Workshop on Transparent rulemaking and Enforcement – Abstracts

Transparency in International Rule Making – International Transparency at Work, by Itai Apter

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, by Shoban Badgujar

The concept of responsive regulatory enforcement (RRE) has been discussed and applied for more than two decades by regulators particularly in the western world. This paper analyses the regulatory architecture in the Indian context with regards to the electricity and telecom sectors and advocates the adoption of RRE for the purpose of improving the effectiveness of enforcement mechanisms. It is observed that regulators in India have been operating at the penalty level of the enforcement pyramid. Advocacy for changing this singular approach and adoption of more responsive methods of enforcement is based on the identification of factors present in the Indian context which would make such adoption possible and desirable. The paper also deliberates on the institutional changes that will have to be made in the existing regulatory architecture so as to facilitate the adoption of RRE approach.

Private Regulation and Public Enforcement in Post-Crisis European Financial Services Law, by Olha O. Cherednychenko

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.

Complaints and Better Regulation within the Independent Authorities, by Miriam Giorgio

This paper analyses the institution of complaint as a tool for monitoring the correct enforcement of rules. After a short theoretical introduction, follows a review of the normative framework for each of the independent authorities involved in the survey, focusing on the ways they have regulated complaints within their enforcement strategy. We’ll move then to the analysis of data – collected via a questionnaire filled by the heads of each Authority office – regarding specific information, such as, for instance, the number of complaints lodged in the respective areas over the last five years, the cases of regulatory measures following a complaint or reports on a poor application or a misapplication of rules. The Authorities that have given a feedback, participating in this first survey on complaints, are the following: AEEGSI, AGCOM, COVIP, CONSOB.
Ultimately, the aim is to cast light on the institution of complaint as well as on how the Authorities themselves appear to consider them, taking into account the objective of better regulation: what emerges is that, on one hand, the complaint is a tool directly aimed at improving the quality of regulation; on the other hand, it works as a fire alarm related to the effectiveness of some better regulation tools, such as Air (regulatory impact assessment) or consultations with stakeholders or users. In fact, it has been ascertained that it’s precisely the authorities which normally carry out impact assessments (and, consequently, also public consultations) on regulations with a higher impact on the market, to record a considerably high number of complaints and reports. In other words, the performance of better regulation tools can be assessed and proved in relation to the number of complaints on application-related aspects of the rules established. In this sense, it is possible to conclude that complaints represent an interesting case in point as they must be evaluated in relation to the objective of better regulation.

How Lobbying Transparency benefits Institutional Accountability – The European Union Case, by Gianluca Sgueo

Lobbying has become an increasingly prominent topic in European Union’s political and institutional debates over the last twenty years. Regulatory efforts to address lobbying practices have developed accordingly. The European 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. 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. 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 European Union being no exception – that transparency of lobbying and the accountability of decisionmaking 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, opinions differ on how to concretely benefit accountability with increased transparency of lobbying activities. Two questions are particularly debated. To begin with, there is no agreed notion of the boundaries of transparency of lobbying activities. Does transparency of lobbying only concern the availability of information on the economic and human resources involved by pressure groups, or it should also include other information (e.g. the objectives of lobbying and/or the ethical behaviour of lobbyists)? Further, are business organisations and civil society organisations subjected to different rules of transparency? Second, it is disputed what should be the best approach to regulate lobbying activities. Nonmandatory lobbying registers – as in the case of the European Union – are often criticised because of the incomplete and inaccurate information they offer. To transform the European Transparency Register from a voluntary to a mandatory system, however, is a complex endeavour, both on the political and the legal sides. Furthermore, mandatory registers do not escape criticism. In the United States, for instance, many lobbyists have cancelled their registration to the federal register (while still working as
lobbyists) when the federal government decided to tighten up the rules governing the transparency of lobbying.
This paper has two main goals. The first is to illustrate the efforts put by European Union’s institution to regulate lobbying activities, the shortcomings of the current regulation and the impact of these shortcomings (both in purely economic terms and for institutional accountability). The second goal is to discuss how transparency and institutional accountability are related – and what problems are generated by this relationship – in order to understand how reform of lobbying regulation may concretely benefit to increase the accountability of European Union.

Better Regulatory Enforcement: Emerging Practices in Food Safety, by Paul Verbruggen & Tetty Havinga

Governments and international organisations grapple with the question of how to improve regulatory outcomes and ensure rule-compliance among regulated firms. In some cases, state actors engage with private, non-state actors to overcome the gaps they are forced to leave open in an age of austerity, globalisation and ever-complex technological developments. In this paper we analyse how, in the domain of food safety, state actors collaborate with private actors to ensure better compliance with food safety laws. More specifically, we engage in an empirical study of the Netherlands Food and Consumer product Safety Authority (NVWA), which like other food safety authorities in Europe and elsewhere, has recently deployed new forms of coordination and collaboration with private control systems in the monitoring and enforcement of public food safety laws. The article examines the safeguards that the public enforcement agency designs while coordinating its own activities with private food safety controls, the advantages and risks involved in this strategy, and the extent to which this policy can be improved. From this we draw lessons for public authorities elsewhere willing to engage with private compliance mechanisms, as well as legislatures and public policy makers involved in regulatory reform programmes. 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 sector in the Netherlands.