Forum Shopping and Global Governance

Over the past few decades, the participation of states, business actors and NGOs in global governance has become a fraught exercise. Not only have the number of possible arenas for policy development proliferated, but each arena has its own organizational characteristics that vary widely thereby presenting forum choices and opportunities for policy actors to participate. For example, arenas are distinguished by membership, decision-making rules and procedures, and the strength of enforcement mechanisms, to name but a few important considerations. Furthermore, there is growing frustration amongst all participants—governments, business and NGOs—about the largest multilateral arenas, such as the WTO and the UNFCCC, where consensus rules make for slow negotiating progress and often lowest common denominator decision-making. Meanwhile, smaller negotiating arenas with limited membership have developed in parallel to the major multilateral organisations where fewer participants seek to accelerate and enact more advanced accords and agreements when multilateral negotiations stall. This is especially obvious in the area of international trade negotiations but is also present in environmental policy arenas.

The aforementioned developments in global governance give rise to important questions about the consequences of the proliferating number of global policy arenas, the rise of what have become known as “regime complexes”, and in particular, the strategic use by actors of alternative arenas to stall or advance negotiations, also known as forum shopping. Thus far, much of the emerging literature in this area is rather pessimistic about the forum shopping phenomenon, highlighting concerns about the stability of governance arrangements, the promotion of unhealthy competition between arenas, and accountability deficits. A recurring theme is that the proliferation of policy arenas is a signal of the failure of multilateralism and the rise of unilateralism by powerful nation-states. In contrast, we remain cautiously optimistic that forum shopping is essentially a functional activity that promotes healthy competition between arenas, and in many cases, can be used to support multilateralism and advance policy negotiations.

The political tactic of forum shopping is increasingly utilised by actors that participate in the expanding area of global governance. As we established in our 2013 Global Policy article, one of the first on the subject, forum shopping (or venue shopping) involves the strategic selection and use of policy venues by any political actor—a nation-state or non-state actor—in order to advance an agenda (Murphy and Kellow, 2013). This may involve the multiple, reiterative use of various arenas, including reviewing an issue in the original arena or building or blocking support for policy action. In this paper, we draw together the latest insights on the topic of forum shopping as they have developed in this research stream since the publication of our initial article. We offer further examples of forum shopping from the policy areas of climate change and international trade. In the concluding section, we offer some conclusions about the impacts of forum shopping and the regime complexes that this activity promotes and argue that the phenomenon can be harnessed to build and support effective global governance.