Forum shopping and regime shifting

Within the literature on regime complexes, the notions ‘forum shopping’, ‘forum shifting’ and ‘regime shifting’ appear from time to time.

These dynamics involve attempts by states or non-state actors (such as NGOs or business lobbies) to shift discussions and negotiations from one international organization or forum to another in order to secure outcomes that better align with their interests. In the alternative venue, they may encounter a more favorable membership composition, more suitable decision-making procedures, or an institutional mandate that better supports their goals.

Forum shopping

According to De Bièvre and Van Ommeren “[f]orum shopping is a strategy where actors seek out the international venues that are most favourable to their interests regarding specific […] issues” (2021). Actors who engage in forum shopping, choose between certain existing institutions (or forums, or venues) to address a specific issue. This can be about a legal complaint, for which one court or dispute settlement mechanism is preferred over another (Busch, 2007). Another possibility is lobbying for a policy proposal in a certain institution, because one believes that the institution’s mandate or membership composition is more conducive for success.

Regime shifting

Regime shifting is more fundamental, as it denotes a strategy to move (important aspects of) the governance of an international policy domain from one institution to another. When it fully succeeds, the policy domain has been given a new institutional home.

Helfer defines regime shifting as “an attempt to alter the status quo ante by moving treaty negotiations, lawmaking initiatives, or standard setting activities from one international venue to another” (Helfer, 2004). According to Morse and Keohane “regime shifting […] occurs when challengers to a set of rules and practices shift to an alternative multilateral forum with a more favorable mandate and decision rules, and then use this new forum to challenge standards in the original institution or reduce the authority of that institution” (Morse & Keohane, 2014).

Helfer develops the example of how US and Western European governments from the late 1980s on moved intellectual property negotiations from the World Intellectual Property Organization (WIPO), a UN agency, to the General Agreement of Tariffs and Trade (GATT) and subsequently the WTO Trade-Related Intellectual Property Rights Agreement (TRIPS). The Western countries were seeking more stringent patent rules for their companies, whereas the less powerful developing countries wanted more flexibility. By inserting intellectual property in the GATT/TRIPS negotiations, the West could more easily link this issue to the rest of the trade negotiations. Wielding their market power, the US and EU could force the developing countries into more concessions on intellectual property protection in exchange for better market access (Helfer, 2004). Regime shifting is a serious step, and implies a long-term strategy.

Some authors use the term ‘forum shifting’ as a synonym of ‘regime shifting.’ Thus, Wenham, building on Helfer (2004), defines forum shifting as “the strategic process through which actors move the location of negotiations and discussions to forums or institutions which better meet their needs. The purpose of doing so can be multiple, such as: to seek more favourable outcomes; to relieve growing political pressure within other forums; to create competing norms to challenge the dominant discussions elsewhere; or to promote integration across different regimes” (Wenham, 2023).

Competitive regime creation

Normally, regime shifting refers to shifting decision-making towards another existing institution. A variant, in which states create a new institution, is known as ‘competitive regime creation.’ Both are variants of ‘contested multilateralism’ (Morse & Keohane, 2014; Randall Henning & Pratt, 2023). A prominent example is the creation of the International Renewable Energy Agency (IRENA) in 2009, driven by concerns that the leading energy institution, the International Energy Agency (IEA), would not promote renewable energy with sufficient force or urgency (Van de Graaf, 2013).