and institutional confusion’.
In discussing ‘international regime complexity’, Alter
and Meunier (2009) identify sub-types of forum shopping
under the banner of ‘cross-institutional political strate-
gies’ that they label ‘regime-shifting’ and ‘strategic
inconsistency’. Regime shifting refers to attempts by
actors to reshape the global structure of rules by turning
to parallel regimes with different priorities in order to
advance policy agendas (Helfer, 2004; 2009). Strategic
inconsistency is where ‘contradictory rules are created in
a parallel regime with the intention of undermining a
rule in another agreement […] so as to widen their lati-
tude in choosing which rule or interpretation to follow’
(Alter and Meunier, 2009, p. 16; see also Raustiala and
Victor, 2004, p. 280). The concept of strategic inconsis-
tency was canvassed by Young (1996), but not labelled
as such, in his work on regime linkages. Young (1996, p.
8) noted that ‘those desiring to change the basic rules
[...] frequently concentrate on the establishment of issue-
specific regimes in the hope that they can start trends
that will spread from one issue area to another’.
In sum, much of the existing literature on forum shop-
ping at the international level tends to describe forum
shifting or single shot case studies. A key concern
revolves around describing the opportunities for forum
shopping, with some discussion of the benefits and
potential costs of this activity for global governance. This
article suggests that forum shopping is much more
pervasive than this literature implies, involving not just
attempts to shift issues to parallel regimes, but the use
– contemporaneously or serially – of multiple arenas in
order to advance or block the development of regimes.
This is something other than the ‘regime shifting’
discussed by Helfer (2004, p. 14), who describes forum
shopping as more or less one-off and more or less
permanent (though he does suggest that attempts to
shift might provoke change). In this article, we discuss
forums and arenas, not regimes – which might contain
several forums. Moreover, forums might also be provided
by other regimes. The following brief case studies on
labour standards, intellectual property rules, and chemi-
cals regulation therefore seek to strengthen understand-
ings of forum shopping behaviour and its consequences
for global governance beyond the existing offerings of
single case studies and understandings of forum shop-
ping as regime shifting. They provide a launching pad
for understanding why actors forum shop, their forum
shopping success and how the effectiveness of global
governance may be impacted by this activity.
Case 1: Global labour standards
For several decades, the recognition and implementation
of the International Labour Organisation’s (ILO) conven-
tions has been an ongoing source of debate among
governments, trade unions and business actors across
multiple global policy forums. While the ILO is the lead-
ing organisation in this policy area, in recent years, other
organisations such as the WTO and World Bank have
hosted discussions about the labour conventions, in par-
ticular, enhancing the compliance of developing country
governments with the ILO’s standards. Labour standards
proponents such as the US, Norway and trade union
groups have sought these discussions outside the ILO
for two reasons: first, the perception that the ILO has
weak enforcement powers and that other arenas may
offer greater enforcement capacity; and second, the per-
ception that the issue mandates of other policy venues,
namely the WTO and World Bank, contradict the ILO’s
conventions and thus need to be realigned with the
ILO’s standards. The major focus of the debate about
labour standards has been on improving adherence to
eight particular ILO conventions known as the ‘core’
labour standards, which relate to freedom of association
and collective bargaining, forced labour, discrimination
and child labour.
The international trade regime has long been a target
for labour standards advocates. Their argument is that
decreasing barriers to trade negatively impacts labour
standards by encouraging states to reduce labour costs
and conditions to remain competitive. Attempts to incor-
porate labour standards into trade rules can be traced
back to the 1940s and the ‘stillborn’ International Trade
Organisation (ITO), which was to include a provision on
fair labour standards. During the Uruguay Round, efforts
on the part of the US and EU to have the GATT mem-
bership agree to integrating labour standards into the
trade regime were unsuccessful, largely because of
opposition from developing nations.
The creation of the WTO system presented proponents
with a new possible arena in which to bolster adherence
to the ILO conventions. France, Norway, South Africa,
the US along with trade union groups, namely the Inter-
national Confederation of Free Trade Unions (ICFTU) and
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NGOs, such as Oxfam, viewed the WTO’s strong dispute
settlement and enforcement mechanism as an ideal
opportunity. As explained by the ICFTU,
[t]here is no doubt that the WTO represents a
real opportunity for a workers’ rights clause
campaign […] Both the ‘package deals’ and the
way the WTO operates as an organization mean
that the ICFTU and our affiliates can target our
lobbying campaigns much more clearly (1998,
p. 27).
The WTO’s broad membership comprising developed
and developing nations was also attractive to propo-
nents seeking to target developing nations. However,
unlike the ILO, which is governed with a tripartite corpo-
ratist structure, the WTO is effectively a ‘states only’ insti-
tution, meaning that in order to promote their goals,
trade unions worked closely with pro-labour govern-
ments in their efforts to have the WTO integrate labour
standards into its trade agreements (see Murphy, 2010;
Anner, 2001). To initiate progress, the US and EU put the
matter on the agenda for discussion at successive WTO
ministerial conferences, beginning with the 1996 Singa-
pore conference. At the same time, the ICFTU, through
its ‘Campaign on Labour Standards and Trade’, promoted
the human rights aspects of labour standards by
attempting to mobilise national affiliates to lobby their
governments to support the WTO bid (Anner, 2001).
There was a high degree of cooperation between the
Clinton Administration and the American Federation of
Labor and Congress of Industrial Organizations (AFL-CIO)
in the US (Stigliani, 2000), as well as other state support-
ers including the Norwegian government and the ICFTU
in Europe (Murphy, 2010).
Despite the attractiveness of the WTO’s institutional
characteristics to labour standards proponents, another
aspect of the WTO’s character proved prohibitive for the
forum shoppers in enacting a labour standards clause.
Decision making at the WTO can only proceed when
members reach a consensus on every aspect of every
agreement (the ‘single undertaking’). This requirement
ultimately meant the failure of the labour clause pro-
posal at the WTO. Developing countries led by India
strongly opposed the move, seeing it as a protectionist
measure for already wealthy WTO members, effectively
vetoing further discussion and work on labour standards.
Although the labour standards advocates’ attempt at
forum shopping at the WTO was unsuccessful, the high
profile public debate created organisational rivalry
between the ILO and the WTO. The ILO’s attempt to
maintain its statusas the dominant institution in this
policy area led the Governing Body of the ILO to moni-
tor the compliance of all ILO members with core labour
standards regardless of whether they had ratified the
conventions. It also oversaw the ILO’s adoption in 1998
of the Declaration on Fundamental Principles and Rights
at Work and its Follow-Up stating that all member states
have an obligation to implement the core conventions,
even if they have not yet ratified them. In June 1999,
the ILO adopted Convention 182 on the Prohibition and
Immediate Action for the Elimination of the Worst Forms
of Child Labour and a maternity clause in 2000. US offi-
cials played key roles in the development of both docu-
ments (Stigliani, 2000, p. 183). Moreover, in their
attempts to keep the labour issue out of the WTO,
developing countries that had rallied against the trade-
labour linkage at the WTO supported these ILO accords
and participated in discussion over labour issues in these
other international arenas (Anner, 2001, p. 44). Paradoxi-
cally then, forum shopping by unions and pro-labour
governments at the WTO had the effect of expanding
the ILO’s scope of work and bolstering its surveillance of
labour standards compliance. In targeting the WTO, pro-
ponents managed to keep the issue on the international
policy agenda, encouraging the ILO to do more to pro-
mote its conventions and have developing countries do
more to comply with conventions.
Case 2: Intellectual property rights and
access to medicines
Like the labour standards example, the contest over the
interpretation of the WTO’s Trade-Related Intellectual
Property (TRIPS) Agreement in the context of access to
medicines in developing countries is a well-known inter-
national debate. In the lead-up to the WTO’s 2001 Doha
Ministerial Meeting, member states disputed how the
TRIPS safeguard provisions might be utilised by develop-
ing countries struggling to maintain affordable access to
generic versions of essential medicines for diseases like
HIV ⁄ AIDS, malaria and tuberculosis. In addition to WTO
member states, the issue attracted prominent NGOs such
as Médecins Sans Frontières (MSF) and the Quaker Uni-
ted Nations Office, the generic pharmaceutical industry,
and concerned citizens groups who united to form a
loose ‘access to medicines’ network. Whilst a variety of
campaign tactics were employed, including issue fram-
ing, NGO-organised international meetings, and public
declarations, the strategy of forum shopping was critical
to the success of the network.
In lobbying for a more flexible interpretation of TRIPS
than that demanded by the US and European Commis-
sion (essentially seeking to protect the rights of their
research pharmaceutical industries), developing countries
were supported by the NGO campaigners to forum shop
at alternative policy-relevant international institutions to
build consensus for their position inside the WTO. The
World Health Organisation (WHO), where NGOs possess
greater participation privileges, was the key forum tar-
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geted. The WHO’s annual World Health Assembly (WHA),
proved an especially useful arena for policy debate. In
pressing the relevance of the TRIPS issue at this venue,
developing states, including South Africa and NGOs led
by MSF, sought to link the TRIPS and medicine
affordability issue to the HIV ⁄ AIDS crisis (Murphy, 2010,
p. 110). At the 1998 WHA meeting for example, NGOs
and developing states succeeded in expanding the list
of medicines deemed ‘essential’ by drawing attention to
public health crises in developing nations and their
struggles to access medicines and treatment in the face
of WTO rules. The Revised Drug Strategy developed at
the 1998 WHA meeting called upon WHO member states
to review their options in regard to maintaining equita-
ble access to medicines in the face of international trade
agreements (WHO, 1998). It also requested that the
WHO ‘report on the impact of the work of the World
Trade Organization (WTO) with respect to national drug
policies and essential drugs and make recommendations
for collaboration between WTO and WHO, as appropri-
ate’ (WHO, 1998). Further, the Revised Drug Strategy led
to the publication of a WHO booklet containing recom-
mendations for member states about how to implement
TRIPS in a manner that maintains the equitable avail-
ability of essential medicines (WHO, 2001). The WHO
subsequently became an observer on the WTO’s TRIPS
Council.
Developing country governments and public health
NGOs also forum shopped at other UN arenas including
the United Nations Conference on Trade and Develop-
ment (UNCTAD), the UN Sub-Commission for the Protec-
tion and Promotion of Human Rights, and the UN
General Assembly. The 2001 UN General Assembly Spe-
cial Session (UNGASS) on HIV ⁄ AIDS focused on the role
of IP rights in obstructing access to medicines in devel-
oping countries and received a substantial amount of
publicity. The discussions and resolutions issued by these
alternative arenas added to the pressure not only on
those states wishing to uphold a strict interpretation of
TRIPS, but also on the WTO to consider a more flexible
approach.
Ultimately, having forum shopped and successfully
promoted their argument in other policy arenas, devel-
oping countries, NGOs and the generic medicines indus-
try were moderately successful back in the WTO arena.
The 2001 Doha Ministerial Conference, having responded
to the weight of public pressure to address the TRIPS
safeguards, issued a declaration on public health, which
permitted developing countries to utilise the safeguard
measures to meet public health objectives. This was fol-
lowed by a 2005 decision to modify permanently the
TRIPS Agreement. The US however, unhappy with the
WTO decision, has since pursued a more limited interpre-
tation of the TRIPS safeguards outside this multilateral
arena. For instance, the US has looked to the Free Trade
Area of the Americas (FTAA) and other regional and
bilateral trade agreements where it has greater influence
to entrench its preference for a ‘TRIPS-plus’ standard of
intellectual property protection.
Case 3: International chemicals regulation
An illustration from international chemicals regulation
demonstrates both the complexity of forum shopping as
a means of advancing policy agendas and the successful
transferral of an issue from an arena to another that
actors considered more propitious. Chemicals is a sector
where licences to market, tariff barriers and intellectual
property rights have long been used as barriers to trade.
Firms welcome restrictions on products out of patent, or
products competing with those for which they hold pat-
ents. Through the development of principles on Good
Laboratory Practice and Mutual Acceptance of Data, the
OECD has advanced regulatory harmonisation. The
principles of chemical safety component of Agenda 21
(contained in Chapter 19) recommended phasing out all
‘toxic, persistent and bioaccumulative’ chemicals –
characteristics all metals share, which sparked political
activity by an industry that had previously responded to
metal toxicity issues on an individual commodity basis.
Chapter 19 unified the metals sector but divided it from
chemicals, because metals competed with various plas-
tics, and metals were undifferentiated commodities that
could not be patented (see Kellow, 1999).
The metal industry’s response came in different arenas.
The OECD Risk Reduction Program for existing chemicals
selected five substances for a pilot program: three
metals plus two synthetic chemicals of little economic
importance to the chemicals industry. The International
Program on Chemical Safety (IPCS), a joint ILO, UN
Environmental Program and WHO body, was already pro-
ducing Environmental Health Criteria (EHC) documents
(peer reviewed hazard identification documents),
allowing states to develop their own risk managementmeasures. Chapter 19 encouraged the establishment of
the International Forum on Chemical Safety (IFCS) which
(along with the IPCS and OECD) ultimately facilitated
development of the Rotterdam Convention on prior
informed consent and the Stockholm Convention on
persistent organic pollutants.
Two other forums were important: the Nordic Council
and the European Commission. Nordic countries had
developed a more stringent approach to chemical regu-
lation, with the Swedish ‘substitution principle’ being
adopted by the Council (Nielsson, 1978). Sweden, having
joined the EU, had five chemicals it identified for phase-
out in 1991 adopted as pilot substances by the OECD,
including cadmium, lead, and mercury. Swedish officials
saw the OECD Chemicals Program as an arena ‘where
the work may be expected to have repercussions in a
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wider circle of manufacturing countries’ (Sweden, 1991,
p. 29). Their reasoning was that the OECD’s work
‘receives a great deal of attention in the world of inter-
national chemicals, and agreements in the OECD have a
tendency to spread to non-members’ (Sweden, 1991,
pp. 29–30). Sweden sought political support for risk
reduction in the OECD and pushed development of an
OECD Council Act specifying risk reduction measures for
lead, not just within the OECD, but also in 1994 in the
Nordic Council. The Nordic Council therefore urged the
OECD to develop an Act on lead.
Sweden’s accession gave it five years to harmonise
its policies to those of the EU – or to harmonise those
of the EU to theirs. The OECD provided a useful forum
in which to advance this goal, but for non-Nordic EU
members it also offered an unusual forum where the
European Commission had only limited status, and
individual member states could resist Commission
attempts to caucus members. Both the European Com-
mission and the OECD were also arenas where the
chemicals sector enjoyed better access than the largely
unorganised metals sector. Eventually, OECD members
such as Australia forestalled the move towards an
OECD Council Act on lead by proposing instead a
Ministerial Declaration.
There were also EU attempts to regulate existing
chemicals, including metals, and the metals industry
played a classic forum shifting game to transfer issues
that threatened its interests to a preferred arena. In
1993, the European Council of Ministers adopted a Regu-
lation (EC 793 ⁄ 93) on the evaluation and control of the
risks of existing substances, which obliged the European
Commission to develop lists of priority substances
requiring immediate attention because of their potential
effects (see Kellow and Zito, 2002). In doing so, the Euro-
pean Commission took into account: the effects of the
substance on, the level of exposure by, and the lack of
data on the effects on humans or the environment; work
already carried out in other international fora; and other
European Commission legislation. The methodology for
priority setting, developed in consultation with the Euro-
pean Chemical Industry Council, weighted chemicals
highly if deemed persistent and in ‘wide dispersive use’,
but lowly if used in closed industrial systems. This
assumption minimised the impact of regulation on sub-
stances used as intermediate products within chemical
works (1 per cent weighting), in comparison to non-fer-
rous metals which were in widespread use (100 per cent
weighting). This led copper to be ranked seventh of all
hazardous chemicals and included on the second EU pri-
ority list for further investigation for risk reduction (and
the highly dangerous sulfuric acid ranked at 352). Other
metals, such as nickel and zinc, also fared poorly, while
methyl isocyanate (released in the Bhopal tragedy) was
rated lower than copper and zinc.
Copper and zinc were subsequently removed from the
second priority list after industry lobbying that demon-
strates the influence actors can have in shifting issues to
other arenas. The Australian and Canadian metals indus-
try persuaded their respective governments to sponsor
and fund (under UN auspices) the preparation of IPCS
EHC documents for each metal. Because of an agreement
to avoid duplication among international institutions, the
European Commission then dropped consideration of
these two chemicals (McCutcheon, 1998, p. 216) after
Rio Tinto lobbied the UK government to raise the agree-
ment within the EU. Once the IPCS decided – assisted by
the provision of funding – to prepare EHC documents,
the EU (at UK urging) dropped copper and zinc from the
priority lists for risk assessment. The use of extra-budget-
ary funding to drive the agenda (see Vaughan, Mogedal,
Kruse et al., 1995) was an important component of the
forum shopping strategy as it made the sponsorship of
work in the IPCS essentially cost free for the Australian
and Canadian governments.
Discussion
Combined with insights from the existing literature, the
preceding three illustrations of forum shopping provide
a starting point for a more systematic discussion of
forum shopping across policy issues at the global level
of politics. They provide a preliminary basis for under-
standing the purposes and circumstances in which actors
engage in forum shopping activities, their success in pro-
moting their interests in this manner, and significantly,
how forum shopping strategies may influence the effec-
tiveness of global governance.
Why do actors forum shop?
The key actors involved in our three cases engaged in
forum shopping activity for two key sets of reasons. First,
actors forum shopped in order to evade perceived unfa-
vourable institutional characteristics in a policy arena
and establish policy discussions in an alternative venue
deemed to possess characteristics more amenable to the
service of their policy goals. Second, actors engaged in
forum shopping in order to build momentum for policy
change.
Whilst many features distinguish policy arenas from
one another, we find that the following institutional
characteristics are particularly significant in understanding
why actors forum shop. These include arena membership,
decision making procedures (including participation
mechanisms for NGOs and business groups), enforce-
ment capacity, and issue mandate. This finding supports
Damro’s claims about the importance of these same
characteristics for forum shoppers in the EU arena
(2006).
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145
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In regard to membership and enforcement capacity,
labour standards proponents deemed the WTO arena –
due to its broad membership and relatively strong
enforcement mechanism – as an opportunity to improve
the adherence of developing countries with the core
labour standards by linking them to trade agreements. For
the TRIPS and medicines case, the limited access of public
health NGOs at the WTO as well as the organisation’s con-
sensus decision making procedures thwarted the goal of
increasing the flexibility of the TRIPS safeguards for devel-
oping members. Instead, the WHO, with a strong issue
mandate in health and where NGOs (unlike at the WTO)
were permitted to participate in WHO meetings, commit-
tees and conferences (WHO, 2009), provided an avenue
for advancing this cause. In this domain, the US was
under-prepared in attempting to defend its stance (Sell,
2003, p. 149). In the chemicals case, the differing member-
ships of the Nordic Council, EU and OECD and the differ-
ing mandates of the IPCS and OECD proved useful.
Forum shopping behaviour also enables actors to
access new audiences – and find new allies – that can
help build momentum toward policy change. The discus-
sion of labour standards at successive WTO ministerial
conferences generated a great deal of international
attention for the compliance of these standards and
debate about the linkage between trade liberalisationand labour regulation. For the TRIPS case, proponents of
greater flexibility faced a roadblock at the WTO. The
organisation’s consensus decision making procedures
effectively prevented the advancement of this discussion.
Instead, arenas provided by other international organisa-
tions proved far more useful for debating how the TRIPS
safeguards could be utilised to enable easier access to
generic medicines in developing nations. The WHO
deliberations allowed advocates to build a great deal of
momentum and pressure for action back at the WTO. In
the chemicals case, the goal for the metals sector was to
extract key chemicals from a hostile arena and shift the
process to one where restrictions on use would largely
be matters for national governments. As Levy and Egan
(1998) explain, industry enjoys greater influence in
domestic political arenas.
When is forum shopping successful?
A key insight in regard to forum shopping success gen-
erated by the case studies, supports (and extends) Alter
and Meunier’s (2009) notion of strategic inconsistency,
the tactic whereby actors turn towards another arena to
create contradictory rules. While the chemicals case com-
plies with our initial understanding of forum shopping –
the basic transfer of negotiations from one arena to
another perceived more favourable – the labour stan-
dards and Intellectual Property (IP) examples additionally
reveal that forum shopping can result in competitive
relationships between forums. For these cases, the policy
issue at stake had a clear ‘home’ arena, but due to insti-
tutional impediments (lack of enforcement powers at
the ILO and consensus rules at the WTO), actors sought
to progress discussions at more amenable alternative
institutions, following which the issue was returned to
the original arena.
In regard to the labour standards issue, the creation of
a strategic policy inconsistency via forum shopping at
the WTO put pressure on the ILO to maintain its status
as the dominant institution in regard to international
labour standards. The WTO’s foray into this area saw the
ILO respond with new agreements in the areas of mater-
nity rights and child labour, and the 1998 declaration;
the ILO also placed greater pressure on those states not
upholding the labour conventions to make progress in
doing so. For the IP and medicines case, the WHO was
used to advance the issue in much the same way – to
isolate those who opposed a more flexible interpretation
of the TRIPS safeguards within the WTO. As Pralle (2003,
p. 236) neatly summarises, ‘[a]lternative venues give poli-
cymakers and advocacy groups who are on the losing
side of policy an opportunity to go over the heads of, or
around, a policy elite intent on maintaining the status
quo’. One potent way to ‘go over the heads’ of oppo-
nents is to create a strategic inconsistency, in other
words, a strategic policy discrepancy, at an alternative,
but issue-relevant, forum.
In sum, the creation of a strategic inconsistency serves
two goals: maximising choice in deciding which arena’s
rules to adhere to, and second, applying pressure to the
favoured arena by creating a contradictory policy in oth-
ers. The second of these goals suggests a temporal
dimension to forum shopping: advancing an agenda in
one arena on a short term basis and, once sufficient
momentum for policy change has built, the transferal of
progress made back to the original arena.
The roles of nonstate actors – NGOs and business
groups – in regard to forum shopping success also
deserve mention here. Counter to the preoccupation in
existing literature that democratic global governance
requires formal participation mechanisms for nonstate
actors, particularly public interest NGOs (see Charnovitz,
2004; Payne and Samat, 2004), our examples support
Dunoff’s finding (1998, p. 434) that NGOs and business
groups do not always require formal participation
provisions in order to contribute to policy debates or even
engage in forum shopping activity. Though formal partici-
pation mechanisms for NGOs at the WHO played a role in
subsequently influencing the WTO in regard to generic
medicines, our cases also suggest that NGOs and business
groups may influence policy debates via forum shopping
by forming mutually beneficial relationships with nation
states (Murphy, 2010). For the labour issue, trade unions
lent a strong normative rationale (by emphasising human
Hannah Murphy and Aynsley Kellow
146
ª 2013 London School of Economics and Political Science and John Wiley & Sons Ltd. Global Policy (2013) 4:2
rights aspects) to the position of the US and other devel-
oped country governments seeking to maintain domestic
employment and wage levels, reduce trade deficits, and
benefit politically from supporting local industry.
Like NGOs, business actors also engage in their own
forum shopping and support states to exert influence in
various arenas. In regard to the TRIPS and medicines case,
the pharmaceutical industry split into two broad camps,
the research and the generics sectors. While the research
pharmaceutical lobby engaged with the US at the domes-
tic level, the representatives of the generics industry
aligned with developing country governments and public
health NGOs to operate largely at the international level
through the WHO and other UN institutions (on the con-
nections between the generics industry and the NGOs, see
Murphy, 2010). Emphasising the human rights and sover-
eignty dimensions of the TRIPS and public health issue,
the NGO campaign helped obscure some of the economic
interests of developing countries and generic medicine
manufacturing firms seeking to maintain their market
shares. The chemicals case clearly demonstrates the
continuing importance of state actors for business groups,
especially when they can use their greater influence in
domestic political arenas to push for action.
Whilst the institutional characteristics of arenas pro-
vided by various international organisations may serve as
magnets for actors seeking to advance their policy goals,
our illustrations have shown that institutional characteris-
tics can also prove obstructive. For powerful states, multi-
lateral venues with very large memberships may have the
effect of diluting their influence due to the cacophony of
voices, especially in venues where members possess equal
voting rights. In relation to the labour standards issue, the
US and other relatively powerful industrialised states and
their trade union allies were not able to overcome the
WTO’s institutional constraints to enact a labour clause.
Specifically, the organisation’s decision making proce-
dures, based on consensus and the ‘single-undertaking’
approach, were unhelpful for labour standards propo-
nents in integrating this new issue into the multilateral
trade regime. Instead, the US has retreated to venues with
smaller memberships such as bilateral and regional FTAs
where it exerts greater influence, in order to promote
adherence to labour standards in the trade context. In
addition to calling for systematic research on when
forum shopping strategies fail, this finding points to
the need for further investigation into the forum shop-
ping tactics of powerful vis-à-vis middle powers and
less developed nation states.
Forum shopping ramifications for
global governance
In addition to the questions of why actors forum shop
and when they may encounter success, the larger issue
of the impact of forum shopping on global governance
is an important one. While some scholars lament forum
shopping behaviour as simply interest-driven and oppor-
tunistic (Gillespie, 2002) or highlight possible account-
ability deficits arising from forum shopping (Koppell,
2010), our discussion shows that it may be functional for
overcoming the limitations of individual arenas at the
international level by providing venues for states to
advance international agreements. This aligns with
Lachowski’s research findings in the area of landmines
(1998). Attempts also to improve adherence with
internationalregulations (though they are not always
successful) can create inter-organisational competition, a
type of race-to-the-top, whereby institutions scramble to
retain their dominance in a given policy area. This may
give rise to forums engaging in their own shopping for
participants to shore up their status. Alternatively, forum
shopping may lead to greater cooperation between glo-
bal policy arenas. The TRIPS debate for instance resulted
in greater communication between the WTO and WHO
on the intersections between international trade and
health policy. Further, it is possible that forum shopping
in global governance may even involve protagonists
establishing new forums, as has been reported in
domestic level policy making (see Nagel, 2006) and was
the case for the chemicals example with the establish-
ment of the OECD’s Risk Reduction Program. Another
prominent example is the World Social Forum, which
was established to protest the exclusion of social justice
and environmental NGOs from the World Economic
Forum and provide an alternative arena in which to dis-
cuss the interconnections between economic policy,
social justice and the environment (Pianta, 2003). A fur-
ther potentially very significant effect that deserves
research attention is whether forum shopping, by facili-
tating either competitive or cooperative relationships
between global policy arenas, may over time hold the
potential to create, restructure, link or challenge interna-
tional regime complexes (Raustiala and Victor, 2004).
Conclusion
In highlighting the significance of forum shopping for
global governance, and offering suggestions as to why
actors forum shop and their likely success, this article
seeks to provoke more systematic research into this
activity. Our cases, though we provide only three, sug-
gest that institutional characteristics including member-
ship, issue mandate, decision making procedures and
enforcement capacity shape actors’ preferences in seeking
to build momentum for policy change, engage reluctant
states in policy deliberations, or broaden understandings
of policy problems. For two of our three cases, alterna-
tive venues were useful for state and nonstate actors in
creating strategic inconsistencies in policy that ultimately
Forum Shopping in Global Governance
147
Global Policy (2013) 4:2 ª 2013 London School of Economics and Political Science and John Wiley & Sons Ltd.
pressured the original forum to take action on the prob-
lem at stake. Our findings also demonstrate that even
more powerful governments do not always dominate
multilateral policy making arenas; they too must navi-
gate forum rules and procedures, especially in larger
multilateral venues. Another important inference drawn
from the case illustrations is that NGOs and business
actors play important roles in global policy development
that are not necessarily dependent upon formal partici-
pation rights within policy venues. These roles include
the provision of normative justifications for policy
change and the publicising of issues to put pressure on
other actors to agree to a policy change. Business actors,
whether they present in the form of business associa-
tions or individual firms, often prefer to lobby states on
an individual basis at the national level where they typi-
cally enjoy greater influence than in international arenas.
Finally, this article has suggested that a global gover-
nance system comprised of duplication and overlap in
issue mandate (rather than large multilateral single issue
arenas) may be beneficial for advancing actors’ policy
agendas. Further investigation into the variants of forum
shopping and the circumstances in which it is likely to
be effective are required to help shed light on this activ-
ity’s potentially significant consequences for the global
policy architecture.
Notes
1. Vogel, 1989; Baumgartner, 1989, McFarland, 1991; Sabatier and
Jenkins-Smith, 1993, 1999; Baumgartner and Jones, 1993; Godwin
and Schroedel, 2000; Wilson, 2000; Hansen and Krejci, 2000; Bur-
nett and Davis, 2002; Pralle, 2003; Nagel, 2006.
2. But see Helfer, 1999, 2004, 2009; Meyer-Bisch, 2001; Braithwaite
and Drahos, 2000; Guiraudon, 2000; Lachowski, 1998; Sheingate,
2000; Damro, 2006; Smythe, 1998; Wendon, 1998.
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Author Information
Hannah Murphy is a lecturer in the School of Government at the
University of Tasmania, Australia. She has published work on the
World Trade Organisation and the roles of NGOs in global gover-
nance processes. Her current research focuses on the labour stan-
dards regime, forum shopping and the international trade union
sector.
Aynsley Kellow is Professor of Government at the University of
Tasmania. His most recent book (with Peter Carroll) was a study of
the OECD, and he has also published books and articles on interna-
tional risk management, trade, energy, and climate change policies,
and on non-state actors. He is currently Chair of IPSA’s Research
Committee 38 (Politics and Business).
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