Abstracts. Call for paper on transparent rulemaking and enforcement

Transparency in International Rule Making – International Transparency at Work

Itai Apter (University of Haifa, Faculty of Law, Israel, Ph.D. candidate) 

Transparency in domestic rule making is increasingly becoming prominent in national legal systems, as parliamentary discussions become public, legislative drafts distributed for comments, and civil society gains wider access to legislative deliberations. This transparency phenomenon, and its links to legitimacy and enforcement, is an area with much potential for study and research.

Equally interesting is the emergence of transparency principles in international rule making, as slowly, but surely, domestic transparency principles are taking hold in international rule making forums. This interesting development, which has drawn little academic attention so far (even in recent studies of transparency in international law), is the focus of the paper.

Traditional practice of international rule making was, until recently, in the sole realm of states, participating closed United Nations and similar forums, and taking part in drafting international instruments. Today, the UN and other international organizations are faced with increasing demands for making legislative deliberations public and to allow civil society and other non-state actors’ active participation.

The paper begins by exploring the reasoning behind domestic application of transparency in the rule making process, attempting to distill those principles which have relevancy to the international playing field and global governance. Subsequently, the discussion proceeds to explore current transparency components in international rule making, aiming to understand their origin, and whether they are based on regulatory arrangements or on consistent practice. As states are still considered the main actors in international rule making, the third section of the paper addresses actual and potential objections to transparency, using examples, inter alia, from inter-governmental forums related to international criminal law, anti-corruption and international trade law.

Following the analysis of the present state of affairs, the debate moves forward, in the fourth section, to suggesting models for enhanced transparency in international rule making. The proposed modalities incorporate the elements debated previously, seeking a balanced approach with an eye to using transparency to encounter challenges of enforcement of international rules, as global governance renders such rules increasingly relevant in everyday life. Finally, utilizing the proposals, the paper considers the potential of promoting domestic transparency in rule making by using international tools of a formal nature (treaties, rules, model laws, and guidelines) and non-formal nature, such as developing trust by state actors in the benefits of transparent processes and creating a perception that transparency has a crucial role to play in rule making to facilitate both awareness and enforcement.

Transparency in international law is a somewhat recent endeavor. Sometimes there is great controversy between state actors on the role it should play in global affairs, especially in the more sensitive areas like dispute resolution and security. This could create a backlash reaction to incorporating transparency even when it is highly likely to contribute to the process, as is the case for international rule making. The hope is that this paper becomes one of many attempts to prove otherwise, as we strive to make international transparency work to the benefit of all.

Responsive Regulatory Enforcement: Case for Electricity and Telecom sectors in India

Shoban Badgujar (Tata Institute of Social Sciences, Mumbai, India, MSc. in Regulatory Governance)

The spectrum allocation scam; irregularities in coal block allocation; forward markets scam; lack of proper licensing and verification procedures of private taxi operators thereby compromising safety of commuters; blatant disregard for environmental laws; and many more such controversies have rocked India in recent months. Huge costs have been paid by the state and citizens for such regulatory enforcement lapses in terms of loss of revenue due to improper allocation of natural resources and negative private investment sentiment. The wheels of the economy are turning sluggishly.  As per Doing Business Report 2015 of the World Bank, India has slipped down from 140th to 142nd rank on the Ease of Doing Business Index.

As these matters are getting scrutinized under the investigative lens of probe agencies and getting adjudicated by the judicial machinery, it is becoming evident that the perpetrators of such wide range of scams exploited loop holes in the design, implementation and enforcement of rules and regulations governing various sectors. In most cases, it is observed that regulations in India are lagging behind the fast evolving business practices. One of the reasons for this lag is the weakness in the existing monitoring and enforcement mechanisms which have failed to take proper feedback about the effectiveness of existing enforcement methods and thereby consistently missing out on opportunities to make timely amends.

Questions are being asked about the capacity of regulatory agencies to enforce regulations effectively. What could have been done differently? I argue that India needs to adopt a responsive regulatory enforcement model which is robust and at the same time amenable to quick modifications as per demands of circumstances. It would enable the regulators to adopt new enforcement instruments making a departure from the traditional ones like fines and penalties. Encouraging voluntary compliance should be an important strategy under the new framework.

The paper would be based on cross-sectoral assessment of regulatory enforcement practices prevalent in electricity and telecom sectors in India.  These sectors are characterized by public utility nature; fast developing technology; and increasing level of competition. Hence responsive regulatory enforcement is required in order to prevent mismatch between control logic of enforcement methods and the evolving business practices. The broad sections of the paper would be: overview of the existing enforcement methods and instruments; assessing the case for voluntary compliance as part of responsive regulation and its impact on cost of enforcement; impact of responsive regulatory enforcement on quality of service. The paper would make a contribution to the conceptual understanding of responsive regulation enforcement in the context of India.

AIR for water and sanitation services

Bruno Eustáquio Ferreira Castro de Carvalho (Universidade de Brasília and Universidade de Lisboa), Rui Domingos Ribeiro da Cunha Marques (PhD – IST, Professor Catedrático da Universidade de Lisboa, Instituto Superior Técnico, Portugal, Lisboa) e Oscar Moraes de Cordeiro Netto (PhD – ENPC, Professor da Universidade de Brasília, Faculdade de Tecnologia, Brasil, Brasília)

The changes occurring in recent years, especially after the collapse of financial markets in 2007 point to a reduction of direct intervention by the State with the assumption of the State’s regulatory role over a producer of paper goods and services. The said, it becomes necessary to present justifications for regulation, as well as for theories that support it, which places the regulation in the center of many current issues related to public policies, putting in debate: the issue of regulation, its form and the impacts of this type of intervention. That said an increasingly better understanding of the peculiarities of regulation is needed, particularly in those sectors which offer are of Public Utility Services (Serviços de Utilidade Pública, SUPs in Portuguese), as in the case of Sanitation, and given their characteristics of natural monopoly, separate activities, form of restructuring, asset specificity and irrecoverable costs can affect the relationship between the provision and the users of such services and undertake any plans of universalization or increase of levels of satisfaction in the consumer perspective. Therefore, to account for this challenge, it is appropriate to innovate in regulation from its governance, effects and borders, in which a wider form of Regulatory Policy Evaluation is discussed and, more specifically, the Impact Analysis regulatory (AIR in Portuguese) within a proposed “better regulation” from the problem analysis and discussion of alternatives. For this purpose, we understand AIR, among the various concepts, as a method to support ex-ante decision to allow the definition of the problem, the identification and analysis of the likely benefits, costs (financial or otherwise) and effects of regulatory alternatives based on objective evidence to be achieved in a given sector. Moreover, it is suggested that for the Sanitation sector the AIR considers the following steps: (i) definition of the problem, (ii) survey of the objectives, (iii) identification of the options, (iv) impact analysis, (v) public consultation, (vi) conclusions and results, (vii) implementation, monitoring and enforcement. Although it is not shown ongoing systematic practices of use of the AIR in the Sanitation sector, it is observed in recent productions of the energy sector, food nutrition, health, civil aviation, applied structuring attempts of the AIR with the adoption of analytical methods in decision support for, for example, the adoption of monocriteria analysis (cost / benefit), multicriteria (Fuzzy and Macbeth) and query methods like Delphi at the stage of “impact assessment”, as well as conceptual Maps to structure the analysis and Monte Carlo for the review of scenarios.

In any case, this proposed article focuses on the attempt to structure a methodological support to enable support the decision making process in choosing, ex ante, regulatory acts of the Sanitation Services Delivery in the light of the industry’s current practices and as in other sectors, and the knowledge produced in the academy, although still under development, especially in Brazil. Moreover, it is expected from case study, apply the methodological support developed in Brazil, especially in the Integrated Development Regions (rides), where the induction of planning is federal, as well as in European countries, as in the case of Portugal, Italy, France, Spain and England, still to be defined.

Private Regulation and Public Enforcement in Post-Crisis European Financial Services Law

Olha Cherednychenko (Associate Professor at the University of Groningen, The Netherlands)

Originally, the European financial industry played a major role in the regulation of financial services across the EU. The professional associations of banks and other financial service providers set standards of behaviour to be observed by their members when dealing with (potential) clients. The last three decades or more, however, have witnessed the declining role of private regulation and the rise of public regulation and enforcement in the area of financial services. This trend received a major boost in the aftermath of the global financial crisis. The crisis exposed the risks that private regulation can pose to the proper functioning of the financial markets. In response, both at EU and Member State level the regulatory grip on the financial services industry has tightened post-crisis. This is reflected in the introduction of new public regulatory measures in areas previously subject to private regulation, the move away from the largely principles-based public regulation (that have strong resonances with private regulatory techniques) towards more prescriptive and centralised public regulation, and a paradigm shift in financial consumer protection from ‘soft’ paternalism (concerned with the consumer’s ability to make well-informed decisions) towards ‘hard’ paternalism (associated with restrictions on potentially harmful consumer transactions, such as financial product bans).

These developments give rise to the question to what extent private regulation has a role to play in regulating financial services in the EU in the post-crisis regulatory environment dominated by public regulation and enforcement. In this paper, I will argue that private regulation has not been entirely displaced by the post-crisis public regulation and that, contrary to the traditional dichotomy between purely private regulation and command and control public regulation, various forms of complementarity between the two are emerging in a multi-level EU legal order. For this purpose, I will focus on the two forms of such complementarity that were envisaged by the post-crisis financial reforms in the EU or were at least not precluded thereby, i.e. co-regulation and meta-regulation. I will also discuss major challenges to the effectiveness of these two regulatory forms in delivering desired regulatory outcomes, posed, in particular, by the public enforcement of the privately produced rules. I will conclude with some final observations concerning the changing roles of public and private actors in the post-crisis financial services regulation in the EU.

Come applicare gli strumenti della better regulation a livello regionale?

Paola Coletti (Università degli Studi di Milano)

Gli strumenti di better regulation adottati a livello Europeo e nazionale come l’analisi di impatto della regolazione e la misurazione degli oneri amministrativi, non hanno sempre prodotto i risultati sperati a livello sub nazionale. Alcune delle principali difficoltà derivano dalla fase di implementazione della regolazione e dalla complessa varietà delle realtà sub nazionali. Le regioni, le province ed i comuni adottano e implementano la regolazione derivante dal livello nazionale ed europeo attraverso procedure definite sulla base di proprie interpretazioni della regolazione originaria e in contesti caratterizzati da diversi livelli di “maturità amministrativa”.

Sulla base dell’esperienza maturata in regione Lombardia durante gli anni 2010- 2012, verranno proposte delle riflessioni in tal senso, cercando di definire gli attori coinvolti nella politica, il significato del termine per i livelli di governo subnazionali ed il paradosso insito nella parola.
Il paper proporrà alcune considerazioni su come costruire una complessa politica con una strategia di lungo termine per affrontare il problema della semplificazione amministrativa e individuerà gli strumenti più adeguati da utilizzare.

Le conclusioni finali prenderanno in considerazione l’opportunità di indagare i problemi derivanti dalla fase di implementazione, elaborando una specifica politica per la semplificazione a livello sub nazionale.

Il reclamo delle A.I.

Miriam Giorgio (PHD, Università degli Studi di Messina)

L’obiettivo è esaminare l’istituto del reclamo quale strumento di controllo della corretta applicazione e della buona qualità delle regole.

Lo studio si svolgerà in due parti. La prima parte sarà finalizzata alla raccolta dei dati sui reclami presentati alle Autorità indipendenti (in particolare, AGCom e AEEG) e si concluderà con un rapporto e una valutazione preliminare da proiettare, articolandola, nel prosieguo dello studio.

La seconda parte porterà ad esaminare alcuni aspetti dei reclami con la finalità di misurare il grado di efficacia del reclamo quale strumento di fire allarm per migliorare la qualità della regolazione.

Si comincerà, quindi, dall’esaminare, attraverso i dati raccolti, i reclami proposti, con la finalità di fornire un rapporto sullo stato dell’arte, concentrando l’attenzione sulla ricerca dei casi in cui da uno o più reclami proposti sia discesa una riformulazione delle regole.

Nella seconda parte dello studio, si passerà ad esaminare l’oggetto del reclamo alle A.i. con riferimento agli obblighi imposti dai provvedimenti di regolazione per garantire lo standard minimum inderogabile nell’erogazione dei servizi. Ciò su cui si intende fare luce nel perseguire la finalità che fa da sfondo allo studio, è il possibile nesso tra un reclamo sulle modalità di erogazione dei servizi e taluni aspetti inerenti l’avvenuta regolazione, quali le disfunzioni negli effetti delle misure di regolazione; la non corretta applicazione (o applicabilità) delle misure di regolazione.

In definitiva, non è irrilevante la posizione giuridica del “reclamante” che potrebbe fornire l’impulso per l’esercizio della funzione di controllo sulla buona qualità delle regole. Sarebbero possibili allora due fattispecie delle quali una appare decisamente più frequente, ossia quella in cui il reclamante contesta un comportamento inadempiente degli obblighi sulla modalità di erogazione del servizio da parte degli operatori e che porta a contestare la mancata o cattiva applicazione di una regola (che discende da una vera e propria violazione): la stessa regola, invece, se correttamente applicata, risulterebbe “buona”. Nell’altra fattispecie ipotizzata, invece, il reclamante si duole di un comportamento dell’operatore che non viola alcuna regola, e anzi è conforme alla disciplina prevista, ma che, tuttavia, determina effetti pregiudizievoli: siamo di fronte ad una regola “non buona” che il reclamante contesta indirettamente.

L’obiettivo è quello di verificare se e in quale misura attraverso la contestazione di comportamenti tenuti dagli operatori di settore nell’erogazione dei servizi, emergano aspetti critici relativi al profilo applicativo delle regole che possano costituire un indice della necessità di intervenire per migliorare la qualità della regolazione.

Si intende verificare se sia sostenibile la conclusione per cui i reclami alle A.i. sono prevalentemente “quasi giurisdizionali”, nel senso che la loro funzione è quella di rimediare agli effetti provocati dalla non corretta applicazione (o dalla violazione) della disciplina che regola il servizio o gli obblighi degli operatori economici verso gli utenti.

Quali sono, di conseguenza, i rimedi post reclamo? Si vedrà che i rimedi seguono tre direttrici: a) esercizio potere sanzionatorio; b) possibilità di riesercitare (o esercitare ex novo) poteri di regolazione; c) risoluzione delle controversie tra privati (utenti e imprese). Quali sono tra questi i rimedi che consentono di inquadrare il reclamo come strumento di enforcement?

Transparency of lobbying and accountability of EU institutions: a cause-consequence relationship?

Gianluca Sgueo (Post doc “Democracy and Globalization”, Centre for Social Studies, University of Coimbra, Portugal; PHD in Administrative Law, University of Lecce, Italy; MA in European law European Academy of Public Law, Greece)

Transparency of EU lobbying has become an increasingly prominent topic over the last twenty years. In response to increased criticism regarding the transparency and accountability of the EU’s decision-making process, the EU Parliament set up its transparency register in 1995, followed by the Commission in 2008. In 2011 the two institutions merged their two instruments in a joint European Transparency Register (TR). In 2014 Commission President Jean-Claude Juncker put the issue of transparency of lobbying regulation on the political agenda, committing to introduce a proposal for a mandatory register by 2016. Such a register would replace the current voluntary lobby register, it would cover the Commission and the Parliament, and it would also include the Council (thus far remained only an observer to the system). Further, as of 1 December 2014 onwards, the Commission has undertaken to publish information regarding the meetings of the Commissioners, the members of their cabinets and Directors-General with lobbyists.

There is a widespread consensus among policy-makers – the EU being no exception – that transparency of lobbying and the accountability of decision-making are connected in a cause-consequence relationship. According to this interpretation, the more the activities of pressure groups are transparent, the more policy-making is perceived as accountable. However, no straightforward evidence exists to substantiate this claim, i.e. to show how decision-makers would concretely benefit from increased transparency of lobbying activities. Indeed, enhanced transparency increase the knowledge of pressure groups. Nevertheless, in legal systems where stricter regulations of lobbying are in place (e.g. the United States and Canada) decision-makers are not necessarily perceived as more accountable. In the United States, for instance, changes in the rules of transparency of lobbying have only produced a precipitous drop in the number of registered lobbyists (-25% between 2007 and 2013). It is estimated that more than 46% of lobbyists who were active in 2012 – but not in 2013 – continue to work for the same employers. This seems to suggest that many lobbyists have simply avoided the reporting limits while still contributing to lobbying efforts.

The proposed paper aims at speculating about the connection between transparency of lobbying and the accountability of policy-making in the European scenario. To pursue such endeavour, the paper will be divided in three parts. (1) Part I will briefly describe the past attempts made by the EU Commission and the Parliament to regulate lobbying activities. (2) Part II will move to the analysis of how transparency of lobbying may be enhanced by policy-makers. A comparison will be made between the voluntary and the mandatory systems of registration of lobbyists, and the consequence this choice may have for regulatory purposes. The TR, for instance, has grown at a rate of around 1,000 organisations a year, to reach over 7,000 organisations in 2014. However, the fact that it is not illegal to lobby the EU institutions without registering is an obstacle to having official estimate of the actual coverage of the TR. As a result, no informed regulation of lobbying has been possible. Part II will also describe how (and whether) civil society initiatives aimed at increasing public knowledge of pressure groups (e.g. Lobbyplag, Corporate Europe Observatory) are helping EU institutions in enhancing lobbying transparency. (3) Part III will focus on the relationship between transparency of lobbying and accountability. In the attempt to answer the question concerning the nature of the relationship between transparency of lobbying and accountability of decision-makers, Part III will discuss how the proposed regulation on lobbying transparency is going to effectively produce a more accountable EU institutional system.

Better Regulatory Enforcement: Emerging Practices in Food Safety

Paul Verbruggen & Tetty Havinga (Radboud University, Nijmegen, the Netherlands)

Governments and international organisations have grappled with the question of how to improve regulatory outcomes and ensure rule-compliance among regulated firms. While initiatives like ‘better’ or ‘smart’ regulation (European Commission 2005, 2010) are laudable, the quest for ‘optimal’ regulation seems endless. Recent studies show that the success (or failure) of regulation strongly depends on the (lack of) regulatory capacities of public or private actors (Cafaggi & Pistor 2014). While the lack of financial resources, expertise and jurisdiction bend the capacity of public regulators to intervene in areas where issues are fast-moving, technology-based and transnational in nature, private regulators are reported to fail due to their lack of legitimacy and acceptance, inability to impose sanctions that truly bite, and free-rider problems associated with their regulatory activities. A solution to compensate for this scarcity of regulatory capacities – and one that is proposed within the movement of Better Regulation – is to design regulatory arrangements in which public and private regulators coordinate and collaborate to achieve common regulatory objectives.

In this paper we examine the design of such co-regulatory arrangements in the domain of food safety. The case of food safety has proven exemplary in recent years of the situation in which government regulation is increasingly unable to address the systemic risks involved in current practices of food production and where self-regulation has proven too lenient towards industry to do away with fraud and deceit. A host of recent outbreaks of food-born deceases and the horse-meat scandal in Europe may illustrate this.

In response, and in the light of national Better Regulation reform programmes, public authorities in countries such as the Netherlands, the United Kingdom and Canada have recently started to develop forms of coordination and collaboration with private food safety control systems. In this paper we analyse how the Netherlands Food and Consumer Product Safety Authority assesses and monitors the functioning of private food safety control systems, so to enrol these private systems in its own enforcement and inspection protocols. The paper offers a deep and empirically rich examination of the safeguards that the public enforcement agency deploys while coordinating its own activities with private food safety controls, the advantages and risks involved in this better regulation strategy, and the extent to which this policy can be improved. From this we draw lessons for public agencies elsewhere willing to engage with private compliance mechanisms in the domain of food safety and beyond. The study is based on the analysis of policy documents, public and private regulation, and open-ended interviews with representatives of the public and private regulators of food in the Netherlands.

Assessment of the Ease of Use by Public of Certain Data Set Disclosures in India

Zuno Verghese (M.A/ M. Sc. In Regulatory Governance, Tata Institute of Social Sciences, Mumbai, India)

Data Set Disclosures have been deemed as a suitable means of eliminating information asymmetry and ensuring transparency in the regulated spaces. The available mechanisms for ensuring disclosure of data by the regulatees are direct disclosures, outcome of certain provisions in Company Law and submission of mandated details to a regulatory body. Ease of access of the data set by the public goes a long way in ensuring the creation of an informed public. Existence of data in a fragmented and incomplete format defeats the very purpose of the intentions behind mandating of data disclosure.

On these lines, the objective of the study shall be to assess the ease of use of data set disclosures in India across certain sectors where data set disclosures are mandated and in public domain – Cross Media Ownership details, Clinical Trials Registration details, being few of such examples. The quality of the data set disclosures will be assessed based on various parameters such as coherence of data presentation, presence of real-time linkages to other relevant databases, accessibility (whether the database freely accessible or not), usage of standardized data collection formats, level of emphasis placed on the accuracy of information, penalty mechanisms and effectiveness of the deterrence mechanisms.

The conclusions of the study are expected to help provide key changes and recommendations for improving the quality of data set disclosures. To enhance the utility of the study, comparison shall be carried out of the sector specific data set disclosure norms and its accessibility across nations where the maturity levels and compliance rates of the regulatees are significantly higher.

About Carolina Raiola

Carolina Raiola è consulente Formez PA per l’attività di comunicazione istituzionale e di consultazione pubblica realizzata dall’Ufficio per la semplificazione del Dipartimento della funzione pubblica. Per l’Osservatorio fa ricerca sulla consultazione pubblica delle Autorità indipendenti

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