10.1 Introduction

Since 1924, the American Petroleum Institute (API) has developed nearly 700 safety standards and recommended practices covering all segments of the oil and gas industry. Many of API’s standards and recommended practices are incorporated into public regulations, to the point that they are considered the most used standards by national regulators in the oil and gas industry.

This chapter analyzes the organizational changes of the API as a response to pressures and demands from public authorities and investigations in the aftermath of the Deepwater Horizon (DWH) oil spill, the major environmental accident in the oil and gas industry in the United States. The DWH oil spill created new incentives and rationales for API to internalize the need for change.

This exogenous event, and the reaction of the API, will contribute to shine light on the mechanics and dynamics of resilience of transnational private regulators and on the relation between public and private authority – in particular on the capacity (or lack thereof) of the former to effectively enroll, steer, and influence the latter. The organizational response of the API to the regulatory crisis created by the DWH accident support the findings of other chapters in this book that argue that that private bodies grow stronger out of episodes and shocks.Footnote ¹

Besides API, this chapter focuses on the Bureau for Safety and Environmental Enforcement (BSEE), the federal regulator for offshore oil and gas exploration and production in the United States, in order to investigate how public authorities react to changes undertaken by private regulators in times of crisis. Qualitative research methods such as case studies and the analysis of regulations and investigation reports are used to explain the reorganization of private and public regulators after major accidents in the offshore oil and gas sector.

Section 10.2 explains the emergence of the API as a transnational private regulator and its dynamics such as the resistance to federal safety regulations. Section 10.3 analyzes how the DWH oil spill and the introduction of safety regulations by BSEE became drivers for API’s change. Section 10.4 examines the organizational responses introduced by the API in order to adapt itself to the new demands from the public regulator. Section 10.5 discusses the co-regulatory scheme adopted by BSEE legitimizing the response of API. Taking into account the transnational nature of the API and its organizational changes, Section 10.6 identifies the lessons that regulators beyond the United States may learn in order to promote safety in the offshore oil and gas industry, and monitor compliance with safety standards. Section 10.7 provides conclusions.

10.2 The API’s Strength and Relative Influence as a Transnational Private Regulator

10.3 The DWH Accident

10.4 The API’s Organizational Response to the DWH Accident

10.4.2 The Governance of COS

COS is governed by a charter, governing procedures, and the governing board. The charter establishes COS’ objectives, guiding principles, responsibilities, and API oversight and interfacing. In turn, the governing procedures provide information on the policies and procedures for COS’ governing board, its activities, and guidelines for its conduct. The Center’s governing board consists of a maximum of twenty-four members that represent oil and gas producers, drilling contractors, service companies, and industry associations. As stated in COS’ charter and governing procedures, the API has several mechanisms to control the Center. These mechanisms comprise the approval of COS’ board members, charter, and annual plans, reporting obligations, and the revision of all work products developed by COS intended to inform member companies, industry, and the public.Footnote ⁴¹ The Center is accountable to, and must interact with, several API committees and follow the API’s internal policies and procedures.Footnote ⁴² Regarding its structure, COS works through subordinate groups approved by the board, which are designated as committee, subcommittee, or work group.Footnote ⁴³ Figure 10.1 presents an overview of the COS’s structure.

Figure 10.1. The structure of COS

Source: The author, adapted from COS, 2020

Besides the governing board, COS has six groups. The first group is a single point of contact committee to manage communication between COS and member companies. The five remaining groups are the accreditation body, the SEMS audit and certificate committee, the data collection analysis/reporting committee, the good practice development pillar, and the sharing industry knowledge pillar. From all the activities developed by the Center, the groups in charge of the accreditation body and the SEMS audit and certificate committee perform functions directly related to the monitoring of the SEMS program.

10.5 Changes to SEMS Regulations: Introducing a Co-regulatory Scheme

10.5.1 The Role of COS for the Implementation of SEMS Regulations

The role of COS in the implementation of SEMS regulations has increased over time. Just a few years after its creation, BSEE embraced the Center and provided it with a formal role in the implementation of SEMS programs. Such a formal role was the result of acknowledging the leadership that COS displayed to guide operators in their audits. In order to assume leadership in the audits processes, in 2012, COS started an audit service provider (ASP) accreditation program.Footnote ⁴⁴ The goal of the program was to improve the audits through a consistent and unified set of requirements for ASP and their auditors.Footnote ⁴⁵ For this purpose, in 2012, COS adopted a series of standards to guide operators on how to conduct audits (SEMS toolkit) and the competences that ASP’s and auditors should fulfill (ASP – accreditation program). The proactive role of COS was acknowledged by BSEE in 2013 when it adopted SEMS regulations II (SEMS II).

SEMS II modified several aspects of the SEMS program both in its content and the auditing process. With respect to the content of the SEMS program, SEMS II included best practices that were not covered by the API RP-75 regarding the involvement of the workforce in the SEMS program. Therefore, besides the thirteen elements established by the API RP 75 third edition, operators must include four new elements in their SEMS program: stop work authority, ultimate work authority, employee participation plan, and reporting unsafe working conditions.Footnote ⁴⁶ Figure 10.2 presents a diagram with the seventeen elements of the SEMS program, highlighting in blue those established by the API RP-75 and in yellow those incorporated by SEMS II.

Figure 10.2. The seventeen elements of the SEMS program.

Source: The author, based on SEMS II

Regarding the audit process, SEMS regulations II indicate that audits should only be conducted by independent third parties, which were called audit service providers (ASPs). In turn, the ASPs must be accredited by an accreditation body (AB) approved by BSEE as an independent third-party organization that assesses and accredits ASPs.Footnote ⁴⁷ In 2015, BSEE approved COS as the first and, so far, only AB to accredit ASPs.Footnote ⁴⁸ Since June 2015, all SEMS programs must be audited by a COS-accredited ASP. As of March 2021, COS had accredited five ASPs.Footnote ⁴⁹ Figure 10.3 illustrates the roles of BSEE, COS, and ASPs in the audit scheme.

Figure 10.3. SEMS II third-party audit scheme.

Source: The author, based on SEMS II

Besides these changes, SEMS II required operators to comply with three COS standards related to the third-party audits. With SEMS II, BSEE introduced a model of co-regulation to monitor the implementation of the SEMS program elements of which are analyzed in Section 10.5.2.

10.6 The Transnational Dimension of the API’s Organizational Changes and Lessons for Regulators beyond the United States

The API has taken several steps to strengthen the transnational dimension of its organizational changes both around COS and the API RP-75. Since 2012, COS has developed a SEMS certificates program to demonstrate that an organization has completed a SEMS audit by an accredited ASP and satisfies the requirements of the API RP 75.Footnote ⁹⁷ Though initially the certificate was only allowed for COS members, in 2020, COS allowed non-COS member companies and operations outside the United States to obtain the SEMS certificate.Footnote ⁹⁸ The certification program is open not only to operators but also to drilling contractors and other offshore service providers. Furthermore, in 2019, the API published a new edition of its RP-75 in order to strengthen its global relevance.

Even before these changes, other regulators around the world had adopted the API RP-75 in their regulations.Footnote ⁹⁹ Safety regulators beyond the United States that endorse the API RP-75 for offshore oil and gas operations may have several lessons to learn from the experience in the United States. One of the lessons is that the sole adoption of the API RP-75 does not guarantee that oil and gas companies are implementing best safety practices in their operations.

Indeed, SEMS regulations II by BSEE and several investigation reports evidenced that API RP-75 does not reflect several good practices in the offshore oil and gas industry, such as the involvement of the workforce in the management system and current process safety principles, including a risk reduction goal, a focus on major hazards, measurements, and metrics.Footnote ¹⁰⁰ The first deficiency was addressed by SEMS II, however, the other issues were not tackled by the regulation nor by the new version of the API RP-75. Therefore, regulators should consider to complement the API RP-75 with their own regulations in order to incorporate good practices missing in this standard.

Another lesson is on the implementation of the API RP-75. The BSEE has developed a whole third-party scheme to audit the SEMS programs. Other regulators should be aware that it is not sufficient just to adopt the API standards in their regulations, it is important to follow up with mechanisms to ensure that oil and gas companies are actually complying with such standards. Regulators can verify the compliance with standards directly or use third parties. When developing third-party audit schemes, a good practice is to put in place mechanisms to ensure their independence from the regulated industry.

10.7 Conclusion

After the major accident in the history of the oil and gas industry in the United States and the criticisms that emerged against the API as private standard-setter, it would have been expected that the regulatory reforms adopted after the accident reduced the reliance of the federal regulatory framework on the API. Looking back, during the decade after the accident, BSEE not only neglected the recommendation of reducing its dependence on the API but increased it in more dimensions than the regimen that preceded the oil spill. Despite the criticisms, the API adapted to the post DWH–era, strengthening the influence of its safety standards in the federal regulatory framework and through organizational responses that allowed it to fill some of the gaps identified by investigation reports. The resilience of the API in the wake of the DWH disaster is the result of its decades of expertise, resources, and leadership in the offshore oil and gas industry that contrast with a public regulator in need of those resources. Over time, BSEE has been receptive to the solutions provided by the API and endorsed them with the introduction of a co-regulatory regime for the implementation of SEMS regulations.

Though this new co-regulatory regime still has to stand the test of time, there are already concerns on its effectiveness. The most significant concern is that the goal of BSEE endorsing the API RP-75 was to implement a performance-based rule to manage the risks of offshore oil and gas operations. Yet the formulation of the API RP-75, its implementation, and the audits are far from a performance-based approach. The model remains prescriptive with the risk of reducing the SEMS program to paperwork disconnected from operations in the real world and far from achieving its goal of improving the safety and environmental performance of oil and gas companies. Precisely, the disconnection between the implementation of SEMS, its effectiveness, and the lack of indicators that show how the environmental and safety performance of operators has evolved since the implementation of SEMS is one of the aspects that undermine the co-regulatory scheme. The scheme could benefit from more transparency by the BSEE as a meta-regulator, analyzing those indicators on an annual basis and evidencing how it has used its oversight powers to ensure compliance with the scheme or introduce the changes needed to make it effective.

Given the transnational nature of the API, its response to the DWH accident has also implications for regulators outside the United States, who have several lessons to learn regarding the strengths and weaknesses of the API RP-75 and the challenges to implement it.

In this way, the analysis on the resilience of the API in times of crisis and the increase of the interdependence between public and private authorities contributes to the empirical evidence on proactive free-riding discussed in this book, particularly in the chapter on the resilience of private authority in times of crisis. The reorganization of the API after the DWH accident provides an example of the perpetuation of private regulatory power not only regarding rule-making but also monitoring the implementation of standards.

11.1 Introduction

This chapter looks into the response of the global, public–private regime of anti-doping regulation in sports to the Russian doping scandal from late 2014,Footnote ¹ which revealed a state-sponsored doping scheme that enabled Russian athletes to take prohibited doping substances during their preparation for and participation at several international tournaments. The scandal highlighted the inadequacy of the system’s regulatory framework and raised multiple accountability issues relating both to the “field level” and the governing level. The former includes actors involved in the operational aspect of the anti-doping policy, namely athletes, local anti-doping agencies, and testing laboratories, and the latter includes the governing body of the sports governance regime, the International Olympic Committee (IOC) and its anti-doping regulator, the World Anti-Doping Agency (WADA).

The scandal put enormous pressure on the IOC and WADA to demonstrate a strong accountability response. In this chapter, we explore the resilience of the regime by examining whether and to what extent it has been responsive to accountability calls. We look into two key aspects of the regime’s response: Its ad hoc accountability measures as well as systemic changes to its accountability framework. This is to address both notions of accountability – “as a virtue” and “as a mechanism.”Footnote ² The former refers to the normative dimension of accountability and focuses on whether an actor takes measures that others see as signs of responsible conduct. The latter refers to the prescriptive-legal dimension of accountability and analyzes whether appropriate accountability provisions are set out in the regime’s legal framework.

The anti-doping regime is an interesting case for the study of organizational resilience and adaptability because, at the time of the scandal outbreak, it lacked an accountability mechanism for its governing organizations – the IOC and WADA. Neither of them was subject to the formal scrutiny of stakeholders, their performance indicators were not defined, and they could not bear any consequences for their potential failures or underperformance.

Prior to 2015, the Olympic regime’s legal framework and related statutory documents, such as the Olympic Charter and World Anti-Doping Code, defined none of Mashaw’s five parameters of accountability: To whom, how, for what, in accordance with what standards, and with what consequences its governing organizations are accountable.Footnote ³ Furthermore, the regime has featured a favorable political economy for non-responsiveness to stakeholders, as athletes from around the world and other regime stakeholders, such as sponsors, sports clubs, and sports federations, could not defect to or create a competing international sporting regime. This has rendered the IOC and the wider sports governing regime a “hard case” for the pursuit of accountability.

Given this constellation, the Russian doping scandal has posed a curious empirical puzzle: On the one hand, the regime has found itself under enormous legitimacy pressure. A theoretical expectation is that, in such situations, regimes seek to demonstrate a strong accountability response. The exercise of accountability is crucial for repairing lost legitimacy,Footnote ⁴ and legitimacy represents a critical “ingredient” for regimes’ survival. On the other hand, the regime’s “foreclosed” political economy has afforded it a position from which it could demonstrate little responsiveness to stakeholders’ concerns at almost no cost to the formal position and power of its governing organizations.Footnote ⁵ What, then, has the regime’s accountability response been in this constellation featuring two contrasting forces, namely soaring legitimacy pressures versus a “foreclosing” structure?

11.2 The Practice and Systems of Accountability in Transnational Regimes

11.3 The Setup of the Anti-doping Regime Prior to the Scandal Outbreak

The anti-doping regime is a hybrid, polycentric regime, nested within the global system of sports governance.Footnote ¹⁶ It is comprised of several actors who come from two main communities, namely the sporting and anti-doping communities (See Figure 11.1).

Figure 11.1. The structure of the anti-doping regime as a regime nested within the broad international system of sports governance

At the uppermost level is the IOC, which is the supreme authority of the global sports governance system. The IOC is a nongovernmental sports organization based in Switzerland, created in 1894, responsible for promotion of the Olympic movement and organizing of the Summer and Winter Olympic Games.Footnote ¹⁷ At a lower, medium level of the governing tier of the regime, is WADA, the global anti-doping regulator whose task is to develop and oversee the implementation of the anti-doping policy in international sports. WADA was established in 1999Footnote ¹⁸ after a group of governments put pressure on the IOC to create a specialized anti-doping regulator as a response to the doping scandal in cycling.Footnote ¹⁹

WADA’s mission is to direct and monitor the work of specialized anti-doping organizations. Its tasks include research, education, development of anti-doping capacities, and monitoring of how the World Anti-Doping Code (henceforth, Code) is enforced by anti-doping organizations and by members of the Olympic system.Footnote ²⁰ WADA’s work is governed by the regime’s statute and the Code, whose provisions have been incorporated into international legislation through UNESCO provisions and the Council of Europe Convention on Sports.Footnote ²¹ The Code is globally harmonized, having been adopted by a large number of Code signatories, including the IOC, the vast majority of international and national sports federations, national and regional anti-doping organizations, local anti-doping laboratories, and other actors.

Although it is a stand-alone regulator, WADA, by institutional design, enjoys low institutional autonomyFootnote ²² from the IOC. Since its creation, WADA has been run (and funded) in equal proportions by IOC representatives and representatives of national governments, who each nominate eighteen membersFootnote ²³ out of the maximum thirty-eight of the WADA Foundation Board. Similarly, the Executive Board of WADA, a twelve-member body elected by the Foundation Board, comprises an equal number of government and IOC delegates.Footnote ²⁴ Despite this parity, in practice, the IOC’s influence over WADA is perceived as greater because its members, both on the WADA Executive Committee and on the Foundation Board, make for a more homogenous bloc and mobilize more easily.Footnote ²⁵ A WADA director general is not allowed to hold dual roles, although all of WADA’s presidents in their prior career had served as IOC members (most of them coming from a prior governing role in an international or national sports federation).

At the lowest operational level of the anti-doping regime are specialized anti-doping bodies and sport governing organisations. These specialized bodies include regional and national anti-doping organizations (RADOs/NADOs) and testing laboratories. Sport governing bodies include international sports federations (IFs, of which there are more than fifty globally, one for each sport in the Olympic realm). While WADA sets the anti-doping policy, develops doping standards, and monitors their implementation, these standards are in practice implemented by the RADOs and NADOs, whose mission is to develop strategies that set out when and which athletes will be tested. RADOs and NADOs direct and execute the testing of athletes, and when they discover that an athlete has violated the Code by taking a prohibited substance, they are supposed to inform the athlete’s sports organization, which then determines the sanction (within the statutory prescribed range). The appellate body for doping-related sanctions is the Swiss-based Court for Arbitration in Sports (CAS).Footnote ²⁶ The work of RADOs and NADOs is overseen by WADA.Footnote ²⁷

11.4 The Outbreak of the Scandal and the Regime’s Accountability Reactions

News of the Russian doping scandal broke in 2015 after German TV channel ARD released a documentary in which two Russian whistleblowers – a medal-winning runner and her coach – confessed that the Russian authorities had orchestrated a doping scheme in order to maximize the achievement of Russian athletes at international competitions.Footnote ⁴⁰ The scheme had been going on for several years, enabling a number of Russian athletes to compete doped at several major international competitions, including the 2012 Olympic Games in London and the 2014 Winter Olympics in Sochi. About a year later, a Russian doctor, Grigory Rodchenkov, who had defected to the United States from the Moscow Anti-Doping Center (Russia’s laboratory), confirmed the scheme in an interview with the New York Times in which he revealed further details of Russian public authorities’ involvement.Footnote ⁴¹

As the scandal gained public traction, WADA decided to investigate it. Thus, within a year (November 2015–December 2016), WADA undertook two investigations that resulted in three reports, all finding considerable evidence of a state-orchestrated doping scheme.

The first investigation, led by the former WADA President Richard Pound, found evidence that, both voluntarily and under pressure, athletes were taking doping substances in order to improve their individual and team performances.Footnote ⁴² The report also found that the cheating was facilitated and covered up by doctors, coaches, and laboratory personnel, indicating “a deeply rooted culture of cheating” in the Russian Olympic team.Footnote ⁴³ In some sports, such as athletics, cheating was further facilitated through corruption at the international federation level, where intermittent reports of possible doping were ignored or covered up.Footnote ⁴⁴

The second investigation, led by Richard McLaren, a Canadian attorney and a former president of WADA, focused on the 2014 Winter Olympics. This investigation resulted in two successive reports. The first report, published prior to the Rio Olympics in July 2016, drew on witness testimony, analysis of thousands of documents, forensic analysis of seized hard drives, urine samples, and laboratory results.Footnote ⁴⁵ The report found, beyond reasonable doubt, that there had been an orchestrated doping scheme during the Sochi Olympics, which was perpetuated through a so-called disappearing positive (test) methodology at the testing premises, where state intelligence agents were swapping dirty urine samples with pre-supplied clean samples at the lab, located in the Olympic Village.Footnote ⁴⁶ From a tiny fraction of reexamined samples that were declared clean following the initial laboratory analysis, the investigation found that as many as 643 were, in fact, positive.Footnote ⁴⁷ The full scale of the cheating could not be determined though, since the vast majority of the samples were still being withheld by Russian authorities.Footnote ⁴⁸

The second McLaren report was published after the Rio Olympics in December 2016. It discovered more than 1,000 new positive samples of Russian athletesFootnote ⁴⁹ relating to prior competitions. Based on this, the report concluded that the scheme had been in place for several years at least, and that, over time, particularly prior to and during the 2012 London Olympics and the Winter Olympics in Sochi, it was further refined.

Overall, the WADA investigations found that the doping scheme involved over 1,000 Russian athletes in more than 30 sports who were assisted or pressured by their medical staff to take doping substances. These findings put pressure on the anti-doping regime to act in two main directions: (a) to sanction the perpetrators of the scheme and those actors whose omissions, or complicity, allowed the scheme to continue until the scandal broke and (b) to improve the governance structure of the anti-doping regime in order to reduce opportunities for athletes to dope with impunity.

11.5 Analyzing the Regime’s Resilience through Its Accountability Response

This section analyses the anti-doping regime’s response in the five years after the scandal, looking across the five dimensions of accountability set out by Koppell.Footnote ⁵⁰

11.6 Discussion

Reflecting on the regime’s response across the five accountability dimensions, several observations can be made.

First, the anti-doping regime has, overall, demonstrated in the five years after the scandal some degree of accountability in its response to the Russian doping scandal, certainly more than it was mandated to do by the formal legal framework. Accountability can, therefore, be pursued as a virtue even when accountability as a mechanism does not exist.Footnote ⁸²

Second, the levels of demonstrated accountability vary across its different dimensions. It is not possible to compare with precision whether the extent of accountability is greater, and how much, in one dimension rather than another, so any attempt to “weigh them” up against each other would be a rough approximation. Still, it seems safe to say that the regime’s response in the transparency and controllability dimensions has been stronger than in the other three dimensions. Liability was partially demonstrated in both the reactive and proactive aspect. We have also seen only partial responsiveness to stakeholders’ demands and needs, although the level of responsiveness was somewhat greater in WADA than the IOC.

What does this variation across these five conceptions of accountability tells us regarding a regime’s resilience? It could be the case that increasing transparency is the easiest response to a legitimacy crisis. It could also be that the immediate response is first demonstrated as a virtue, and thereafter it can set in motion a process of further institutionalization, that is, the establishment of accountability as a mechanism.Footnote ⁸³ “Giving in” to other aspects of accountability might be less opportune, that is, more threatening to a regime’s or an organization’s power; increasing transparency could be seen as the least “sacrificing” accountability measure. A strong transparency response is also in line with commonly observed post-scandal organizational behavior where, often, one of the first responses that an affected organization takes is to increase its transparency, with the aim of restoring the stakeholders’ trust.

Further, we could see that, following the scandal, some degree of institutionalization of the regime’s accountability framework has occurred. Five years after the crisis, the anti-doping regime has formalized certain accountability parameters, both at the enforcement and governing level. That was not always the case in the previous history of the regime. During the first fifteen years, from WADA’s creation in 1999 to 2015, the regime did not take measures that would lead to the institutionalization of its accountability framework, despite occasional calls for this and intermittent voices of discontent with the regime’s performance.Footnote ⁸⁴

Why has the regime’s accountability response differed this time then? It is possible that the severity of the crisis played a role. Unlike prior calls for a stronger accountability response, the Russian doping scandal has the features of a ‘focusing event,” which, as observed in the literature on policy dynamics, can precipitate major change after long-standing inertia and long periods of stasis.Footnote ⁸⁵ The noninstitutionalized accountability framework has set in motion a strong “negative feedback” dynamic, which for a long time helped the regime deflect pressures for change and resist major reform. If we look into the institutionalization of the regime’s accountability framework over a wider period of twenty years, the model it has developed conforms to the punctuated-equilibrium model of institutional change,Footnote ⁸⁶ rather than an incremental one. This suggests that systems with noninstitutionalized accountability frameworks might “push” regimes toward rarer yet more intense episodes of institutionalization. In systems that have some form of institutionalization from their outset, it is likely that changes to the system will be more frequent and probably less comprehensive, as its governing actors will be more responsive to demands for change.

Third, the extent of undertaken accountability response was strongest at the lowest, operational level, and it decreased as one moves up the hierarchy. At the top, WADA regime’s gave strong accountability responses in some respects – fewer than it forced at the lowest operational level, and the IOC showed accountability response in even fewer aspects than WADA.

The institutionalization of the accountability framework varies across the regime’s tiers. As one moves up the hierarchy of the accountability framework system, the degree of institutionalization decreases. As Table 11.2 indicates, this institutionalization is stronger at the bottom, the enforcement tier of the system, than at the upper tier, the governing tier. The differences between WADA and the IOC could be indicative too.

This suggests that the observed model is one of “nested institutionalization.” What does this model indicate? Two observations can be made. First, that the limits to how extensive one’s accountability response will be were probably conditioned by the regime’s initial noninstitutionalized framework. Its “void accountability” did not oblige the governing organizations to be fully responsive to wider expectations. This afforded them the “luxury” to attend to calls for accountability only to a certain point. Second, the extent to which the IOC resisted an extensive accountability response, as opposed to WADA, was probably mediated by the power dynamic between them. The legal organizational framework gave the IOC a comfortable “starting position.” As mentioned, before the crisis, the IOC enjoyed the position of the regime’s supreme authority, under a constellation where its stakeholders did not have “exit” possibilities. From a political economy perspective, this means that the cost of limited accountability response is nonexistent or lower than in other transnational regimes.

Of course, the observed period of five years, while long enough to cover more than a full Olympic cycle, could at the same time be viewed as only a snapshot of a longer transformative period. Thus, one could argue that the regime’s accountability development is still “in flux” and that the framework that has emerged so far is not yet consolidated. It is difficult to predict whether the extant accountability process will “accelerate,” “slow,” or “halt” in the coming period. Still, an interesting question that could be raised is whether WADA’s ongoing progress in accountability institutionalization will have any implications for the internal regime’s power play. Will WADA’s stronger accountability response give it an opportunity to profile itself as an “accountability champion” within the anti-doping community – specifically when juxtaposed to the IOC – and, if so, will this have any implications for the regime’s future transformation? As WADA potentially increases its legitimacy within the system,Footnote ⁸⁷ this could build momentum to force the IOC to change its own accountability structure, too. Currently, the IOC still enjoys supreme authority in the system, primarily because of the present institutional design according to which its members and leadership cannot be changed externally or be subjected to external accountability forums. This might keep eroding its reputation within the system and increase pressures to institutionalize its own accountability, but at the same time the IOC will still have a strong institutional basis to keep its position of superior authority. In any case, it will be interesting to see how their respective pursuit of accountability will shape future development of power-play between the IOC and WADA.

11.7 Conclusion

In this chapter, we analyzed, from an accountability perspective, the response of the global sports anti-doping regime to the Russian doping scandal. We have asked two questions. First, could legitimacy pressures force the pursuit of “accountability as a virtue” even when formal “accountability as a mechanism” is nonexistent? Second, can legitimacy pressure lead to an institutionalization of a regime’s accountability framework?

The analysis yielded three main findings, which contribute to our understanding of the drivers of the evolution and resilience of transnational private regulation organizations amidst a crisis:

• First, in the face of major legitimacy pressure, which in our case occurredfollowing a “system shock,” there will be a pursuit of accountability as a virtue despite the nonexistent accountability mechanism. Put differently, the normative can overcome the formal-legal (design).

• Second, noninstitutionalized frameworks can evolve into institutionalized ones; and partially institutionalized frameworks can evolve into more fully institutionalized frameworks. There are limits to the “negative feedback” potential that a noninstitutionalized framework will have in retaining the status quo. Strong legitimacy pressures can catalyze institutionalization, even in the most unfavorable structural environment.

• Third, although legitimacy pressure can be a catalyst of a regime’s institutionalization of accountability, at the same time this will be limited by the regime’s prior structure. Legitimacy can “bend” even the most “resistant” structure, but the more resistant the structure is, the less range this bending will have. The extent of accountability demonstration will be shaped by power struggles, and where the prior structure accords one governing actor the position of supreme authority, the accountability institutionalization will be most pronounced in the “lower tiers” of the system.

12.1 Introduction

Future observers will not hesitate in concluding that our age has been profoundly marked by the anxieties of the adjective “global.”Footnote ³ In law, history, ethnography, and other diverse fields of knowledge and practice, much ink has been spilled on what exactly does it mean to have a global perspective.Footnote ⁴ For better or worse, the relentless onslaught of what is understood as “globalization” rang the death knell of methodological nationalism across the social sciences: The nation-state has slowly, but surely, lost its privileged place as primal unit of the international system.Footnote ⁵

In this vein, the (international) legal field has witnessed the emergence of an ever-growing body of literature that questions the traditional assumptions regarding the (state-centric) sources and processes that govern lawmaking in the international sphere. Thus, it appears that a classical approach concerned mainly with state consent can no longer explain – if it ever did – the complex regulatory dynamics of informality, normative pluralism, and fragmentation that occur in contemporary global governance.Footnote ⁶ Transnational law, a term coined by Jessup in the past century, seems to be more analytically precise than international law to categorize the way regulation at the world scale occurs nowadays.Footnote ⁷ In this spirit, international lawyers and their fellow interdisciplinary travelers have opened the “black box” of the state – daring to “disaggregate” its inner contents and de-reify its “univocity.”Footnote ⁸ This, in turn has diminished its relative importance vis-à-vis other actors in the international sphere, such as international organizations and even private actors.

Implicit in this narrative, however, lies an ambiguous assumption about the role of time in the transformations that occur in (international) law and society. This assumption revolves a seemingly banal question: what is globalization and when did it exactly occur? Was it in the nineties, as most early theorists of globalization tend to argue? Or, as historians suggested, was there a deeper longue durée in the genealogy of the processes of world-making?Footnote ⁹ But even if this was the case, when did this earlier and broader globalization occur?Footnote ¹⁰ If not the nineties, were then the seventies the pivotal decade where the “shock of the global” was first felt?Footnote ¹¹ But what to make then of the pioneer global connections of the nineteenth century and its so-called first globalization?Footnote ¹² And what shall we do if, as postcolonial scholars have argued, these different interpretations about the origins of globalizations have been dazzled by the spell of Eurocentrism, and instead one must go back to the Early Modern or even the Medieval periods to think about non-Western global connections?Footnote ¹³ Perhaps, as my decolonial Latin American colleagues have suggested, one could trace the start of globalization all the way back to the Caribbean encounters that happened in 1492.Footnote ¹⁴

In this chapter, I do not aim to provide a definitive and comprehensive answer of how international legal scholars should engage with the “origins” of globalization or of “transnational law.”Footnote ¹⁵ Indeed, as Bloch reminds us, often the search for origins can mislead historians and laypeople alike into confusing causes and effects.Footnote ¹⁶ Instead, my much more modest contribution is to highlight that, for better or worse, international lawyers have overwhelmingly come to adopt one (out of many) interpretations about the beginnings of globalization: the so-called neoliberal late eighties.Footnote ¹⁷ While it is undeniable that the end of the cold war has brought unprecedented qualitative and quantitative changes in the way global integration occurs, it might also be a disservice to focus too much on the novelty of it all.Footnote ¹⁸ Or, to paraphrase Bloch again, one must not exaggerate the advantages of the present.Footnote ¹⁹ In fact, for a long time the state has often relied –willingly or not – on hybrid and private authorities to “govern in different sites, in relation to different objectives.”Footnote ²⁰ Historians, to paraphrase Tuori, have long shown that the only accurate use of the adjective “Westphalian” is related to dogs, not states or world-systems.Footnote ²¹

For this reason, in this chapter I invite the discipline to also interrogate the plethora of instances of private regulation and non-state lawmaking that predated the arrival of neoliberal globalization at the end of the twentieth century. To do so, I reconstruct the process through which private and public actors from the North Atlantic competed within (and beyond) the International Organization for Standardization (ISO) to set the global standards for containerized maritime shipping in the mid-twentieth century. I argue that in this “Keynesian” epoch, the lines between the private and the public were as blurry as they seem in our contemporary regulatory dilemmas. To be sure, I do not claim there was anything distinctively “Kenyesian” about shipping containers. My use of the adjective is meant to describe how they emerged in a period that the Western legal imagination has often associated with the dominance of a broad Keynesian compromise in macroeconomic management during the so-called Les Trentes Glorieuses (1945–1975), which was later upended by the general crisis of the seventies and the rise of “neoliberalism.”Footnote ²² This framing, I suggest, casts a shade of doubt on the narratives that center the novelty of private lawmaking. It highlights, instead, that we have much to learn from the long histories of “pre-neoliberal” non-state transnational regulation – of which maritime shipping is but merely one example. After the introduction already presented to the reader, I turn to the relative hegemony of the ‘globalization as a product of the nineties’ thesis in contemporary studies of transnational law-making and private governance (Section 12.2). Then, I turn to the concrete case of shipping containers as an example of “pre-neoliberal” transnational standardization (Section 12.3). Finally, I close with some concluding remarks on the importance of material “nuts and bolts” standards in global governance, at a time in which most attention seems to turn to the allure of immaterial, digital, or service-based standards (Section 12.4).

12.2 Visions of Globalization in the Scholarship on Private Lawmaking

Despite the “almost infinite variety” of transnational law and its corresponding analyses,Footnote ²³ there is a common trope in most of the recent scholarly interventions: a repetition of key words that denote the emergence of something new or the transformation of a previous state of affairs. As Steinitz puts it, regardless of the differences between different theories or approaches, one can detect an underlying sense of “increased urgency” in academic narratives.Footnote ²⁴ Transnational legal norms or actors “have grown in prominence,”Footnote ²⁵ are “increasingly frequent,”Footnote ²⁶ or stem from an “evolving complex society.”Footnote ²⁷ Instances of private lawmaking emerge out of the “progressive” interlinking of commerce or on the heels of certain rising technologies of communication or transport.Footnote ²⁸ For instance, Berman links both the rise of human rights norms (which he pinpoints to a post–world war II constellation) and the end of the cold war in an overarching narrative arc of the erosion of traditional law throughout the twentieth century.Footnote ²⁹ Graz, in turn, suggest the late eighties were the moment in which governance finally escaped from the narrow corridors of corporate management to become a global trend – a view that is shared by Delimatsis’ helpful introduction to this edited volume (“The Resilience of Private Authority in Times of Crisis,” Chapter 1).Footnote ³⁰ To cite one last example, Zumbansen notes that “while the globalization of human and institutional, material and immaterial affairs is widely accepted to have prompted, inter alia, significant challenges for inherited conceptual frameworks of societal ordering, the contours of what will replace them remain nebulous at best.”Footnote ³¹

But the rather ambiguous notion of globalization itself is hardly problematized in a historical fashion.Footnote ³² While interventions recognize that the phenomena of transnational and private governance is not entirely new, scholars tend to suggest we are standing on the verge of a threshold.Footnote ³³ Perhaps the most explicit elaboration of this radical transformation has been offered by Pauwelyn, Wessel, and Wouters, in their oft-cited conclusion that the post–cold war formal lawmaking enthusiasm of the nineties has bled into a more complicated landscape of informal regulation in our post-national age.Footnote ³⁴ This framing dovetails neatly with the contested history of the body of knowledge and practices that we often understand under the label of “neoliberalism.”Footnote ³⁵ While Slobodian and other global historians have shown the long roots of this school of thought in the early twentieth century, few would deny that its heyday would come in the late eighties and in specially in the aftermath of the cold war.Footnote ³⁶ Indeed, wouldn’t it make sense to date the rise of private rule-making precisely at the crossroads of this paradigm shift in the ways states and markets (and their relations) were understood in Western political thought?Footnote ³⁷

In this chapter, I do not want to create a straw person argument. It is undeniable that there is much truth to this framing. At the same time, following Winner and other proponents of the history of science and its cousin science and technology studies (STS), I want to take a step back before assuming the novelty of our neoliberal world.Footnote ³⁸ Instead of seeing technology as a game changer per se, Winner would push us to see how seemingly unprecedented forms material and ideological techniques draw from the legacy of previous institutional arrangements.Footnote ³⁹ While it is tempting to feel that our age has long surpassed the dilemmas of the previous century, a closer look into the historical record shows that many of the techniques of governance that we now associate with the emergence of private authority in the last decades have indeed long roots in the previous forms of regulatory imaginaries. Logistics, as we will see with more detail, was long a science closely related to military and public power before it became the realm of transnational private lawmaking.Footnote ⁴⁰ Technical standards created by private transnational bodies, despite their recent salience, were an integral part of the nineteenth-century project of “governing the world.”Footnote ⁴¹ As Tzouvala (drawing from the work of the historian Pedersen) recently noted, international legal scholarship on the use of standards, indicators, and “international best practices” can learn much from the seemingly unrelated context of the interwar colonial mandates system of the League of Nations.Footnote ⁴² While the power of multinational corporations and their supply chains might seem unprecedented, our colleagues working on imperial history would be quick to point out that “company-states” have been a fundamental force in the making of the modern world.Footnote ⁴³ While Delmitatsis convincingly argues that enormous transformations have occurred in the domain of privately led normative constellations in the last decades, in this chapter, I take his caveat that one must not forget that not all of this means that non-state regulatory orders are –themselves – a “recent phenomena.”

Indeed, as Zumbansen himself noted,

For these reasons, my aim in this chapter is to push transnational legal scholars to look for traces of our contemporary fascinations in previous times and places, especially those in which the silhouette of territorial state is less visible: cases of colonial administration and the high seas.Footnote ⁴⁵ I suggest that we might be able to understand better the resilience of private authority and lawmaking if we place their normative activity in the a broader chronological and spatial framework of analysis.Footnote ⁴⁶ In what follows, I provide a modest example of the role of private and non-public actors in the creation of maritime shipping standards in the mid-twentieth century, long before the advent of neoliberalism (broadly understood). I suggest this is only but an initial sketch of a history that remains to be written about the domestication of land and sea by private (or privatized) visions of world ordering in the second half of the twentieth century.Footnote ⁴⁷ To do so, I draw from the rich literature on containerization that has emerged in neighboring disciplines to augment our understandings of transnational regulation.Footnote ⁴⁸

12.3 Keynesian Standardization? Container Standardization before the Heyday of Neoliberalism

To begin, a word or two on the world of pre-containerized shipping is in order, so the reader can better grasp the sociotechnical transition that occurred in just a couple of decades. Indeed, if one looks today at what George has called our “mechanized, inhuman docks,”Footnote ⁴⁹ it is difficult to imagine these places as bustling entrepôts of human interaction. For instance, as its Port Authority itself recognizes and celebrates, Hamburg has been “transformed dramatically” since the first container ship arrived on their docks on May 31, 1968.Footnote ⁵⁰ Before that, in crowded and dense spaces, the movement of cargo and the conditions of labor were negotiated at every twist and turn. For this reason, Sekula argues that the European ports of the interwar era should be remembered as unstable melting pots of “overlapping cosmopolitanisms, both bourgeois and proletarian.”Footnote ⁵¹ Appalling work conditions converted these docks into spaces of contention, in which disputes between labor and capital slowed down the operations of an already lethargic industry. Tight relationships between kin and a particular understanding of the nature of the dangers of this industry gave rise to a distinct “maritime masculinity” working class culture.Footnote ⁵²

For our present discussion, what matters is that all goods were transported as break-bulk cargo, which can be “characterized by its multiplicity and diversity [as] cargo arrive[d] in any number of shapes, sizes, and configurations.”Footnote ⁵³ This, of course, required “swarms of workers [that] clambered up gangplanks with loads on their backs or toiled deep in the holds of ships, stowing boxes and barrels in every available corner.”Footnote ⁵⁴ For this reason, maritime shipping demanded a copious amount of workers, both when it comes to sailors and stevedores (also called dockers in the United Kingdom, wharfies in Australia, or longshoremen in the United States). What is more, the packing, loading, and delivery of cargo took quite some time, which entailed that vessels could spend more time at port than at the high sea. This “colorful chaos of the old time pier,” in which workers, cargo, and crewmates of all places swelled in spatially dense locales seems almost foreign in comparison with today’s automatized ports.Footnote ⁵⁵ The rise of containerized maritime trade – a revolution that occurred across several decades and regions of the globe – can only be understood in the backdrop of the crisis and collapse of this previous regulatory imagination of world ports.

In sum, this fragmented system of break-bulk cargo did not allow for standardized practices, which in turn implied that cargo loads, working conditions, and ship sizes were negotiated at every loading, departure, and arrival. In fact, laborers did not even have a fixed or guaranteed schedule of work. Across the North Atlantic, the turns of employment were adjudicated each dawn following a rather irregular practice called the “pick-up,” “shape-up,” or “scramble.” Thus, even in one country, ports worked under very different conditions. One example of this is the variety of jurisdictional approaches, regulations, and strategies pursued by organized labor in one coast of the United States compared to the other.Footnote ⁵⁶

Another important issue was the tight connection between the (private) merchant navy and the (public) military-industrial complex. One must note that the concept of the “merchant navy” itself was only coined amidst the interwar fears of the return of a total war.Footnote ⁵⁷ With the rise of oil and diesel power, naval strategy demanded “maritime time, previously unpredictable, [to be submitted] to a new metronomic industrial regularity.”Footnote ⁵⁸ With the cold war looming over the horizon, North Atlantic elites realized that it was important to maintain a robust and reliable national private fleet that could be temporarily enlisted in the support of the war effort if needed.Footnote ⁵⁹ In other words, maritime policy was strongly connected with the fears and anxieties of national security concerns, and private actors were expected to act taking into account this national interest rather than the pure maximization of profit. Of course, there were exceptions to this trend, especially in the industry of oil tanking, where some rogue companies were avoiding these national regulations by listing their ships in the registry of another (laxer) state: a practice we now call “flags of convenience.” Sekula and Khalili have shown that these unorthodox practices later became a template for containerships in the late eighties.Footnote ⁶⁰ However, in the fifties and sixties, public and private actors in the shipping field still saw their métier as an extension of national maritime war policy.

In exchange, North Atlantic states provided generous subsidies and enacted protectionist regulations to strengthen their domestic seafaring industries. In the United States, for example, the 1916 Shipping Act, the 1920 Jones Act, and the Marine Act of 1936 “combined a New Deal interest in invigorating the nation’s dormant industrial base with a concern for future [military] international engagements.”Footnote ⁶¹ While they required companies to use domestic captains, crews, and ships for all domestic trade, they rewarded their loyalty with discounted prices on wartime ships and public assistance for the creation of new models. Even if these measures did not apply for international trade, a similar mindset prevailed on the high seas. As Broeze reminds us, a transnational network of commodity and bulk conference maintained the stability of prices in transatlantic shipping.Footnote ⁶² While Hoovestal assumes that containerization has, from its very beginnings, implied a (neo)liberal challenge to state sovereignty and its regulatory overreach.Footnote ⁶³ I argue that this reading fails to capture the enormous dependence of early (and even contemporary) containerized trade on state subsidies, international trusts, and other non-market mechanisms.

It was in this context of a union between maritime trade and war policy and the irregularity of break-bulk cargo that the owner of a US trucking company first thought of linking sea and land in a single transport chain. While some companies had tried loading automobiles and trailers into ships (a technique that is now called roll-on & roll-off: ro/ro), the owner of this North Carolina trucking company, the magnate Malcolm McLean, wanted to maximize the amount of cargo per ship. He suggested removing the chassis of the truck and leaving only a box filled to the brim with goods on the ship’s deck. After acquiring a peripheral steamship firm (renamed Sea-Land), McLean had to remove himself from the chair of his previous hauling company, to avoid contravening the regulations of the US Interstate Chamber of Commerce.Footnote ⁶⁴ In what has been called an “unprecedented piece of financial and legal engineering,” he pursued a leveraged buyout with a loan delivered by the National City Bank (now Citibank) to buy a bigger shipping firm: Waterman.Footnote ⁶⁵ Then, he bought (through a subsidized government program) a couple of old World War II–era oil tankers, which he adapted to make the pioneer vessels of containerization. Instead of seeing McLean as a lone private entrepreneur, I argue that one must note his dependence on public subsidies and other elements of the regulatory landscape of the mid-fifties.

In his quest, McLean enlisted the help of an engineer named Keith Tantlinger from Brown industries (based in Spokane, Washington) to design the first modern shipping containers. These novel boxes could be stacked up to two when placed on a ship, travel by train, or fit in a chassis pulled by a truck, Tantlinger suggested a length of thirty-three feet just because the available space aboard the refitted oil tankers was divisible by thirty-three, making these new boxes at least seven times bigger than all previous experiments. The first container-carrying ship left port in New York in 1956, signaling the start of containerized trade on the US east coast. On the west coast, a rival company called Matson sailed its first hybrid ship in 1958, which was quickly followed by its first fully containerized ship in 1960. For Broeze, this was the threshold of a new decade in which “the fundamentals of the new system were determined, on the basis of which containerization during the 1970s could spread all over major trade routes of the world.”Footnote ⁶⁶

Before this global expansion could take flight, the “early days of containerization … were plagued by the kind of format war familiar to historians of science: differences in widths, interlocking methods, and internal as well as external specifications generated turbulence.”Footnote ⁶⁷ In 1957, McLean had used a slightly bigger model of thirty-five-foot long containers, as this was the maximum length of trucks allowed by the state of Pennsylvania. Over on the west coast, Matson instead opted to carry out an “extensive engineering analysis” that revealed that twenty-four feet was the best length for the narrow Hawaiian roadways, which their business model wanted to conquer. Moreover, after the Korean War, the US Army had been using ten-foot “Conex” boxes. With the purpose of calming the standards wars raging between overlapping regulatory authorities and competing companies, the US Maritime Administration (MarAD) created a panel in 1958 tasked with the creation of universal sizes for containers. The same year, the American Standards Association (ASA) (renamed to the American National Standards Institute [ANSI] in 1969), a private nonprofit organization, also created a task force with the same aim. Then the National Defense Transportation Association also demanded a seat at the table. The stage was set for a competition between different visions of (self-)regulation by private and public actors. I suggest we see this confrontation as an early case of what Delimatsis identifies as instances of “voluntary economic activism.” Each transport operator sought to cloak their private – and even often patented – standards with a stamp of public approval, thus setting the industry-wide norms of conduct. While the old system of maritime trade was not, yet, in crisis, private and public actors quickly understood that the potential of standardized containerized trade could create a “critical juncture” to reshape the rules of the game.Footnote ⁶⁸

In this context, MarAD created two expert commissions (on dimensions, construction, and fittings) tasked with endorsing “the principle of standardization of container sizes for the United States Merchant Marine.”Footnote ⁶⁹ This was not a minor issue, because only the ships that accommodated standardized containers could be allocated public “differential subsidie[s], mortgage insurance or other form of Government aid.”Footnote ⁷⁰ This can be seen as a pioneer case of “free riding of private ordering”: non-state actors benefit from state legitimacy and even public subsidies without assuming the political costs of their outward role as standard-makers. These norms, as Delimatsis argues, function “in the shadow of the state” but still have a very heavy weight in the sliding scale of bindingness due to their function as gatekeepers to the market or to public aid.Footnote ⁷¹

Due to the importance of these standards, it quickly became clear that creating a single universal size would not be easy, these committees instead tried to make a “modular family” of containers. In their proceedings, they argued that they “would have to be guided mainly by domestic requirements with the hope that foreign practice would gradually conform to our standards.”Footnote ⁷² Hence, they settled on a width of eight feet, as this was the average dimension in US regulations (whereas some European railroads and highways had a limitation of seven feet). The question of length, however, proved more controversial: as we have seen, the shipping companies of the east coast tended to prefer longer containers (thirty-five feet) whereas west coast firms would have preferred a length of twenty-four feet. As a compromise, MarAD suggested a modular family based on multiples of eight: eight feet, sixteen feet, twenty-four feet, thirty-two feet, and forty feet.Footnote ⁷³

On the other hand, also in 1958, ASA had created a Materials Handling Sectional Committee (MH-5). This committee was composed of several subcommittees, one of them tasked with “van” containers.Footnote ⁷⁴ This body suggested instead a modular family of twelve feet, seventeen feet, twenty feet, twenty-four feet, thirty-five feet, and forty feet. Against them both, the National Defense Transportation Association (which represented firms handling military cargo, without participation from “civil” shipping or trucking companies) instead pushed for the adoption of a system comprising lengths of multiples of ten feet (to facilitate integration with the Army’s Conex format).Footnote ⁷⁵ In the midst of this dispute, the chairperson of ASA’s MH-5 surprisingly agreed with the military cargo companies’ standards and argued for the elimination of the twenty-four foot and thirty-five foot sizes and to instead adopt a modular family of ten feet, twenty feet, thirty feet, and forty feet.Footnote ⁷⁶ In “three critical meetings” that occurred in late 1959, this proposal was eventually ratified.Footnote ⁷⁷ This left the two early proponents, Sea-Land and Matson, with abnormal sizes compared to the agreed upon standards. While they would try to overturn these sizes throughout the sixties (eventually raising their complaints against the ASA all the way up to the US Congress), their ultimate defeat meant that standardization helped latecomers “gain at the expense of the pioneers.”Footnote ⁷⁸

This struggle in the United States ultimately proved to be only a dress rehearsal for a later global dispute that began when, in 1961, the ISO created its own committee for the standardization of containers (chaired by the ASA).Footnote ⁷⁹ As Vince Gray (who worked in the US Merchant Marine Academy, the ASA, the US Navy, the US delegation to ISO, and ISO itself) reminds us, when ASA brought their case before the ISO for the creation of an ISO committee on container standards, they did so because they wanted to globalize their national formula.Footnote ⁸⁰ The assigned committee, Technical Committee 104, would have its inaugural meeting in New York (1961), followed by other meetings in France (1964), Germany (1964), The Netherlands (1965), London (1967), and the USSR (1967), and it would adopt its first global standard, ISO 668, in 1968. In 2020, this standard has just been updated for the seventh time, and it has now been joined by a wide variety of ISO standards on shipping containers.Footnote ⁸¹ It would be too simplistic, however, to tell this story as if it were simply a US imposition on the rest of the world.Footnote ⁸² Klose aptly noted that Kurt Eckelmann (the Hamburg-based shipping magnate who chaired the ISO’s subcommittee on container sizes) pushed for the ASA standards due to the profound divisions among the European delegations (and the absence of the global south at the negotiation table).Footnote ⁸³

For this reason, it would be more precise to narrate the ISO negotiation process as a long dispute not only between national preferences but also among the different transportation philosophies of shipping, trucking, and train executives from all around the North Atlantic region. Length and sizes were not the only thorny questions at hand. While Sea-Land had initially threatened to sue the firms that followed their interlocking designs, McLean and Tantlinger eventually permitted royalty-free use of their corner castings and twist locks.Footnote ⁸⁴ At the end of the process, the 1967 draft forwarded by the ISO to its member bodies for review included three accepted series of sizes, of which only Series 1 became a universal industry standard.Footnote ⁸⁵ According to this model, boxes should comply with a uniform height and width of eight feet (or 2,435 millimeters) and could have lengths of forty feet (12.192 meters), thirty feet (9.144 meters), twenty feet (6.096 meters), or ten feet (3.048 m).Footnote ⁸⁶ These new sizes eventually became the “universal yardstick of the brave new world of containerisation.”Footnote ⁸⁷ Ever since, the acronym TEU (twenty-foot equivalent unit) became a cornerstone of the new universal language of the maritime trade. The later global (and perhaps neoliberal) development of the containerization only became possible due to these seemingly banal normalized series of material practices and discursive knowledge that entrench a particular socio-technical imaginary of world commercial integration.Footnote ⁸⁸

12.4 Concluding Remarks: Material Standards in Global Governance

In their pathbreaking history of global standards, Yates and Murphy argue that we could periodize the creation of transnational engineering norms in at least three waves.Footnote ⁸⁹ While they recognize the undeniable importance of the “third wave” that emerged in the late eighties,Footnote ⁹⁰ they insist on the pioneer efforts of the late nineteenth century and the historical relevance of the processes that led to the creation of standards for a global market in the sixties and seventies.Footnote ⁹¹ In my view, international legal scholars have tended to focus mostly on the (undeniably important) actors and events of this third wave, paying little heed to the longer history of technical standardization.Footnote ⁹² In a way, this is entirely understandable – the third wave standards seem to deal with cutting-edge issues of social regulation that intersect with certain traditional legal concerns, like corporate social responsibility or environmental protection.Footnote ⁹³ Most importantly, the rise of the service economy has led scholars to focus their attention on the immaterial and digital “containers” that underpin global commerce today, instead of the sturdy old boxes that remind us more of the technological feats of yesteryear.Footnote ⁹⁴

Instead, I conclude this chapter with a plea for the interrogation of “old twentieth century” technological devices, especially their material implications. As I have explored more elsewhere, in the last decades across the social sciences and the humanities there have been important calls to reengage with the materiality of the social world, in the wake of the critique of the fascination of our intellectual age with discourse.Footnote ⁹⁵ Slowly but surely, even our discipline has come up to speed with this “new materialist” perspective that comes from feminist social theory and the history of science, leading to new studies of the material practices, objects, and infrastructures of global governance.Footnote ⁹⁶ But, as I have argued in the past, one of the limitations of these first waves of new materialist interventions has been their fidelity to “traditional” state and consent-centered understandings of regulation. As Pottage has argued in the case of new materialists approaches to domestic law, often our work has been “too indulgent of the lawyer’s sense of the law.”Footnote ⁹⁷ Perhaps we have been caught under Article 38’s specter of sources,Footnote ⁹⁸ in our studies of legal documents, rituals, and courts.

For this reason, the materiality of standards (and the standardization of materiality) remains a relatively unexplored and promising area for further cross-fertilization between new materialist approaches and a transnational law perspective. This chapter, with its incipient exploration of the little-known history of material standards in the history of maritime commerce is only but a snapshot of the many instances the relation between (private) expertise and physical and technical infrastructures colluded to create socio-technical imaginaries of world ordering. If we are, indeed, living in an era of “Private Ordering 2.0,” perhaps it might be helpful to unearth the blueprints of previous hybrid regulatory constellations that preceded the age of the “territorial” and “public” nation-state. In hindsight, such an age might appear as a rather short interlude in a longer span of time marked by “private” and “extraterritorial” forms of global ordering.Footnote ⁹⁹