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09:00-10:30 Session 1A: Competition Law & Policy in Europe

Chair: Wolf Sauter

Location: Cz 116
An Uncontested Idea? Explaining the shift towards comprehensive national competition policy regimes in Europe

ABSTRACT. The spread of competition policy is an important part of the EU’s shift towards being a multi-level regulatory state. Despite a lack of formal provisions on national competition reform in the European treaties, most national competition policy regimes converged towards the EU model between the mid-1980s and the late 1990s. But what were the driving factors of national competition policy reform in Europe? Apart from Eastern European countries, which had to abide by strict economic conditions prior to EU entry, EU pressure to change national regimes was either absent (as in the case of the founding members of the EU) or very low (as in the case of Western and Northern accession countries). In addressing this puzzle of ‘voluntary harmonisation’, this paper argues that transnational networks are crucial to understand the success of the reform processes. Meanwhile, opponents of competition policy reform neither had access to transnational networks, nor offered any viable, alternative competition policy model. Specifically, this paper analyses the relationship between EU level competition policy and national competition policy regimes. In doing so, the paper uses both cross-case analysis and in-depth case studies to identify the causal mechanisms behind national competition policy reform. In addition to that, the convergence of competition laws is one, but certainly not the only factor determining the comprehensiveness of a competition regime. Thus, this paper seeks to trace the development of increasing regulatory capacities of national competition policy regimes.

Buyer Power and the Regulatory Toolbox: What Role for EU Competition Law?

ABSTRACT. Ever since the 1970s, the grocery retail sector in the EU has experienced substantial concentration. Concentration has result in a change in the balance of power between retailers and producers. EU producers have complained about aggressive bargaining on the part of retail chains, including ever increasing demands for low prices and dubious commercial practices such as unfair use of proprietary information and unilateral changes to contract terms. Complaints have resulted in action both at the EU level and at the Member State level. At the EU level, Members of Parliament have pressed for enforcement of the competition rules and for reform of the Common Agricultural Policy (CAP). Additionally, a pan-European self-regulatory initiative has been started in an effort to solve the issues. At the national level, complaints from producers have resulted in the introduction of new laws, sector-specific regulation and self- and co-regulatory schemes. Paradoxically, EU competition law – a legal discipline in the very heart of the European economic constitution – has played a limited role in the debate on and regulation of the exercise of buyer power. Even more interestingly, the Commission and national competition authorities have encouraged the developments in other fields of law. The curious position of competition authorities can be explained by misguided perceptions that the issues at stake in the buyer power debate concern “fairness” and are therefore better dealt with by “other laws”. The question is: how much is known about the nature and effectiveness of “other laws”? To what extent can they replace competition law or complement it without resulting in protectionism or fragmentation of the EU internal market? To answer these questions, the paper builds on available reports on national initiatives in the EU and their effectiveness and uses the EU Better Regulation criteria as a benchmark. Firstly, it gives an overview of the available regulatory approaches. Secondly, the paper proposes a categorization of these approaches into contract law approaches, self-regulatory approaches, and stricter competition law approaches. Based on this categorization, the paper identifies possible pros and cons of these approaches from the perspective of EU Better Regulation. The paper concludes that even if some approaches may be effective, the role of EU competition law should not be under-estimated.

The winner takes it all? Exploring legal barriers and opportunities to joint authorisation in the European Union

ABSTRACT. In many sectors, states limit the number of market parties that can obtain an authorisation for the use of scarce resources within their territories. Because of ongoing expansions of markets, especially in the last decade, more and more market parties prefer one EU-wide authorisation to 28 national authorisations. States, by contrast, still fear decreasing revenues and conflicting national laws if they would award such ‘limited authorisations’ together, e.g. in an EU-wide auction of radio spectrum. What would happen, however, if the overall benefits of joint authorisation for both companies and states would exceed those of individual authorisation? This paper explores legal barriers and opportunities to joint authorisation, as possible conflicts of national administrative laws are considered to be one of the complexities in the context of joint awarding. To that end, the paper considers regulatory regimes in two areas of government intervention where issues of joint awarding arise: public procurement law and telecommunications law. The paper identifies (i) regulatory motives (not) to engage in joint authorisation, (ii) different modes of joint authorisation and (iii) general rules of joint authorisation that apply to any instance of joint authorisation, irrespective of the area of law concerned. It is expected that these general rules of joint authorisation might contribute to solving the alleged conflict of national administrative laws in the case of joint authorisation and might therefore open new paths for interstate cooperation.

09:00-10:30 Session 1B: Instruments of regulatory enforcement

Chair: Ellen Mastenbroek

Location: Cz 117
Diffusion and Diversity of Regulatory Governance at Local Level: How Street-level Regulatory Offices Cope with Uncertainty of Environmental Damages and Ambiguity of Law
SPEAKER: Ayako Hiarata

ABSTRACT. How do street-level regulatory offices make sense of and enforce regulatory statutes under ambiguity of law and uncertainty of environmental damages? In protective regulations where regulators enforce the law against potential dangers, regulators face with a dilemma. An enforcement decision may turn out to be a false positive, where regulators regulate an industry that actually does not pose environmental harm. Alternatively, an enforcement decision may end up a false negative, where regulators do not regulate an industry that inflicts significant environmental harm. Ambiguity of law adds an extra challenge to street-level regulatory enforcement; an abstract law offers a framework for regulators, but leaves regulators to do their own legal interpretations and risk calculations that need to be reasonable for both businesses and citizens.

By utilizing in-depth interviews and surveys, this research investigates how street-level regulatory offices make sense of and enforce newly enacted environmental regulations.

The finding suggests an important role of network structures between street-level offices in transforming "law on the books" to "law in action." Some offices form regional meeting groups with peer offices implementing the same new regulations in different jurisdictions. The regional meetings work as a good opportunity to share their cases and to create network ties between offices, which makes inter-office consultation happen easily.

Both interviews and survey indicate the influence of inter-office interactions on enforcement stringency. Different groups of frontline offices show different levels of stringency. Regression models show that whether belonging to regional meeting groups, degree of confidence in expertise, and degree of urbanization have significant effects on enforcement stringency.

This research argues that inter-office networks, as well as intra-office circumstances, play a role in creating operational understandings of regulatory law. The horizontal networks among street-level offices can contribute to construct what is considered as reasonable, appropriate, and legitimate regulatory enforcement.

Off-Balance Fines. Using administrative fines in financial supervision in the Netherlands
SPEAKER: Arnt Mein

ABSTRACT. Since 2000 financial regulators in the Netherlands, i.e. the Netherlands Authority for the Financial Markets [‘AFM’] and De Nederlandsche Bank [‘DNB’], have the power to impose administrative fines. Thus their set of sanction instruments was extended to include punitive powers, which can be exercised even without prior judicial intervention.

The introduction of the administrative fine was the policy response to the so-called enforcement deficit felt in the early 20th century regarding minor and frequent violations of socio-economic regulatory legislation. Originally such violations were punished under criminal law, but the criminal justice system was getting overloaded. Moreover, the system was considered inappropriate for this type of offences. Administrative law appeared to offer an effective alternative.

The introduction of administrative fines truly was a break-through in law enforcement. Expectations of efficiency were high; yet criminologists were fiercely critical. In summary, they believed that regulators and administrative courts could not be entrusted with administrative fines, and parties’ interests were said to be protected better by criminal (procedural) law.

Based on published fining decisions, interviews with lawyers and staff of the regulatory authorities and case law a study has been made of the fining practices of financial regulators: How do the AFM and DNB weigh the interests at stake, and how do they determine the amount of a fine? And how does this relate to the debate between the opponents and advocates of the introduction of the administrative fine? Shedding a new light on the ‘almost forgotten’ objections to administrative fines, i.e. the lack of counterweight and transparency, the study reveals a remarkable discrepancy between intended objectives and practical implementation.

Getting the hierarchy right: The effects of law on environmental decision-making in Ireland
SPEAKER: unknown

ABSTRACT. Under-enforcement of the EU’s environmental policy has been a problem for years (Kingston, 2012 & 2013). Reflecting this, improving enforcement is currently one of the top priorities for the EU as expressed in its current Environmental Action Programme (2013-2020). This is a high-stake venture, as vital portions of the EU’s environmental acquis which some Member States argue are not “working” on the ground are currently being reviewed under the EU’s better regulation (REFIT) drive. For its part, Ireland has had particular difficulty with environmental non-compliance through the years, as exemplified by the struggle over turf-cutting and water charges. Ireland continues to be a laggard in environmental enforcement in EU terms (European Commission, 2013; Court of Justice of the EU, 2013). Social science offers important tools to help us understand how to improve environmental compliance, by designing our laws in an informed, responsive manner tailored to the particular (legal) culture and society at issue. This is a field where interdisciplinarity of approach is essential: there are many reasons why environmental laws may or may not work in practice (psychological, societal, political, economic, geographic, technical). This paper maps the contributions of diverse strands of contemporary social science literatures (especially the European governance, socio-legal, institutional/behavioural economics literatures) to the environmental enforcement crisis, and the tensions between these literatures. It represents initial theoretical work in a broader empirical ERC-funded project on “Designing Laws to Improve Environmental Compliance”.

Regulation of power distribution and commercial losses in an Indian State, using load shedding as a regulatory instrument
SPEAKER: Geetika Gupta

ABSTRACT. The power distribution utilities in India have been facing the continuous financial brunt on account of distribution and commercial losses which occur due to reasons other than technical losses in the power system. Electricity sector being a network industry involves huge capital and operational investments, and regulation of these losses has remained as an unvarying challenge in front of both the utilities and the regulator in different states across India. The persistent high level of distribution and commercial losses has led to adoption of load shedding as a regulatory intervention to curb these losses, in Indian states such as Maharashtra. Load shedding is used to practice collective punitive action. Adoption of Load Shedding as a regulatory instrument is based on the premise that, the behavior of the non complying consumers will undergo a desirable change due to the penalty imposed and which will ultimately help in reduction of losses. The author intends to study the impact of this regulatory intervention on the compliance behavior of various actors present in the system. The paper would discuss the impact of the discussed policy measure under the lens of Robert Baldwin’s theory of enforcement and compliance. Further, through the research author would explore the ground level factors responsible for heavy losses .The author in this paper shall argue through ground level research that there may be various reasons due to which consumers do not engage in socially responsible consumption behaviors and therefore, penalizing with a broad brush and lack of effective policy making to address the ground level problems, may not lead to success in meeting the objective of reduction in losses.

09:00-10:30 Session 1C: Collaborative regulatory governance: balancing private-public regulation and enforcement in the EU-context

Chair: Linda Senden & Madeleine de Cock Buning

Location: Cz 109
Not fudging nudges: What Internet law can teach regulatory scholarship
SPEAKER: Chris Marsden

ABSTRACT. Behavioural or ‘nudge’ regulation has become the flavour of the decade since Thaler and Sunstein’s eponymous monograph. The use of behavioural psychology insights to observe changes in regulated outcomes from the ‘bounded rational’ choices of consumers has been commonplace in Internet regulation since 1998, driven by co-regulatory interactions between governments, companies and users (or ‘prosumers’ as the European Commission terms us). Nudging was so familiar to Internet regulatory scholars in the late 1990s that it came to be termed the leading example of the ‘new Chicago School’ by Lessig (1998), recognising imperfect information, bounded rationality and thus less than optimum user responses to competition remedies, driven by insights from the Internet’s architecture and Microsoft’s dominance of computer platform architecture. Thus recent ‘nudge’ concerns by regulatory scholars and competition lawyers echo 1990s concerns by Internet regulation specialists. It is a mark of

Internet regulation’s specialisation in Europe, and mainstream regulation and competition law’s failure to fully absorb the insights of that scholarship, that in 2016 the debate surrounding nudges and privacy affecting competition outcomes has yet to reinvent the 1990s wheel of nudge limitations. Learning their Internet regulatory history can help competition and regulation scholars not repeat the lessons of the 1990s Microsoft case. The competition and regulatory aspect of attempts to direct user and market behaviour are a key empirical perspective for regulatory scholars. The  Internet is a network and a real-time laboratory for the distribution and manipulation of information, which is why it is unsurprising that the adaption of that information to affect user behaviour has been a commonplace online throughout the history of the Internet.

The revised New Approach to European standardization; exemplifying the conceptual and constitutional challenges of collaborative governance in the EU
SPEAKER: Linda Senden

ABSTRACT. The Commission’s Better Regulation Package that was presented in May 2015 provides not only an incentive for the use of co- and self-regulation, but also puts emphasis on the necessity of ensuring their appropriate design. Alternative policy instruments, including non-regulatory alternatives; self- or co-regulation; market-based solutions, regulatory alternatives; international standards, and their mix have to be considered, while at the same time the attention is drawn to taking account of the Principles of Better Self- and Co-Regulation drawn up the Commission’s Community of Practice on Better Self- and Co-Regulation (see Tool #15). Yet, the Better Regulation package is not recognizant of the broad spectrum of co-regulatory and/or enforcement arrangements (or collaborative governance arrangements) that may occur in practice. These can be captured in a three-dimensional typology that allows for further systemization and analysis thereof, by positioning these arrangements on the basis of: i) the stage of public involvement in private regulation/enforcement; ii) the nature of public involvement and; iii) the intensity of public involvement.

It is submitted that, depending on this actual positioning of a specific self- or co-regulatory instrument or arrangement, there may be a greater or lesser need to ensure certain constitutional safeguards. This will be exemplified by considering the Commission’s revised New Approach to European standardization in the internal market, and in particular the way in which the new Regulation on European standardization which took effect as from 1 January 2013, aims to enhance the “inclusiveness, speed, responsiveness, transparency, flexibility and scope” of the standardisation system.

European co-regulation and the protection of fundamental rights
SPEAKER: Jessy Emaus

ABSTRACT. The use of European co-regulation should not merely comply with Union law, but also contribute to the realization of the Union’s goals and show respect for the EU’s core values. Since the entry into force of the Lisbon Treaty, the realization of a European social market economy is among its main goals. This presupposes the protection of certain public interests and human rights, as an expression of the core values upon which the EU is founded. These values concern not only the unity of the internal market and the principle of free competition, but in particular also consumer and environmental protection, employee and social protection, data protection, health and safety, equality and the protection of children. While these need to be balanced with the freedom of entrepreneurship, private regulatory behaviour affecting the functioning of the European internal market should not endanger the realization of these goals, public interests and human rights but contribute to their achievement and protection. Human rights can thus not only be an important driver for engaging in private regulation, but also impose constraints or limits thereon. Yet, the horizontal effect of human rights, creating not only rights for individuals but also imposing certain duties upon them, is still being contested. To speak in terms of the Inter-Institutional Agreement on Better Law-making, what “added value” must European co-regulation then represent not just for the private parties involved, but also for realizing the social market economy goal and other Union interests and human rights? This also evokes the more fundamental issue of to what extent matters can be left to private actors at all, when important political choices are at stake and where uniformity is needed to realize the Union's objectives. According to the Inter-Institutional Agreement, in such cases the use of co- and self-regulation is ruled out, but how to define this and how are these limits to be understood?

European co-regulation and its assessment in the light of the ‘trias of competences’

ABSTRACT. As part of the EU’s ‘better regulation” initiative, co-regulatory instruments are promoted as an important alternative regulatory strategy within the framework of EU governance. With its origins reaching back to the early 1980s and the introduction of the so-called “new approach” to technical harmonization in the field of the Single Market, co-regulation can now be considered as a well-established regulatory approach in the current legislative policy of the EU. However, despite its prominent role within the EU’s “better regulation” toolkit, co-regulation still constitutes a constitutionally widely unsettled phenomenon. It is therefore the aim of this explorative paper to analyse the phenomenon of co-regulation at Union level from the specific angle of EU constitutional law, a matter that has thus far not attracted much attention within the academic debate. With that said, the intention of this contribution is to shed light on the hitherto unexplored question of how co-regulation could be evaluated on the basis of and embedded into the broader constitutional framework of the EU’s competence order, specifically in the light of the principles of the so-called “trias of competences” as enshrined in Art. 5 TEU, i.e. the principles of conferral, subsidiarity and proportionality. Based on teleological considerations and the exploration of the legal scope of these three foundational principles of EU constitutional law, this paper establishes analytical frameworks that allow to investigate how co-regulation might fit in with the broader constitutional picture of the EU’s vertical order of competences, including inter alia the delegation of powers doctrine established by the Court in its case law.

Towards an optimal regulatory mix for robotics

ABSTRACT. The European Union aims to promote innovation as a key driver of economic welfare and growth. While the EU market is the largest in the world, it is however not innovation-friendly enough. Investing in the development of autonomous intelligent technology, such as robotics, in Europe lists high on the Digital Agenda. Autonomous intelligent technology (‘AIT’), as incorporated in autonomous intelligent vehicles (‘AIV’) presents serious challenges for current regulatory frameworks in the EU. It is observed that regulatory frameworks on – amongst many other fields – privacy and liability form an impediment for both the development and the societal deployment of AIT in general, and AIV in particular. In order to ensure that a) the regulatory framework is adjusted to be flexible enough to cope with the ongoing technological developments, whilst EU core values such as fundamental rights are protected; b) the adjustment process takes place ‘just in time’ to facilitate development deployment of AIT in society; and c) all relevant stakeholders are involved in the process, resulting in a regulatory framework that is widely supported, and can therefore be effectively enforced,

it is identified that the process of optimisation should take place on both public and private levels, thus creating an optimal mix of regulatory instruments. The main question that will be addressed in this paper, is: which role can private actors in the European Union play in optimizing the regulatory frameworks on liability and privacy to facilitate, rather than hinder, the development and accepted deployment of AIV in society.

09:00-10:30 Session 1D: Evaluating Regulation and Policy

Chair: Claudio Radaelli

Location: Cz 118
Evaluating ex ante evaluation: Defective Regulatory Impact Assessments (‘RIAs’), the Better Regulation Guidelines and the Regulatory Scrutiny Board before the Court of Justice of the European Union

ABSTRACT. This paper raises the question of how to address the severe shortcomings in Regulatory Impact Assessments (‘RIAs’) in EU consumer law, an area of law that has been subjected to ongoing revisions since 2001. Particularly, RIAs do not critically assess the need for harmonisation, nor do they address inconsistencies or objectively compare policy options for the future development of the consumer law acquis. The paper will link the defects in the ex ante evaluation of EU measures in this area to possible ex post evaluation by the Court of Justice of the European Union ('CJEU') in the light of regime developed to ensure the quality of EU RIAs. It will be argued that while the flaws in RIAs are contrary to the 2009 Impact Assessment Guidelines and have been criticised by the Impact Assessment Board, they have not yet been addressed. Are the 2015 Better Regulation Guidelines and the Regulatory Scrutiny Board more likely to address the shortcomings, by offering clearer starting points for improvement and more independent evaluation? Could the Guidelines and the opinions of the Regulatory Scrutiny Board provide reasons for the Court to find that shortcomings in RIAs are contrary to the obligation to motivate decisions, violate essential procedural requirements or infringe on the principle of proportionality?

Universal Access and Service in South Africa: Policy Success, Policy Failure and Policy Impact
SPEAKER: Charley Lewis

ABSTRACT. South Africa embraced universal access and universal service as the centrepiece of telecommunications policy and regulation at the advent of democracy in 1994. This presents a valuable case study, applying and evaluating frameworks of policy success and failure within a developing country context.

The precepts of international best practice in respect of universal access and service were developed and promoted under the growing hegemony of an international telecommunications reform regime from the mid-1980s. Their diffusion, adoption, adaptation and implementation in South Africa by the new ANC government represented a fundamental break with the policies of the apartheid regime, but have been widely criticised as having been ineffective and irrelevant. Examining the track record of this set of policy implementations offers the opportunity both to evaluate policy success and failure over an extended period and to assess the implications of such an assessment.

Examining the period through McConnell’s heuristic framework of policy success and failure allows a more nuanced assessment of the relative effectiveness of this policy shift, and reveals insights about that framework. The paper documents and analyses the implementation of the new policies of universal access and service in South Africa from 1994 to 2014. Employing a social constructivist paradigm, the analysis reviews both primary and secondary documentation, and draws on semi-structured interviews with key informants. It interrogates the new policy approach from the perspectives of the effectiveness of the process, the success of the programmatic implementation, and the political outcomes. Under each aspect the outcomes appear at best to be mixed. However, the long-term impact of the new policy regime has been a fundamental paradigm shift in the landscape of telecommunications policy, suggesting that theoretical and practical questions of policy success and policy failure may need to be re-examined along additional dimensions, including those of institutional path dependency.

Regulatory oversight in the European Commission: the duration of review and decisions taken by the Impact Assessment Board 2007-2015
SPEAKER: unknown

ABSTRACT. Since 2007 the EU Impact Assessment Board (IAB), now Regulatory Scrutiny Board, reviews draft Impact Assessments (IAs) produced by DGs of the European Commission. Composed of five representatives from various DGs and chaired by the Deputy Secretary-General, the IAB used statutory guidelines to assess the quality of draft European Commission IAs, to suggest improvements and, if necessary, request the submission of a revised IA document before the legislative or regulatory decision-making process may carry forward. Between 2007 and 2015 the IAB scrutinised IAs of almost 600 directives, regulations, decisions and communications and, in this role, assumed an important gatekeeper role in EU policy making. This paper explores why some draft IAs are assessed faster than others, and why some IAs had to go through several rounds of review before they were finally accepted by the IAB. To this end, we rely on an original, complete database of all IAs assessed by the IAB between February 2007 and June 2015, when the IAB was replaced by the Regulatory Scrutiny Board – a dataset of 776 entries including revised submissions. We establish the duration of the review process for each draft IA as well as the decision taken by the Board with a view to understand to what extent review time and review decision are affected by various political, regulatory and organisational factors, including the DG issuing the IA, policy agenda code, year, policy output type (directive, regulation etc.), the presence of guidelines, DG representation in the IAB and the presence of midnight and dawn regulation. Our findings are supported by interviews with IAB officers, European Commission officials and representatives from other EU institutions.

Implementing regulatory measures in Sweden: on policy making traditions and the (non) use of regulatory impact assessment
SPEAKER: Lisa Hansson

ABSTRACT. International organizations, such as OCED and EU, have ambitions to implement a cohesive regulatory impact assessment system (RIA) with the purpose to achieve better regulation and, for the EU, increase unity and transparency. Sweden has been criticized for not carrying out RIA in accordance to the recommendations of OECD and EU. In this paper, we use the Swedish implementation of measures related to EU directives to investigate why the application of regulatory impact assessment methods are low. The paper draws from an extensive document study mainly related to the 2009/28/EG directive on the promotion of the use of energy from renewable sources. In explaining, the lack of using RIA and cost benefit analysis our paper shows the influence of the interplay between different institutions and how content is negotiated. The directive is not passively implemented top-down, but increasingly developed by Swedish agencies. We find that in the Swedish multi-level governance system some agencies work as agenda setters and negotiate between agencies and toward the national government level and EU. Instead of using RIA, the effects are evaluated in terms of implemented projects on local government level (without discussion of cost consequences) – stimulating “projectification” and the risk of losing the overall objective. The Swedish policy tradition, where national government level rely on consensus-based coordination between agencies, appears to counteract a more explicit assessment of different policy options.

Technocracy, Democracy, and Public Policy: Evaluating Public Participation in Retrospective Regulatory Review
SPEAKER: Mercy Demenno

ABSTRACT. Public participation in bureaucratic rulemaking plays an important and increasingly visible role in public policy. In the US, agency policy, legislative statute, judicial precedent, and executive directive shape opportunities for public participation in rulemaking. This paper presents an assessment of public participation as a result of one such executive directive, President Obama’s 2011/2012 Executive Orders 13563, 13579, and 13610, which mandated that federal agencies engage the public in “retrospective review” of existing regulations. How effective was public participation in retrospective review? Answering this question requires adjudicating among often-disparate notions of the purpose(s) of public participation in rulemaking. Based on the extant literature and government doctrine, this paper operationalizes a theoretical model of participatory effectiveness based on a contextualized view of the purpose(s) of public participation in rulemaking. The paper begins with an assessment of how agencies implemented the public participation provisions in Executive Orders 13563, 13579, and 13610, with attention to institutional design choices. It then analyzes who participated in retrospective review and through which mechanisms. Using an original dataset of approximately 2,000 public comments submitted during retrospective review efforts, it then evaluates the effectiveness of public participation. Finally, it motivates a larger research agenda focused on how bureaucratic institutional design can promote effective participation, and in turn, better public policy.

09:00-10:30 Session 1E: Playing the blame game? Attributing responsibility in social and risk regulation

Chair: Dovile Rimkute

Discussant: Hanan Haber

Location: Cz 110
Risk Regulation and Responsibility Attribution at the Intersection of the "Blame Game" and "Two-Level Game"
SPEAKER: Ching-Fu Lin

ABSTRACT. Faced with emerging global risks and growing governance challenges, the past decade has witnessed mushrooming regulatory initiatives in many public policy domains – such as climate change, food safety, and financial markets – and in some cases, burgeoning regulatory failures. Much literature in risk regulation has focused on mechanisms tackling global risks and governance challenges, yet little has addressed patterns of responsibility attribution as well as their institutional design implications when a regulatory attempt crashes.

In the arena of food safety where substantial public distrust and criticism of regulators are commonplace, those who regulate may have incentives to play the “blame game” (Christopher Hood, 2010) at the domestic level. However, at the multilateral level, governments also have to deal with their interdependent counterparts regarding cross-border trade in foods. Consequently, risk regulators usually find themselves in the middle of a “two-level game” (Robert Putnam, 1988) – sandwiched in between domestic constituency as well as international political pressures – that further complicates the “blame game.” Such intersection and interaction between the “blame game” and “two-level game” have particularly important implications in highly politicized controversies, such as hormone-treated beef, genetically modified organisms, and ractopamine in pork.

How does responsibility attribution play out when a regulatory failure is partly due to the conflict between the unaligned interests or even polar opposites at the domestic and international levels? What accountability mechanisms should be in place to when regulators tend to shift their responsibility to an international standard-setting body (e.g. Codex Alimentarius Commission)? To what extent do responsibility attribution patterns link to different accountability institutional designs? What happens when a domestic regulatory decision is based on “scientific evidence” considered at the international level? This paper endeavors to examine failed cases of food safety risk regulation, and to explore the politics and dynamics of responsibility attribution, especially at the blame game/two-level game intersection.

Blame-shifting through role-shifting? The construction of public responsibility attributions for political failures in international organizations

ABSTRACT. Current research has shown that the attribution of responsibility for political failures is primarily led by social roles. Role responsibility in turn is eventually based on authority: superior actors are made responsible for the actions of their subordinates. But who is made responsible, if things go wrong and there are several actors exerting authority over this outcome in different roles? I will for the first time thoroughly apply the role responsibility concept to complex role-systems as we find them in international institutions. I rather inductively analyze the construction of public responsibility attributions in a highly contested field of social regulation: the failed common asylum-system in the European Union. The goal of the paper is to find out, which roles evoke most public responsibility attributions: Is it the role of the decision-maker or the potential problem solver? Or do roles that are not based on the position of actors in institutional authority structures primarily determine the direction of attributions? In the course of a rather inductive qualitative content analysis of public responsibility attributions in the European quality press, the mode and the direction of attributions will be identified on the aggregate as well as the individual level. These findings are supposed to be a first step in answering the question, whether and how actual decision-makers are able to shift certain “role responsibilities” towards other actors and thus evade public blame.

Discovering the Dark Side of Power: The Principal's Moral Hazard in Political-Bureaucratic Interactions

ABSTRACT. Principal agent (PA) can be regarded as the most prominent concept for analyzing the relationship between politics and bureaucracy. Notwithstanding the undisputed contribution to understand political-bureaucratic interactions, the inherent bias of PA scholars to attribute moral hazard almost exclusively to the agent, usually referred to as “bureaucratic drift” or “agency loss”, should be scrutinized more critically. After screening the spare literature in which moral hazard of the principal is considered, this paper provides empirical evidence for this neglected aspect of the PA concept. Three cases of German regulatory agencies responsible for drug control, financial services and rail safety are analyzed in critical situations which were largely perceived as bureaucratic failure. As the empirical analysis will reveal, however, a good deal of prior political failures, ranging from disinterestedness to suppressing crucial information, can be attributed in each case to the responsible ministerial departments. This clandestine behavior, called the dark side of power because the intention is to shift the blame or to dodge political responsibility, is integrated into an extended PA-framework. The upshot is that the principal’s moral hazard is not as exceptional as often assumed and should be considered more routinely as a potential explanation for political-bureaucratic interactions.

Return to sender? Political responses to regulatory bias in the postal sector
SPEAKER: Sandra Eckert

ABSTRACT. Where legislators delegate vague or potentially conflicting policy goals to independent agencies, they create room for regulatory discretion. Such a setting is conducive to regulatory bias where agencies are likely to privilege the realisation of certain policy goals over others. But who is being held responsible for related policy outcomes, especially where things go wrong? Does blame reside in the non-majoritarian arena, or will it be ‘returned to the sender’, i.e. the legislator? The proposed conference contribution addresses these questions by studying processes of responsibility attribution and institutional re-design in the enactment phase of regulatory reform. Revisiting the conceptualisation of the ‘blame game’ as a cascade (Hood 2002) it seeks to understand processes of de- and re-politicisation post-delegation. Sector-wise, the focus is on postal services as a network utility where the ‘social’ side of regulation is particularly eminent: the business is labour-intense with a rather rigid cost-structure that results from the impossibility of technological rationalisation of door-to-door delivery (‘last mile’). At the same time, the business is struck by a massive level of electronic substitution, while important parts of national constituencies favour the maintenance of existing service levels. Country-wise the contribution contrasts two cases with differential outcomes: in Germany responsibility for a perceived policy failure has been returned to the political arena, while in Britain regulatory bias has been addressed by yet another shift of competencies towards the non-majoritarian arena. The explanation of such variation integrates arguments related to the initial mandate delegated to the regulator, the issue area regulated and the role responsibility of utility regulators, and the wider administrative context of national regulatory regimes.

Does blame-shifting work? An analysis of the executive's behaviour in banking collapses in Portugal

ABSTRACT. In 2014, one year before general election took place, Portuguese largest private bank – BES - collapsed, with a strong financial and social impact, as thousands of individual investors lost their life savings. The government decided not to intervene, leaving all responsibilities to the two financial regulators – the central bank and securities market regulator. This represented a major shift from the previous banking crisis, in 2008, when the executive in office nationalized another bank, BPN. Independent regulatory agencies have been delegated power from elected politicians (Majone 1994, Thatcher&Stone Sweet 2002) for a multitude of reasons, including cost transfer in unpopular decision-making, i.e., blaming the agency for a decision that could have political costs (Weaver 1987; Egan 2004). Following the literature on blame-game (Hood 2002) and accountability of regulatory agencies (Bianculli et als 2015; Black 2008; Scott 2004), this empirical research is two folded. First, it aims to identify and understand the responsibility-shifting processes and mechanisms used by the government in the BES affair, in comparison to BNP, by looking into forms of intervention, political communication and the use of accountability mechanisms. Secondly, we will investigate whether that responsibility attribution was successful, by analysing how it was perceived by i) MPs and ii) media, as accountability stakeholders. Applying a qualitative content analysis, we will examine official government, parliament and regulator’s documentation, as well as media reports and op-eds of two major newspapers, one general and one business-oriented.

09:00-10:30 Session 1F: Protecting consumers in "big data" markets: a cross-disciplinary approach

Chair: Nicolo Zingales

Location: Cz 119
GDPR, Lemons and Incentives to Compete on Privacy
SPEAKER: Nadya Purtova

ABSTRACT. At a time when the new EU General Data Protection Regulation (GDPR) is adopted, and implementation and compliance starts to draw attention, this contribution advocates a ‘mainstreaming’ of EU data protection laws, i.e. a greater effort to insert these laws in the broader legal and economic context of business transactions, and, next to the public law approach to data protection as a fundamental right, also profit more from advantages that private law mechanisms offer, notably, to the enforcement framework. This argument is distinct from the mainstream view of what constitutes a market approach to privacy and data protection. In the context of the debate about property in personal data, it is often argued that privacy is a public good and that the market is unable to provide for it. For instance, Byford submits that regarding ‘privacy as an item of trade … values privacy only to the extent it is considered to be of personal worth by the individual who claims it’. Pamela Samuelson argues that propertisation of information privacy as a civil liberty might be considered morally obnoxious. ‘If information privacy is a civil liberty, it may make no more sense to propertise personal data than to commodify voting rights.’ However, what this contribution argues is not that data protection should be left up to the market forces. Rather, we submit that in the circumstances when the amount of information processed globally is estimated in zettabytes (1,2 zettabytes, or 1,200,000,000,000,000,000,000 bytes) and growing at a rate of 60% per year, public enforcement mechanisms could use help of the market forces in upholding public law principles regarding how this data is processed. It has been widely argued in the economic literature that the operation of the Information Industry with regard to (e.g. social network sites ) is a ‘lemons market’, i.e. due to the information asymmetry about the data processing practices the companies processing personal data have no incentives to compete on the quality of information privacy protection. This paper will evaluate the newly adopted GDPR on the matter of how well – if at all – the GDPR addresses the ‘market for lemons’ situation and incentivizes the dats controllers to compete on information privacy / data protection.

Preventing “oil spills” in data markets: can a “consumerist” data protection law be the answer?

ABSTRACT. Data is widely seen as the “oil” of the digital economy: a frequently untapped, valuable asset that can be exploited to generate benefits for companies, consumers and the whole Internet ecosystem. However, this analogy should not be brought too far: first, while the nature and economic value of oil are uniform, data are extremely diverse and of different utility. Second, oil collection is an activity that involves significant upfront risk (due to its scarcity) and investment; in contrast, data can be obtained as “digital footprint” from online transactions, reducing the need for an exclusivity reward that is intrinsic in licenses for “oil extraction” or other forms of property. These differences raise a number of issues for regulators striving to identify the appropriate balance between markets and regulation on personal data processing. First, industry players have effectively managed through their control of the relevant technology to not only tap into those resources, but also appropriate them. While laws limit the extent to which personal data can be sold by individuals, the current industry practice is to consider those limits vanished whenever data are “anonymized”, without sufficient attention for the risk of re-identification. Second, the token given in exchange for access to those resources is typically the provision of a service, as opposed to the payment of a license. This exchange not being negotiable, there is insufficient awareness about the monetary value of those data, and the conditions under which they are processed. In light of the significant harm that can be generated by an individual’s loss of control over their data, consumer protection provisions within data protection regimes can limit the types of clauses admissible in online transactions, and prevent abusive company practices short of antitrust intervention. However, this is insufficient without additional regulatory measures addressing the more structural market failures in existing data markets.

Competing with Big Data (paper co-authored with Christoph Schottmüller, University of Copenhagen )
SPEAKER: Jens Prüfer

ABSTRACT. In this paper we study competition in markets as diverse as search engines, maps, and self-driving cars. We identify the common characteristic of these – and many other– markets: they are driven by big data. Specifically, the cost of quality production in these markets is decreasing in the amount of user-generated information, which is a natural, inseparable byproduct of using services offered in such markets, thereby giving rise to indirect network externalities. We construct a dynamic model of R&D competition and show that such markets tip under very mild conditions, moving towards monopoly. We also show how a dominant firm in one market can leverage its position to another datadriven market, thereby initiating a domino effect. We apply the model to several contemporary cases, offer a welfare analysis, and propose a regulatory measure how to mitigate the negative effects of indirect network externalities on competition and consumer surplus.

Mind the gap: Private Power, Big data and EU Law
SPEAKER: Angela Daly

ABSTRACT. The emergence of 'Big Data' and the increasing economic importance of data about individuals for certain businesses poses problems for both individuals' economic interests as consumers and their fundamental rights. These problems are exacerbated by the presence of very large players in Internet and other ICT markets forming concentrations of market power whose business models are heavily reliant on the collection and processing of as much information about users as possible. EU data protection law is a largely 'permissive' regime sanctioning this data collection so long as it is in accordance with certain requirements, which persists in the new GDPR, and does not explicitly concern itself with the size of entity doing the processing (beyond threshold conditions). EU competition law, however, does concern itself with large concentrations of private power, in its abuse of dominance and merger control regimes, but has hitherto had problems in recognising accumulations of user data in its assessments of anticompetitive scenarios. The ongoing Commission competition investigation into Google's alleged abuse of dominance may bring the interaction between competition and data protection laws to a head. This presentation will examine whether a 'joined-up' approach to these Big Data issues can be followed within the current EU legal framework, and areas in which EU law needs to go further in order to protect users' fundamental rights and economic interests vis-a-vis data monopolies. The hybrid nature of media pluralism will also be examined as a possible example of economic & 'social' interests being promoted by the one regime which could guide an integrated EU approach towards Big Data governance.

09:00-10:30 Session 1G: Big Data, Digital Design and the Politics of Security

Chair: Karen Yeung

Location: Cz 008
Politics of prediction: big data governmentality and the digital anatomy of (in)security

ABSTRACT. From ‘connecting the dots’ and finding ‘the needle in the haystack’ to predictive policing and data mining for counterinsurgency, security professionals have increasingly adopted the language and methods of computing for the purposes of prediction. Computing and information sciences appear to offer answers to a wide-ranging array of problems of (in)security through the power of big data and digital devices. This paper investigates the emerging big data governmentality by placing it within the transformation of discipline and biopolitics.

Unlike discipline and biopolitics, we argue that big data governmentality constitutes timespace as abstract ‘hotspots’ and subjects of governance as singularities. The constitution of time-space and subjectivity reconfigures governmental interventions and has significant political effects on the re-articulation of security practices.

The Potential of Big Data for Law Enforcement and Security Intelligence: A Cultural Analysis

ABSTRACT. Big Data technologies hold great promise for improved efficiency and effectiveness for law enforcement and national security. This article explores the potential impact of Big Data on the production of security in society. Building on a Bourdesian framework for analysing police and new technologies, the article draws on empirical data from an Australian study to examine how security agents made sense of the capability and value of Big Data and developed technological frames that envisaged how this new technology could enhance or change their practices. The analysis reveals the expectations and anxieties regarding Big Data among stakeholders and concludes that the community should take a more active role in understanding Big Data and influencing the governance of its usage.

Digital governmentality and data protection by design: exploring the dream of 'executable' regulation

ABSTRACT. The most compelling contemporary feature of what can be called the ‘digital’ is the continuous fabrication of data. Data are generally understood as the translation of people, behaviour, things and events into information on which knowledge can be established and action taken. As such, data have become not only a remarkable force in the production and control of societies, but also a force that has to be governed.

In the European Union, ‘data protection’ is framed as the productive response to the potential tensions triggered by the digital in its fabrication of data. Born as a legal construct different from the notion of privacy, data protection is now presented as a way to reckon with the powers of data – governing them somewhat bio-politically: channelling their potential rather than preventing their fabrication.

Critical studies have hitherto rarely engaged with data protection, and when they do so, they either consider it as a mere lure or as a passive object, continuously overwhelmed by security and surveillance practices. Hence, there is a lack of critical analysis of data protection as a proper form of digital governmentality: both government – a continuous effort of dis/ordering – and mentality – the reflexive effort to make sense of the different forms of dis/ordering.

The goal of this paper is to delve into the politics of data protection by focusing on the emergence of the so-called Data Protection by Design. Data protection by design can be tentatively defined as the project to enforce the respect of legislation and the protection of data subjects through the adoption of tailored technological and organizational tools. Given that this new tenet of data protection is still in the midst of political decision making, a critical inquiry of data protection by design allows us to analyse how some of the constitutive tensions of the digital are conceptualized, and tentatively solved. Moreover, the analysis of the emerging rationale of this new principle hints at the perverse political implications of the dream of ‘executable’ regulation, a particularly promising insight given the European and international drive towards a will to govern through (big) data.

09:00-10:30 Session 1H: Regulatory Responses to Complexity

Chair: Sarah Devaney

Location: Cz 122
Ideal Outcome Scenarios as a Substitute for Rules: A Response to Complexity in Audiovisual Media Regulation
SPEAKER: Tom Gibbons

ABSTRACT. When regulatory standards reflect complex political, moral and cultural values, it is difficult to articulate principles and rules that fully capture the nuances of required behaviour. At least, it is difficult in terms of the rationalist assumptions which underpin much regulation. A possible solution is to work deliberately with the intuitional and metaphorical language that is characteristic of value discourse. This paper examines the use of, what will be described as, ‘ideal scenarios’ as a regulatory technique to implement inchoate standards. Drawing on examples from media regulation involving the specification of licensing criteria, successful programme delivery, and pluralism objectives, it analyses the effectiveness of the technique in terms of accountability and enforcement and its potential to render complexity more manageable.

Developing Regulatory Responses to Complexity in the Contemporary Illicit Drugs Market

ABSTRACT. Historically, the national and international regulatory approach to the control of illicit drugs has been to list substances regarded as harmful in legislative provisions, and attach sanctions to their supply, possession and production. More recently, this approach has faced the challenges of the development of vastly wider ranges of substances available as well as the dynamism of the markets supplying them. The complexity of researching, cataloguing and policing these substances is clearly illustrated in the case of ‘novel psychoactive substances’ (NPS) which present novelty and unpredictability in the form of unknown health risks and uncertainty of ingredients. Similar to drugs in their effects, NPS’ distinct features mean however that they do not fall under the remit of the United Nations drug conventions. Their proliferation, assisted by widescale deployment of information technology, means that there are now more intoxicating substances falling outside of the UN conventions’ scope than within them. The UK governments’ proposed legislative response to this complex situation is the Psychoactive Substances Bill 2015 which, if enacted, would make it an offence to produce, supply, possess, import or export substances on the basis of psychoactivity alone, without requiring evidence of harm. This paper will first consider the relationship between criminalization and regulatory complexity. As criminalization stimulates further innovation to obviate the threat of detection, can legislation be understood here as a force which increases complexity and undermines legitimacy? Secondly, in the face of the challenges which NPS pose to traditional empirical and scientific analysis of substances and their effects, it will consider whether inclusive regulatory risk management might reduce complexity and increase regulatory legitimacy and efficacy.

Complexity in Food Regulation: Understanding the social and criminal organisation of food fraud
SPEAKER: Sarah Devaney

ABSTRACT. The recent horsemeat scandal raised awareness of the deliberate adulteration of food products across Europe, in what appears to be an ongoing and endemic practice. This paper identifies the complex conditions under which opportunities for such fraud emerge, and the ways in which these undermine the capacity for effective regulation, and ultimately, the protection of consumers from inauthentic foods. In identifying complexities inherent in the transnational food supply matrix, we consider those that emerge i) at the institutional level, which demonstrates fragmentation in both business and regulatory contexts; ii) at the social level, in the context of regulatee collaboration in both legitimate and illegitimate activities; iii) at a criminal level, through a failure to understand the crime commission process, and the nature of the offence of fraud (i.e. the investigatory and evidentiary complexity); and iv) at the market level through the structure of existing networks that enable the concealing of illegitimate behaviour in an otherwise legal market. We then argue that these myriad complexities create conditions that are conducive to fraudulent behaviour by legitimate actors in the course of their occupations within the food supply matrix. These conditions produce and reproduce dysfunctionalities within the food supply chain that generate significant obstacles to the capacity for effective regulation. Insofar as regulatory approaches are not based on an understanding of complexity within the food supply chain, the regulatory objective of protecting consumers from inauthentic foods will remain an elusive aim.

Balancing Protections of Religion and Sexual Orientation: the Dangers of Avoiding Complexity

ABSTRACT. Over the course of the last decade, legal scholars argued that the judicial interpretation of Article 9 of the European Convention on Human Rights had provided insufficient protection of religious freedom. This was reflected in the resort by citizens who felt that their religious freedom had been impaired to the use of anti-discrimination law on the grounds of religion, under which the outcome was far more likely to be successful than under Article 9.

Initially welcomed by legal commentators, this development in the protection of religious freedom has recently been dissipated by a plethora of judicial decisions concerning the conflict between this right and the prohibition of discrimination on the grounds of sexual orientation. Parties involved who, on personal conscience grounds, could not provide certain services to same-sex couples, have claimed that judicial pronouncements preventing discrimination on the basis of sexual orientation have discriminated against them on the grounds of their religious beliefs, and this has been supported by a body of academic scholarship.

One proposed regulatory approach, providing procedural and interpretive simplification to the challenges of deciding between two conflicting fundamental freedoms, is to set out a legislative hierarchy of protected rights. However, this avoidance of complexity would mean that socio-cultural contextual nuances would be unrecognised by regulation, posing the danger that rights might remain unacknowledged. Case-by-case judicial consideration provides acknowledgment of the protection of freedoms, even in cases where one has to be superseded by another in a diverse and pluralistic society.

09:00-10:30 Session 1I: Private Standards in Global Value Chains: Questions of Transparency and Compliance

Chair: Paul Verbruggen & Phillip Paiement

Location: Cz 123
"Comply or explain" vs. "comply and explain": In seek of coherence in the European regulatory framework on the Human Rights Due Diligence

ABSTRACT. The United Nations Guiding Principles on Business and Human Rights (UNGPs), endorsed in 2011 by the UN Human Rights Council, have become the international standard on business and human rights and have led to widespread convergence of national and international regulatory initiatives. Focusing on Europe, this paper shows that the consensus reached, in particular on human rights due diligence, has been a driving force behind the influence the UNGPs have had on private standards and on public regulation of business and human rights. One example of the latter is offered by the EU’s integrastion of the UNGPs into legal and policy instruments, including the 2011 Communication on CSR and the EU Directive no. 2014/95 on non-financial reporting. This has been accompanied by recent developments in EU Member States’ public regulation, including the UK Modern Slavery Act and the French bill on ‘devoir de vigilance’. Among them, we can distinguish basically two main approaches. A first meta-regulatory approach based on the “comply or explain” strategy has been chosen by the UK and the EU. A second approach (“comply and explain”) is leaded by France and it’s based on a more detailed regulation of the supply chain, through a human rights due diligence obligation. Despite the emergence of a piecemeal regulatory approach, the paper argues that better policy coherence  is still necessary in order to drive transparency and effective compliance by private actors inside and outside the EU. 

Accounting for Power Dynamics in Global Value Chain Transparency Mechanisms

ABSTRACT. Private standards are quickly becoming a preferred tool for generating transparent accounts of the labor environment, production process, and the environmental and social effects that various commodities have on the communities involved in their global value chain. As these standards frequently aim to provide a transparent reflection of these activities to a transnational audience, trust in the compliance procedures has become an essential foundation for their success. With the challenge of developing mechanisms that most accurately measure compliance and protect against corruption, this paper evaluates the contributions that the sociology of labor and labor law can make to the development of robust compliance mechanisms. Despite a mostly national past, sociological accounts of labor and labor law are still able to provide considerable insights into the power dynamics of the labor environment, which proves valuable in developing private standards that are capable of avoiding transnational regulatory capture by managerial interests. In particular, this paper evaluates the development of the now famous Accord on Fire and Building Safety in Bangladesh to identify which new compliance mechanisms in the Accord offer improvements for providing transparent reviews of labor conditions in the value chains associated with the Bangladeshi garment industry.

Private Regulatory Standards in International Commercial Contracts: Questions of Compliance and Interpretation

ABSTRACT. Regulatory standards developed by non-state, private actors are regularly incorporated in contemporary international commercial contracts. In this way, lead firms in the supply chain, such as large retailers and brand-name companies, seek to ensure specific qualities of the goods and services they sell to consumers locally, yet source globally. The qualities these standards aim to ensure vary and can be multiple, and concern (matters of) authenticity, safety, security, sustainability, traceability and welfare. Compliance with private standards is significant, both for the lead firm and its suppliers down the chain. For lead firms it is the principle way in which it can deliver on the qualities of the products and services they source globally, while for suppliers compliance is a preliminary condition to access primary commodity markets, to earn a supply contract and to keep it. Assessing and ensuring compliance, however, may be problematic first of all because the qualities private standards aim to ensure are often credence qualities. Secondly, most of the standards used are processbased, and can be unclear or ambiguous. This triggers three types of questions that the paper intends to answer: (i) how is compliance with private standards incorporated in international commercial contracts assessed and ensured; (ii) how are conflicts between the contracting parties concerning compliance and interpretation of standards resolved; and (iii) what role do courts play in these procedures? In addressing these questions the paper reviews (empirical) studies on the use of private standards in contracts, private certification schemes and case law on the interpretation of private standards.

11:00-12:30 Session 2A: Trends in competition policy

Chair: Safari Kasiyanto

Location: Cz 116
International diffusion and the convergence of competition policy
SPEAKER: Christel Koop

ABSTRACT. Since the 1980s, governments around the world have introduced economic policies aimed at enhancing market forces and competition in the market. The spread of competition policy is a primary example of this development: while competition acts were a rarity before the 1980s, countries without such acts are hard to find these days. Interestingly, we have even observed convergence on a specific model of competition policy; a model that relies on the prohibition of horizontal agreements and the abuse of dominant positions, on strict limits to vertical agreements, and on merger notification systems. Our understanding of these changes is limited though, mainly due to the lack of international data on competition rules. Indeed, most studies of the adoption of the rules have depended on single and comparative case studies. The proposed paper seeks to map and account for the convergence on a single model, introducing a new dataset of features of competition policy in countries around the world. We particularly focus on the importance of international policy diffusion: to what extent has the convergence been driven by pressure of international organisations and trade agreements, and by regulatory competition, policy learning and emulation?

How should the new economic regulators for healthcare work with the competition authorities?

ABSTRACT. It is well-established that the healthcare sector is overseen by myriad regulators with varying degrees of independence from government, including professional self-regulation and quality regulation. However, recent healthcare reforms in the Netherlands and England also established new independent regulators for healthcare in the form of the Dutch Healthcare Authority (NZa) and Monitor.

Both countries have drawn – to a lesser or greater extent - on their experience of establishing economic regulators in other sectors (such as telecommunications), so it might be inferred that there are similarities between the NZa and Monitor. This extends to the focus of both regulators on patients and complex relationships with government.

However, there is also a significant point of divergence. The Dutch Healthcare (Market Regulation) Act 2006 (Wmg) originally provided for the Authority for Consumers and Markets (ACM) and the NZa to have separate powers. In contrast, the Health and Social Care Act 2012 (HSCA 2012) grants Monitor and the Competition and Markets Authority (CMA) concurrent powers so that either may apply the general competition law provisions, in line with the experience of other sector regulators.

Despite these very different approaches, criticisms in both countries have suggested that the regulators’ scope to intervene in competition cases should be restricted if not removed. This common criticism is curious in view of the significant – and sometimes unexpected – distinctions between the application of competition law to the Dutch and English healthcare sectors, and the role of government in each country in this connection.

This paper assesses whether a clear distinction between regulator and competition authority intervention or between ex ante and ex post approaches is helpful in view of ongoing changes in each country – the transfer of some NZa competition powers to the ACM in the Netherlands, and Monitor’s reformulation as NHS Improvement in England.

Learning to tolerate the high cost of large scale innovations in ICT with potentially anticompetitive effects: An argument on the impossibility of effective regulation

ABSTRACT. It is a common adage that high technology industries, like ICT, are hard to regulate effectively because of their rapid evolution. This is said in relation to both ex ante regulation and ex post response, whether regulation or antitrust (Pitofsky, Easterbrook). While the breadth and generality of this statement obscures rather than illuminates the debate on regulatory options of potentially anticompetitive acts, there is some truth to it: This paper argues that there is no efficient way of regulating large-scale innovations in the ICT sector with potentially anticompetitive effects. The policy implication is that potentially anticompetitive effects are the cost society pays to enjoy large scale innovations and should be tolerated. Proof of this thesis brings together elements from economics, management, and technology studies. The starting point is the evolution of innovations from a fluid experimental, pre-paradigmatic phase where the innovative product or service is still acquiring its features in a trial and error manner and in response to anecdotal demand, to a mature, stable, paradigmatic phase where the main features of the innovative product or service have solidified (Dosi, Abernathy, Utterback, Nelson, Porter, Klepper). During the fluid phase, regulation is inept to catch either potential problems, since the market is still taking shape, or potential solutions, because these would be tied to conditions that will quickly go obsolete. By extension, once the relevant market has stabilised, regulation can identify problems and solutions. The difficulty with large scale systemic innovations and the market around them is that they never really stabilise enough nor acquire "final" characteristics. This is because of at least three reasons: First, the main characteristic of large scale systemic innovations is that they consist of multiple, moving, interconnected components, such that changes are frequent and can affect the whole system even if they occur only in one component. Relatedly, often large-scale systemic innovations in the ICT market are structured as platform ecosystems and we know from platform theory that the keystone elements of a platform are not necessarily stable, but rather value and control can in time coagulate around different parts of the platform changing its architectural shape. Second, even assuming that the main elements of a large scale innovation market are there, we often find that these products or services maintain an ecosystem around them that can persist through time, through a series of minor innovations, which seen in a continuum extend the value of the product or service and accordingly the market around them. To break by means of regulation this virtuous cycle of "renewing" the original large scale innovation in an effort to combat collateral anticompetitive results, would negate the benefits not just of the minor innovations (the ones under regulation) but of the entire ecosystem built on the basis of the original large scale innovation in the first place. IBM's mainframe computer line is a good example of this. Third, empirical evidence suggests that the technology intensive nature of large scale systemic innovations in ICT changes market conditions and power interrelations all too often to make an educated assessment as to whether regulation is needed and in what direction. We have seen examples of this reality with IBM's mainframe line and Microsoft WMP. The above analysis does not imply that large scale innovations cannot have anticompetitive effects. It merely points out that these come as an unavoidable cost to enjoy such innovations, since we have no meaningful way of surgically correcting their anticompetitive reverberations for the reasons explained previously without destroying the value these innovations create. It is therefore suggested that competition and regulatory policy endorse this tradeoff and turn their attention elsewhere.

11:00-12:30 Session 2B: Big Data, Law, Ethics and Governance

Chair: Karen Yeung

Location: Cz 008
Who is Misbehaving? On Why (Big) Data Don't Need Ethics

ABSTRACT. On both sides of the Atlantic, from the brightest marketing departments of big (data) industry players to the greyest advisory opinions of the European Data Protection Supervisor (EDPS), the idea that current global data processing practices demand the development of ‘digital/data ethics’ is gaining increasing support. ‘Digital/data ethics’ are 4 needed, it would seem, to ensure Big Data grows even stronger and reaches its supposed potential, which may somehow include making us all healthier, savvier, richer, and perhaps even happier. Big Data will take us there, we are regularly told, but to do so it might need the help of a new ‘ethics’ guaranteeing it develops without provoking any inconvenient or negative effects, such as generating discrimination or generally infringing our fundamental rights and freedoms (most notably, privacy and the protection of personal data).

The current ethics shift in the discourse surrounding data, and especially accompanying Big Data, triggers the question of its implications for law. It prompts discussion about whether the ‘new’ ethics aims to displace or supplement the legal framing of contemporary data processing, and, if the latter is the case, in which ways they might actually do so.

This contribution will engage in such a debate by examining the intersections between calls for ‘digital/data ethics’ and European privacy and personal data protection law. It will review how recent so-called ‘ethic’ claims overlap with and/or contradict legal claims, inquire about their usefulness, and question their legitimacy. In this context, it will pay particular attention to the relation between ‘digital/data ethics’, universalism and regionalisation. Ultimately, it shall identify which actors in the field of data regulation might benefit from the trend pushing for ‘digital/data ethics’, and who could be negatively impacted, underlining that, in any case, ‘digital/data ethics’ is certainly not about helping data behave themselves.

We have always managed risks in data protection law: Understanding the transition from a rights to a risk-based approach

ABSTRACT. In recent years, data protection law has – very much like other regulatory fieldsincreasingly become the object of a managerial turn. The latter is embodied in risk management tools and standards, which are themselves enshrined in legal provisions on data protection (or privacy) impact assessments, on data protection (or privacy) by design and by default, on accountability, on privacy risk management programs, etc.

A commonplace criticism against this risk-based approach is to pit it against the traditional legal approach (the so-called rights-based approach), which, by definition, would be more virtuous.

One of the aims of this contribution is to provide nuance to the purportedly irreducible conflict between these two approaches. In particular, an analysis of data protection through the lens of regulation theory shows a striking similarity between the rights and the risk approaches. Core data protection provisions such as data minimisation, purpose specification, data accuracy, consent, etc. are seen as specific, legal approaches to managing risks stemming from information and communication technologies, and which threaten individuals’ fundamental rights.

However, that is not to say that the two approaches are identical.

First, the process of risk management (or risk analysis) is composed of two steps: the assessment of risks and their mitigation. Whereas the proposed tools of data protection management fully mirror this process, the legal approach is characterised by the absence of the assessment step.

Second, the turn to risk management tools, though conveying the same logic of managing technological risks, is far from neutral. On the one hand, these tools are technical analytical instruments rooted in mathematical and system engineering practice, which therefore entail a translation and a reconfiguration of legal concepts. On the other hand, they also embody significant values and ideals, not least of accountability, responsibility, entrepreneurship, risk-taking, profitability, and technical efficiency, all of which characteristic of a neo-liberal governmentality.

One can make a number of remarks following these observations.

Given their similarities it is not necessary to oppose the two approaches. On the contrary, they can even be articulated since the legal approach is lacks the risk assessment step. Maybe the use of the latter can lead to a better application and understanding of legal concepts?

However, this articulation does not go without risks insofar as the management of risks is reconfigured in broader values and practices that directly affect the manner in which it is undertaken. Given that what is at stake is our fundamental rights, it is argued that such articulation should therefore respect some constraints stemming from legal practice. Of particular interest are the recent CJEU so-called Schrems case, which addressed infringements upon the essence of the right to data protection, as well as the principle of purpose specification, the relevance of which is heavily contested in a “world of big data”, but which is nonetheless at the heart of the European Charter of Fundamental Rights definition of the right to personal data protection.

Escaping Algorithmic Prison: How Can we Construct Meaningful and Effective Regulatory Regimes to Govern the On-Going Big Data Revolution?
SPEAKER: Karen Yeung

ABSTRACT. It is claimed that society stands at the beginning of a new Industrial Revolution, powered by the engine of ‘Big Data’. In the same way that Henry Ford’s system of mass production, which subsequently became manufacturing orthodoxy, precipitated the late 19th century Industrial Revolution and thus provoked a new understanding of labour, the human relationship to work, and society at large, it is claimed that the Big Data Revolution is ushering in profound social transformation of equivalent scale and significance.

But the content and contours of those transformations are far from settled. The current picture is anything but promising, even leaving aside the disturbing implications for privacy and democratic governance arising from the Snowden revelations. For example, Bill Davidow, writing for The Atlantic in 2014, claims that Big Data analytics are being employed by both corporations and governments to create highly granular profiles upon which many consequential decisions are being made, such that millions of people are now virtually incarcerated in “algorithmic prisons”. He notes that many people cannot find employment due to their internet profiles, or have difficulty purchasing or accessing a range of services, ranging from the purchase of insurance, accessing loan finance, 6 purchasing property, renting a house or boarding an aeroplane. Yet few of us are aware that these automated, algorithmic processes are at work, and of the tangible harm that they can produce. And, as Davidow points out - even if we do, we may not know who our jailer is or even the type of behaviour that condemned us in the first place.

On the other hand, optimists portray Big Data as offering the potential for securing greater transparency in both government and commercial practice, and for rooting out and addressing invidious forms of historical discrimination that have hitherto been difficult to establish because we lacked the evidential tools to identify, quantify and analyse them.

These contrasting socio-technical imaginaries reflect a deep ambivalence concerning Big Data’s capacities to generate new insight that may bring positive social transformation, whilst acknowledging that such techniques might generate harm in the service of sectional (largely private) interests, rather than in ways that may be conducive to values of fairness, equality, justice, social solidarity and democracy.

This paper argues that the task of developing and implementing regulatory governance systems that are meaningful and effective is critical and urgent. It seeks to make tentative progress towards identifying various models of regulatory governance that might enable society to reap the benefits of Big Data whilst minimizing its potential for individual and collective harm.

11:00-12:30 Session 2C: Chinese whispers and regulatory change: Explaining the unintended consequences of international norm diffusion

Chair & Discussant: Jacint Jordana

Location: Cz 109
EU accession process and diffusion of regulatory tools within public administration: establishment of regulatory impact assessment in Latvia and Croatia
SPEAKER: Ieva Bloma

ABSTRACT. The paper examines the diffusion of regulatory tools within EU accession process. The so‐called Co‐ penhagen criteria, which set general enlargement principles, imply that candidate countries carry out regulatory approximation with EU law and set up institutions necessary for proper implementation of acquis communautaire. In this way, the EU accession process involves the establishment of certain meta‐rules that are also known as regulatory impact assessment (RIA) and that are supposed to help improving the overall regulatory quality. Nevertheless, RIA as a regulatory tool has various rationales; and different governments may choose to establish it for different reasons. The external experts and consortiums which – through the pre‐accession financial instruments – help to spread the ‘RIA ideol‐ ogy’ across candidate countries thus may have such understanding of RIA that differs from the per‐ ception shared among domestic actors who are in charge of implementing the meta‐rules in ques‐ tion. The paper traces the process of RIA establishment in Latvia and Croatia, countries that joined the EU in 2004 and 2013 respectively. The main aim of the paper is twofold. Firstly, it explores the interaction between epistemic communities and domestic actors within the process of norm diffu‐ sion as regards the establishment of RIA rules. Secondly, it seeks to unfold whether and how various understandings of RIA rationale may lead to unintended consequences when it comes to practical implementation and functionality of this regulatory tool.

Paradoxes of ratification: The impact of the Nagoya Protocol on Brazilian biodiversity policies

ABSTRACT. To many observers, the adoption of the Nagoya Protocol was expected to enhance the ownership rights of traditional and indigenous communities, which had only been vaguely addressed in the Convention on Biodiversity. In Brazil, however, the ratification process of the protocol has motivated reforms which move in the opposite direction. Recent changes in law are likely to diminish the self‐ determination rights of local communities with regard to their biological resources and traditional knowledge. This paper attempts to explain the paradoxical effects of the international agreement by the interplay of international and domestic factors. It is argued that the implementation of the Nagoya Protocol in industrialized countries triggers a reorientation of governmental priorities in Brazil, which in turn leads to a rearrangement of institutional competencies and changing patterns of access modalities for societal actors. Ultimately, the ratification of the Nagoya Protocol bears unintended consequences which eventually undermine its original goals. Our case study illustrates that international agreements may impact domestic public policies even before (if ever) they are ratified. The mere existence of new international context conditions may weaken the rights of those who were expected to benefit most from the international wording. The paper is organized as follows. It first sketches the Brazilian interpretation of the outcome of the negotiations of the Nagoya Protocol against the backdrop of its implementation in industrialized countries. While the second section analyzes the institutional recalibration of the Brazilian decision‐making structures, the third section shows that changing patterns of institutional responsiveness significantly alter the power balances among societal actors. The paper concludes with an outlook on possible future developments, a discussion of alternative explanations, and a summary of the theoretical implications of our empirical findings.

A Complicated Relationship: Regulatory State and Human Rights in the Global South

ABSTRACT. For years, there has been a particular tension between the adoption of the regulatory state and the judicial enforcement of social rights (such as the right to water) in the developing world. However, only a few studies have attempted to explain the causes and mechanisms associated with this phenomenon. This paper presents an updated analysis of the overlaps between the Colombian Water and Sanitation Regulatory Agency’s regulations (CRA) and the Constitutional Court’s rulings on water service disconnection issues (1992‐2015). It begins by presenting the relations of the Constitutional Court and the CRA with other institutions, as well as their statutory duties and corporate objectives (following the approach developed by Tony Prosser). It then describes the origin, content and evolvement of their overlaps on water service disconnection issues. Next, it explains why the notions of “institutional isomorphism” and “regulatory enterprise” are more suitable to explain this case study instead of the specific literature on the relationship between regulatory agencies and courts or other more dominant approaches such as capture theories. Finally, it concludes by explaining why not only the regulatory rationales applied by the CRA and the Court were products of different episodes of institutional isomorphism, but also their limitations to work as a “regulatory enterprise”.

The Political Economy of Patent Harmonization and Differentiation: An Empirical Analysis

ABSTRACT. One of the most important debates in the field of international political economy regards how globalization encourages the harmonization of national economic policies and practices. In the case of intellectual property (IP), this topic has received considerable attention, given the establishment of new international rules that call for unprecedented levels of policy convergence. The World Trade Organization's Agreement on Trade‐Related Aspects of Intellectual Property Rights (TRIPS), the IP provisions in bilateral trade agreements, and foreign assistance from donor countries encourage convergence. While analysts have debated the channels of harmonization, such as the relative effects of the different external drivers, we know little about the extent to which harmonization of outcomes is actually produced. We start with all pharmaceutical patent applications filed globally, we trace the international applications to national jurisdictions, and we examine outcomes and prosecution histories of each application in developing countries (Argentina, Brazil, India, Mexico, South Africa), as well as in the USA, Europe, and Japan. The countries are selected because of attributes of their new pharmaceutical patent systems that would expect, in some cases, similar outcomes, and in other cases, different outcomes (i.e. our cases allow us to see whether expectations of both harmonization and differentiation are supported by the data). Our novel strategy, based on an original dataset, allows us to examine how the same ("twin") applications fair in different countries. In doing so we can empirically assess the extent to which globalization in intellectual property is generating de facto harmonization of outputs.

11:00-12:30 Session 2D: Dynamics of inspection and enforcement

Chair: Koen Van Aeken

Location: Cz 117
Is Government a Right Supervisor of the Regulatory Enforcement?
SPEAKER: Beata Kviatek

ABSTRACT. It is now generally accepted that the quality of the regulatory arrangements should be appraised not only by looking at the institutional design, but also by evaluating the factual enforcement and implementation of regulations. It is therefore advised that national governments take a more active stance in supervising the regulatory enforcement by different regulatory agencies. However, in some cases, government’s activism might be an impeding factor in regulatory enforcement. That this is not so crazy idea shows the analysis of the regulatory enforcement by Lithuanian Competition Authority in the area of competition policy during the years of integration to the European Union. For example, not only political and financial independence of the Competition Authority was difficult to establish, but also functions and competences of the regulatory agency were changed a number of times, which hampered the effectiveness of the agency’s performance while enforcing the competition law. In addition to often changes of functions, also the scope of competences was changing. As a result, the variety of tasks attributed to the Lithuanian Competition Authority caused the growing overload of work, which further hindered its regulatory practice. The question is who can be blamed for that? Was it just the inexperience of the government who was seeking for the best institutional design and could not stop with redesigning the regulatory agency or was it the intentional behaviour guided by some concrete interests as a result of a regulatory capture? The analysis of the regulatory enforcement during the period of 15 years does not allow for disregarding of the second possibility.

Refining Braithwaite’s ‘motivational postures’ approach - Explaining non-compliance with the smoking ban by Dutch bar owners

ABSTRACT. Research shows that Braithwaite’s motivational postures approach (Braithwaite, 2003, 2009) is useful to capture the motivations and intentions of regulatees and helps to explain regulatory compliance. Braithwaite distinguishes five motivational postures: commitment, capitulation, resistance, disengagement and game-playing.

This paper focuses on non-compliance. Two motivational postures are related to non-compliance: resistance and disengagement (Braithwaite, 2003, 2009, 2011). Braithwaite shows that non-compliance is more persistent for high scorers on disengagement, than for high scorers on resistance (Braithwaite et al., 1994).

Recent studies have shown the importance of procedural justice in enhancing compliance (Murphy et al. 2009; Tyler, 2006). Procedural justice appears to be more effective in enhancing compliance when regulatees are high scorers on resistance and less effective when they are high scorers on disengagement (Murphy & Cherney, 2011; Murphy, 2014). However, to date no research has tried to explain the background of this difference.

This study tries to explain this difference by bringing together motivational postures and legitimacy. Legitimacy has been operationalized as the ‘perceived obligation to obey the law’ (Tyler, 2006). This study consists of a survey (N=620) of bar and restaurant owners confronted with a smoking ban in the Netherlands. The findings suggest that ‘disengagement’ is characterized by a lower perceived obligation to obey the law and ‘resistance’ is not. This partly explains the persistency of the non-compliance of the bar owners characterized by a high score on disengagement.

The governance of frontline inspectors in a turbulent world

ABSTRACT. In the current turbulent society, the work of regulators is becoming more complex and ambiguous as new regulatory regimes are introduced. Regulators are expected to meet three often contradictory goals: (1) strictly enforcing the law and improving compliance; (2) reducing regulatees’ administrative burden; and (3) safeguarding public interests. These developments not only introduce new challenges for frontline inspectors, but also have repercussions for the way frontline inspectors are managed. Next to the traditional hierarchical line manager, inspectors nowadays face “multiple middles” (cf Oldenhof, 2015) as new organizational actors with coordinating roles emerge or gain power. For example, analysts increasingly influence which kind of regulatees inspectors inspect. At the same time, if inspectors are expected to be responsive in their regulatory styles (Ayres & Braithwaite, 1992), they need discretion (Lipsky, 1980). So, a critical question seems to be how inspectorates (can) get their frontline inspectors to work in the manner that the inspectorate wants them to. However, the governance of frontline inspectors is an understudied topic (Pires, 2009). This is surprising, given the central role of frontline inspectors in meeting the current challenges. There is hardly any literature that specifically addresses the manager-inspector relationship let alone the influence hereon of multiple middles. Thus the research question is: What are the consequences of the emergence of a multiple middle for the governance of frontline inspectors? Given limited theory and evidence, we conduct an inductive, multiple-case study in three Dutch inspectorates. Ayres, I., William, K., & Braithwaite, J. (1992). Responsive Regulation : Transcending the Deregulation Debate. New York: Oxford University Press. Lipsky. M. (1980). Street-Level Bureaucracy. Dilemmas of the Individual in Public Services. New York: Russell Sage. Oldenhof, L. E. (2015). The Multiple Middle: Managing in Healthcare. Dissertation Erasmus University. Rotterdam: Optima Grafische Communicatie. Pires, R.R.C. (2009). Flexible Bureaucracies: Discretion, Creativity, and Accountability in Labor Market Regulation and Public Sector Management. Massachusetts : Massachusetts Institute of Technology.

The (ir)rationality of regulatory decision-making: the need for a theoretical framework with multiple conceptual lenses.

ABSTRACT. Our paper stresses the importance of multiple theoretical decision-making perspectives to analyse the practice of regulatory enforcement decisions. Although most regulation theories assume that enforcement decision-making is logical and rational, there is ample empirical research questioning the validity of that assertion (Black, 1997; Hawkins, 2002). Regulatory inspectors - regulators - are expected to judge similarly in similar cases but research shows that is often not the case. It is as yet unclear what determines the outcome of the decision-making process. The assumption of rationality underlying the dominant responsive regulatory theory fails to fully explain the work of regulators, and more specifically their enforcement decisions.
Using multiple conceptual lenses derived from decision-making theory, we distinguish rational, institutional, power-related and personal factors (Allison, 1971; Eisenhardt & Zbaracki, 1992). Our review of empirical research on regulators' decision-making suggests the presence of several factors reflecting how these lenses improve understanding regulatory enforcement decision-making. The aim of this paper is to construe a theoretical framework based on decision and regulatory literature and empirical research which supports our future regulators' enforcement decision-making research. The central question in this paper is: how do regulators decide on enforcement interventions in case of rule violations and what are relevant influencing factors?
Our framework aims to reveal when rational considerations prevail, when standard operating procedures are leading, when power-play is decisive and under which circumstances personal characteristics surface. This study contributes to regulation theory a more systematic understanding of the different conceptual perspectives that are simultaneously present in regulatory decision-making processes. Since regulators' decision-making is at the core of regulation agencies' impact on society it is important to understand what actually determines which regulatory decisions are made.
Allison,G. (1971). Essence of decision-making.
Black,J. (1997). Institutionalist approaches to regulatory decision-making.
Eisenhardt,K.M. & M.J.Zbaracki (1992). Strategic decision-making.
Hawkins,K. (2002). Law as last resort: Prosecution decision-making in a regulatory agency.

11:00-12:30 Session 2E: Private Actors' Involvement in Executive Rule-Making and the Challenges to the Rule of Law (I)

Chair & Discussant: Carlo Colombo

Location: Cz 118
WADA as a (private?) actor executive rule making in Belgium
SPEAKER: Cedric Jenart

ABSTRACT. On the 9th of November 2015, an independent commission of WADA shocked the world of professional athletics by calling for the suspension of numerous Russians until “the collective and inexplicable laissezfaire policy” regarding doping was reversed. Even though this report was merely advisory, it triggered immediate reactions on the legal authority of WADA.

This contribution addresses two related research questions:

1) To what extent is WADA a private actor? WADA, although established as an (independent) international agency and partly funded by governments, prides itself in being a Swiss non-profit foundation. It is constituted under the Swiss Civil Code and has its registered office in Lausanne, Switzerland.

2) Case study: What is the effect of WADA on executive rule making in the Belgian legal order? The Flemish Antidoping-Decree establishes that all normative acts have to be interpreted in accordance with the WADA code and that all secondary norms must be in compliance with that code. This is a dynamic referral. If WADA changes its code, that will immediately reverberate into the Flemish legal order. The Belgian Council of State recently expressed concerns about this technique. Occasional reference will be made to the approach of neighboring countries such as the Netherlands.

The role of private actors in global pharmaceutical regulation: industry representatives in the International Conference on Technical Harmonization (ICH)
SPEAKER: Sabrina Wirtz

ABSTRACT. The International Council for Harmonisation of Technical Requirements for the Registration of Pharmaceuticals for Human Use (ICH) has established itself as the prime source of global standards in the field of pharmaceuticals regulation. It is a hybrid public-private partnership consisting of representatives of regulatory authorities as well as representatives of pharmaceutical industry associations. While the integration of private actors in regulatory bodies is often motivated by the know-how provided especially by the regulated industry, it raises concerns with regard to the legitimacy of the standards set.

First, this contribution will analyse the role of the private actors in the ICH scrutinizing its membership, funding and institutional structure. Moreover, it will closely examine the influence of the pharmaceutical industry associations on the decision-making in the process of drafting ICH guidelines.

In a second step the contribution will highlight the challenges that can arise out of the involvement of the regulated industry in the standard-setting of the ICH, for a the EU as an implementing regulatory system which places a great emphasis on the independence of its administration. 

Consolidating Regulatory Authority through Cooperation - A Case Study of the ISO 26000 Standard Setting Process

ABSTRACT. The interaction of transnational orders and governance schemes involving a plurality of different actor groups has recently received increasing attention from political scientist, sociologists and legal scholars. Focal point of the proposed paper will be a case study examining the ISO 26000 process. After deciding to create the 26000 standard for social responsibility the International Organization for Standardization (ISO) concluded cooperation agreements with the ILO, the OECD and the UN Global Compact. It furthermore included state actors, as well as labor union and NGO representatives, etc.

The paper will try to understand how cooperation was arranged in this particular example, what impact the general structure of the regulatory realm played and what motives led to cooperation. To this end, it will look at two levels of rationales for cooperation. First, it is argued that all organizations involved cooperated in order to exchange ‘regulatory resources’ and thereby increase their own regulatory authority. This section will focus on legitimacy, expertise and power in particular as the main components of exchange.

The second part will examine the broader network level of which the cooperative relations analyzed are a component. Here, it is claimed that the international organizations particularly aimed to achieve constitutionalisation effects through agglomeration and consolidation of existing regulatory frameworks. Their goal was to develop and spread a consistent message to the business community which would then lead to path dependency effects.

Judicial Accountability in the Standardization Process: sacrificing the rule of law on the altar of effectiveness?

ABSTRACT. The 2003 Interinstitutional Agreement on Better Law-Making between the EP, Council and Commission provides for the ‘need to use, in suitable cases or where the Treaty does not specifically require the use of a legal instrument, alternative regulation mechanisms’. The importance of alternative regulation mechanisms has been powerfully reaffirmed in the recent Better Regulation Agenda, which refers to the need to use, apart from regulatory instruments, ‘well-designed non-regulatory means’. Such mechanisms include co- and self-regulation, i.e. administrative processes which involve the participation of private parties, such as the social partners or the standardization bodies, as decision-makers. While the involvement of private parties in EU administrative governance has the clear advantage of delivering policies which are based on the expertise of the regulatees themselves, private-party rule-making raises significant concerns in terms of its legitimacy. In particular, not only can the involvement of private parties in EU decision-making be questioned from the perspective of compliance with the Meroni doctrine, but also from that of the existence of an adequate set of control mechanisms to review the legality of the actions taken by private parties as administrative rule-makers. This paper aims at identifying the gaps of judicial protection which exist in co-regulation mechanisms, by using the case study of the standardization process. After an introduction to the issue of co- and self-regulation and the rationale for the involvement of private parties in EU administrative governance, the mechanisms of judicial supervision will be reviewed in order to establish whether the current level of judicial control complies with the principle of effective judicial protection. Finally, it will be considered whether participation and representation mechanisms could be seen as adequate alternatives to a possible lack of effective judicial control.

11:00-12:30 Session 2F: Regulating Transnational Supply Chains

Chair: Phillip Paiement

Location: Cz 119
Governing Transnational Agricultural Value Chains in a World Where Public and Private Distinctions Do Not Matter: Inequalities and Opportunities

ABSTRACT. Agriculture has become increasingly grown for export and transported through transnational agricultural supply chains (TASCs) that transcend the political borders of multiple nation states. To accommodate this process, the regulation of the agri-food system has shifted from public regulation at the national level to become increasingly privatized and regulated through transnational private regulation (TPR) enacted primarily by food retailers. TPR operates primarily through the codification of regulation into private standards that are unilaterally enforced along the supply chain and govern over important global public goods including the environment, core labour standards, and food safety.

These changes have unsurprisingly presented difficult moral and social issues that remain unresolved from a governance perspective. For instance, the structure of TASCs often perpetuate global North / South and retailer / smallholder inequality. There is also often a conflict of interest that for-profit retailers have in effectively regulating over labour standards or the environment.

Present within these examples are complicated moral and social issues that relate to equity, self-determination, and accountability in a world where governance is increasingly transnational in nature. An intuitive response to address these issues has been to re-inject a degree of public authority, more attuned to these types of problems, back into TPR. The focus for many has been to theorize on how best to accomplish this goal when public authority remains largely confined to its national boundaries.

Yet how important are these distinctions between public and private authority? This paper seeks to question the nature of the significance of a difference between public and private authority, to complicate our understanding of what makes “public authority,” public and to seriously scrutinize the traditional depiction of public authority as an effective countervailing entity able to humanize private authority and address the moral and social issues that currently characterize transnational agricultural supply chains.

Agenda Setting, Naming and Shaming in Global Supply Chains
SPEAKER: unknown

ABSTRACT. Multi-national companies that operate at the end of long supply chains are expected to police those supply chains for market failures, such as unfair or unsafe labour practices. These companies employ auditors, private regulators, as well as their own social responsibility programs. A great deal of research has helped to explain the role of government institutions and other stakeholders in influencing company creation and compliance with such soft regulations. Some research has explored the role of NGO pressure, naming and shaming and agenda setting in influencing the behaviour of corporations, but there has been little systematic analysis of how companies are influenced by NGO and media pressure over time. Large companies care about the bottom line, but they also care about their reputation and thus ought to respond and act to allegations of labour violations in their supply chains. We examine a sample of large corporations in the food, apparel and electronics industries to see how they react to labour problems in their supply chains and how many resources they invest in new self-regulatory programs. We also examine the extent to which companies within particular industries follow each other and whether there is a particular industry leader in terms of socially responsible behaviour. To conduct this research, we content analyse news articles from a sample of newspapers for the years 2005-2015. We then examine firm press releases and sustainability statements to gauge proposed changes in firm behaviour. This paper has the potential to add to our understanding not only of global business regulation and supply chain dynamics, but also policy dynamics and agenda setting in the global economy. It also has the potential to tell us when firms fear for their reputations and change their internal policies accordingly.

Digging for Attention: Regulation and Accountability of the Diamond Industry
SPEAKER: unknown

ABSTRACT. Private actors, such as companies or civil society organizations, have become influential in transnational governance, and participate in many regulatory regimes world-wide. Since they take over responsibilities in rule-making, their accountability – especially to the wider public – is a critical aspect of their authority. However, formal institutions and procedures, that could be beneficial in this respect, are rare or even absent in this context, leading to the question whether informal accountability mechanisms exist. In our paper, we analyze informal accountability related to the Kimberley Process Certification Scheme, which regulates the global diamond trade. Because of the global scope and cartel-like structure of this business, formal accountability to the wider public is particularly weak therein. We are especially interested in the collaboration of different actors to jointly establish accountability. We analyze for that purpose the publications and behavior of various companies and civil society organizations, as well as the public debate on that issue. This allows us to portray informal accountability mechanisms in the regulation of the diamond industry, as well as to determine the motivations of actors to jointly engage into account-holding.

The Santiago Principles and IFSWF – The Emergence of Transnational Economic Governance for State-Owned Commercial Actors
SPEAKER: Dini Sejko

ABSTRACT. In response to a multitude of economic, political, legal issues and undisguised protectionism caused by the governance problems related to the increasing outbound investments of sovereign wealth funds (SWF) the International Monetary Forum (IMF) took the lead and interacting with major SWFs, the G20, the World Bank, the WTO and many host countries drafted the Santiago Principles (the Principles) as voluntary guiding principles for the activities of SWFs. Subsequently, the International Forum of Sovereign Wealth Funds (IFSWF) was established under the aegis of the IMF to pursue and maintain free flows of SWFs’ cross-border investments. In seven years, the IFSWF has become an independent body with a broader participation of SWFs, an internal structure and strategic goals to reach by 2018. This paper provides an overview of the evolution of the Principles and the establishment of the IFSWF. More precisely the paper looks at the emergence of a specific transnational economic governance regime for state-owned commercial actors. It sheds light on the impact of market pressures in the voluntary compliance of SWFs with the Principles. It also demonstrates that the increasing number of SWFs joining the IFSWF is having a positive impact on the legitimacy of the institution and is improving its network effect. The changes of the internal structure of the IFSWF and the proactive role that it has assumed in enhancing the effectiveness of the Principles are transforming it from a informal and voluntary group into a new international financial authority for sovereign wealth funds (SWFs) that operates effectively without the need of coercive mechanisms and interprets the Principles, oversees their implementation, provides guidance to states to incorporate them when establishing new SWFs.

11:00-12:30 Session 2G: Ex-post evaluation in the European Union

Chair: Stijn van Voorst & Ellen Mastenbroek

Location: Cz 122
Policy Evaluation in the EU: Advancing the Governance View

ABSTRACT. Given pressures of smart regulation, the perceived need to improve policies and austerity, policy evaluation is en vogue in the EU. While much academic discussion has centered on evaluation methodology, we know little about the practices and governance of evaluation. Earlier work has focused on the politics of evaluation (Bovens et al. 2006), and on the distribution and nature of evaluation in the EU (Huitema et al. 2011, Hildén et al. 2014; Mastenbroek et al. 2015). But it has not yet sufficiently conceptualized evaluation in broader governance terms. There is thus an urgent need to build a wider governance theory-driven and empirically-informed knowledge base of evaluation activities; understand how evaluation fits into larger governance systems; and explore how to ‘govern’ evaluation itself.

In order to address these gaps, this paper focuses on the case of climate policy evaluation in the EU. First, it reviews the empirical distribution of climate policy evaluation in the EU, focusing on actors and approaches. Second, it draws on polycentric governance theory to highlight a novel approach to EU climate governance (Rayner & Jordan, 2013; Jordan et al. 2015) where evaluation has been insufficiently theorized, and highlights what innovations could fill this gap. The discussion addresses the relationship between learning, scrutinizing, and accountability roles for evaluation. Third, the paper reviews work on ‘evaluation governance’, focusing on formal/informal (Huitema et al. 2011), as well as monocentric/polycentric evaluation. Finally, the paper looks across these three key areas to advance crucial research questions on the ‘governance view’ of evaluation.

If evaluation is the solution, what is the problem?

ABSTRACT. Over the years, there has been a proliferation of initiatives and policy instruments for ex-post policy evaluation, covering expenditure programmes and, more recently, regulatory policies of the European Union. This has led to attempts to further integrate different types of evaluations, especially ex-ante and ex-post evaluations. In 2015 the Commission re-launched its regulatory reform agenda with new guidelines and an ambitious approach to ‘close the policy cycle’ bringing a full range of policy actors onto the scene of regulatory evaluation, such as the stakeholders, the member states and the Regulatory Scrutiny Board. The idea of closing the policy cycle is intuitively attractive, but in practice it raises issues of inter-organizational and inter-institutional conflict and cooperation between the Secretariat General of the Commission, the Directorates General, the member states, the stakeholders and the European Parliament – the EP/Commission dimension matters especially in the context of the negotiation of the new inter-institutional agreement on better regulation and whether the EP can exercise some influence on the Regulatory Scrutiny Board. Thus the terrain of expost evaluation is where power and influence are marked on the ground. Evaluation is a solution to problems of knowledge utilization and rational policy-making, but also a way to define issues of constitutional politics and power.

To evaluate or not to evaluate: the initiation of ex-post legislative evaluations by the European Commission

ABSTRACT. Theoretically there are many reasons for the European Commission to evaluate its legislation, including the desire to improve policy-making and the need to scrutinize implementation by national authorities. While the Commission nowadays has the norm that both spending and non-spending activities should be evaluated regularly, both its own data and existing research show that only a minority of major EU legislation is in fact evaluated. This paper tries to explain this variance in the initiation of ex-post legislative evaluations by applying a rational and political model of evaluation. It tests these models with the help of two datasets, one containing all major EU laws from 2000-2004 and one containing all ex-post legislative evaluations from the Commission from 2000-2014.

11:00-12:30 Session 2H: How States Account for Failure in Europe (HowSAFE): Risk and the Limits of Governance

Chair: Henry Rothstein

Location: Cz 110
Divided by a Common Language: Risk, the State and the Constitutional Foundations of Regulation

ABSTRACT. Caricatures of national attitudes towards risk are common tropes of populist accounts of regulation. For example, the Germans are said to be precautionary, the French protective, while the Brits like to put a cost on life. Such caricatures tend to be drawn in black and white, with rarely little attempt at explanation beyond sketches of irrational publics egged-on by manipulative NGOs, powerful business interests hiding behind the logics of their economist consorts, or simple trade-protectionism. Nowhere are these caricatures more current than in debates over the extent to which regulation should be ‘risk-based’; pitting those that say the state should ration regulatory interventions according to the probability and consequence of potential harms against those that advise more precautionary and less discriminatory approaches.

This paper argues, however, that these debates over risk and regulation are not simply clashes of political preference but reflect much deeper differences in the way that risk is conceived according to the varied constitutional foundations of regulatory interventions across national polities. For example, in the UK tradition, in the absence of a written constitution, regulatory interventions are constrained only by common law and legislative mandate provided by parliament. In that context, the concept of risk serves as an ideological principle of administrative constraint, limiting regulatory interventions to those justified according to the logics of probability and consequence. In Germany, by contrast, regulatory interventions are limited by constitutionally enshrined defensive rights of individuals and businesses against the state. In that context, the concept of risk, and various other carefully defined categories of threat, serve to define legal thresholds that enable regulatory action. Drawing on examples from the UK, Germany, France, Netherlands and US, this paper turns old debates about risk, security and precaution upside-down by showing how risk ideas reflect different national conceits about the state and regulation.

Where's the risk? Differing interpretations of risk in food safety inspections across the EU

ABSTRACT. In 2000, following several high profile scandals related to food safety, the European Commission set out to reform food safety regulation and governance. In the years that followed, a series of regulations were passed, later bundled together with existing directives in what came to be known as the Hygiene Package. Throughout these texts, references to risk are omnipresent as a guiding principle for a more rigorous elaboration and implementation of food safety rules. For instance, EC Regulation 882/2004 requires that “Member States shall ensure that official controls are carried out regularly, on a risk basis and with appropriate frequency”.

As most countries comply with this obligation, we should expect that inspections across countries resemble each other, or at the least demonstrate some form of convergence in the way they are organized and carried out. Yet, this is not the case. Comparing food safety inspections in 4 member states – France, the UK, the NL and Germany – we found that methods used to establish inspection priorities and frequencies, although universally adopting the language of risk, vary greatly. This could suggest that risk carries different meanings across the 4 countries. More importantly, the way inspectors understand and apply these methods shows even greater diversity, in particular as to what “risk gets attached to”. This suggests that the differences could be more deeply rooted in state traditions. In this paper, therefore, we will examine how differing interpretations of food safety risk can be understood in light of how the state, and its agents, understand their regulatory responsibilities, and in parallel that of food business operators, in terms of protecting consumers against food-borne illnesses.

Making space for failure? Rationalizing risk-based flood management in Europe

ABSTRACT. With flood losses rising and climate change projected to increase them, flooding is increasingly framed as a risk to be accepted and managed, rather than something that can be completely prevented through engineering flood defences. Indeed, many now speak of a ‘paradigm shift’ from flood control to flood risk management (FRM). This paper compares the institutional factors shaping whether and how risk ideas and policy instruments are being used to qualify and limit the formal goals of FRM in England, France, the Netherlands, and Germany. Combining desk-based policy document analysis with an extensive programme of in-depth interviews in all four countries, we find the uptake of risk-based approaches to FRM greatest in England where accountability pressures are high and their use unrestricted by absolute legal duties of protection. In France and Germany, accountability pressures are lower so there is less incentive to qualify policy goals, and the use of risk-based policy instruments is more uneven. In the Netherlands, the need for risk to prioritise implementation and qualify protections is tempered by both constitutional duties and ingrained public expectations of ‘dry feet’. As well as these national differences in institutional tolerance for adverse outcomes and risk, the case of FRM also highlights important differences in national styles of risk management and in preferences for ex ante preventive measures to reduce the probability of flooding as opposed to policy measures designed to reduce its consequences through exposure reduction and ex post compensation. Our findings challenge universalist accounts of risk as a uniquely rational basis for governance. Risk-based approaches embody particular understandings of the state and its obligations, which can conflict with embedded norms of governance and with entrenched societal expectations about how adverse outcomes should be managed, and, indeed, about the very meaning of governance ‘failure’ and ‘success’.

From risk-based regulation to co-regulation:

ABSTRACT. From the 1980s, healthcare quality regulation has been introduced in many OECD countries, with a common trend towards the development of stricter quality standards and the use of outcome-based indicators. Despite some degree of convergence, however, there is still substantial variation in the way that different states regulate risks to health care quality. For example, the UK has built a centralised statistical surveillance system to detect in real time which organisations pose the greatest risk to care quality and to direct regulatory resources accordingly. Germany has devised a system that relies on oversight by the medical professions. Meanwhile France has set national standards but has transferred enforcement activities to local actors who have substantial autonomy on how to assess the riskiest organisations and how to change behaviours. To date, however, there has been little research effort in mapping out and explaining the varied character of the regimes that regulate risks to healthcare quality in different countries. Drawing on extensive qualitative research, this paper starts to fill that gap by comparing regimes in four different national contexts - England, France, Germany and the Netherlands – and analysing the main challenges these regimes face. The paper argues that beyond a common rhetoric of convergence around the concept of risk, quality regulation displays significant national variation in relation to: i) regulatory goals; ii) methods of assessing risks to quality healthcare provision; and iii) enforcement tools used to incentivise better practices. The paper shows how these variations reflect the institutional specificities of healthcare systems in each country and the consequently varied relationships between the state, the insurers and the medical professions. Moreover, this analysis of the different approaches to regulating healthcare quality highlights the limited value of risk ideas in different national contexts.

11:00-12:30 Session 2I: Unsafe at Any Speed? Online Dispute Resolution in E-Consumer Markets

Chair: Vanessa Mak & Paul Verbruggen

Discussant: Arno Lodder

Location: Cz 123
Rough Justice & Effective Redress: From Consumer-Protection Law to Law-Consumer Protection

ABSTRACT. The topic of consumer ODR for e-commerce affects the established legal discourses on ‘consumer rights’, ‘arbitration’, and ‘mediation’, but all three discourses get the thing wrong. Traditional consumer law, especially the EU regime, is far too complex for the majority of e-commerce transactions. Its obsession with substantive rights, information obligations, and sanctions for non-compliance often leads to unjust results for buyers or sellers. Traditional arbitration is far too formal for the majority of online disputes, cross-border enforcement of awards under the 1958 New York Convention is no real option for low value disputes. Traditional mediation with its emphasis on non-legal compromises to relational disputes does neither fit the commercial character of e-commerce transactions, nor does it provide effective redress across borders. As the current debates on the regulation of ODR are very much influenced by these traditional discourses, the EU ODR regime as well as the negotiations at UNCITRAL tackle the wrong issues. The real problem of e-consumers is that they have to pay in advance and, thus, are burdened with the risks of crossborder litigation, if a problem arises. It is suggested, that any successful ODR-regime should aim to shift this burden to the business by providing a kind of money-backguarantee (effective redress). This means that the involvement of payment service providers is crucial. If the effect of ODR is limited to a shift of the risk of litigation, we can relax the substantive standards of decision making. Deciding on equitable standards will suffice, if in approximately 90 per cent of the appropriate cases the risk of litigation is effectively shifted (rough justice). This will make decision making quick and cheap, which is another crucial factor for the success of ODR. In this context the regulation of ODR should focus on the protection of consumers of (quasilegal) dispute resolution services with regard to procedural fairness and transparency, rather than being obsessed with substantive rights.

The correct application of mandatory law in ADR/ODR: can the high expectations set by the ADR Directive be met?
SPEAKER: Marte Knigge

ABSTRACT. The EU Directive on alternative dispute resolution (ADR) and the EU Regulation on consumer ODR stimulate the use of ADR/ODR in consumer disputes. ADR entities established under the said Directive must comply with many requirements, among which the legality requirement laid down in Article 11 paragraph 1 lit. (a). In a nutshell, this provision requires Member States to warrant that ADR rulings binding the consumer do not deviate from mandatory law to his detriment.

The consumer who chooses to submit his dispute to a binding ADR/ODR procedure accredited under the Directive may therefore expect that he receives the protection of mandatory law. But is this expectation justified? It may not always be easy for ADR entities to correctly interpret and apply the law, which is often mandatory by nature in consumer disputes. What are the consequences if an ADR entity breaches mandatory law? And how is compliance with Article 11 being ensured? 

The Law of Consumer Redress in an Evolving Digital Market: Upgrading from Alternative to Online Dispute Resolution
SPEAKER: Pablo Cortés

ABSTRACT. The growth of electronic commerce, increasingly across borders, is impacting on the number of disputes between online consumers and traders. With the aim of increasing trust in the online market place the EU and the UN have responded to the need of promoting online dispute resolution (ODR) mechanisms that are suited for this forum. While the UN (UNCITRAL WG III) is drafting a model procedural law for international low-value claims, the EU has passed legislation (i.e. the ADR Directive 2013/11/EU and the ODR Regulation (EC) 524/2013) to ensure the online availability of nationally certified Alternative Dispute Resolution (ADR) entities to resolve consumer complaints, and it creates an ODR platform that from January 2016 will operate as a hub for submitting consumer complaints. Online traders and online market places must have a link in their websites so that consumers can find the ODR platform –but traders are not actually obliged to participate in ODR, unless required by their national laws or trade associations. Decisions by these certified ADR/ODR entities must respect the mandatory consumer law (principle of legality) and allow consumers to go to court if they prefer to do so (principle of liberty).

This paper critically examines the emerging legal framework for ODR from a dispute system design perspective, and it argues that: i. the new EU ODR infrastructure will only be successful if traders participate, either because they are legally required or because they have strong incentives to do so voluntarily; ii. consumers will only trust certified ODR/ADR entities if the monitoring by the national competent authorities ensure that forum shopping does not hinder the independence of these entities which are often not only chosen, but also paid, by traders; iii. ODR processes should incorporate an effective adjudication tier preceded by consensual techniques that support the early settlement of meritorious claims; iv. effective systems should be put in place to ensure quick and inexpensive extrajudicial compliance of final outcomes; and v. consumer ADR/ODR should be seen not only as a mere dispute resolution tool, but as a comprehensive mechanism that delivers consumer protection – for instance by identifying patterns and market deficiencies that contribute to provide redress to those consumers who did not complain but are entitled to compensation, and by imbedding mechanisms that learn from disputes so that business standards are improved through dispute prevention policies that tackle causes of complaints.

14:00-15:30 Session 3A: Regulating the financial sector

Chair: Tatjana Jovanic

Location: Cz 116
The Making of the Israeli credit rating Regime: Towards a Permissive Regime?

ABSTRACT. Credit-based capitalism, or Financialization, is high on the policy agenda of governments and international economic organizations around the world. Israel is no different in this regard. As part of this process, many countries have seen the advent and growth of financial information markets, as means to promote market competition. Those ranking regimes vary, and differently set the legitimate way for collecting, rating, and trading of personal credit information. They also express the preferences, norms, interests and social, political and economic traditions in those countries. In Israel, since the end of the 90’s, and mostly since 2010, political and bureaucratic state players make efforts to build a permissive financial data regime, similar to the American and Canadian one. This initiative is promoted by a government's bill, currently in discussion in the Parliament. In particular, the law set the building of a wide database, which is larger in scope comparing to any other financial database that is under the government's supervision, including Israel tax authority and the national insurance institute of Israel. This article offers a qualitative analysis of the building and re-building of the financial information markets in Israel, stressing the public issue around the collecting, rating and trading of personal financial information. The effort to promote competition in finance, via the construction of markets in consumer financial information stands at the center of this research analysis. This article discusses why the Israeli governors are taken contrasting paths toward the restructuring of a permissive credit rating regime, similarly to the American and Canadian one? These aspects coming together into welfare analysis, while two issues are coming in particular to mind equality, and privacy.

The never-ending too-big-to-fail story
SPEAKER: Peter Knaack

ABSTRACT. One of the key features of the global financial crisis was the failure of large globally operating banks that had to be bailed out by governments, imposing costs on tax payers. In the wake of the crisis, G20 leaders committed to reforming financial regulation so that no financial institution in the future would be too big to fail. Six years later, reform progress is mixed. Global regulatory networks quickly reached consensus on which banks count as systemically important and on policies to enhance the resilience of these banks. But G20 members have failed to establish credible cross-border cooperation agreements for winding down a failing bank. The division between these two policy initiatives is not random. The successful elements of the ending too-big-to-fail reform package were developed by the Basel Committee, highlighting the effectiveness of government networks. All reform policies connected to bank resolution in contrast failed to reach completion because national legislators did not take action to remove obstacles in existing legislation. Reform is further undermined by the unwillingness of legislators to provide regulators with a sufficient mandate to engage in cross-border cooperation. The paper concludes by arguing that legislative recalcitrance represents the biggest obstacle to global financial reform.

Vulnerable borrowers and risky decisions: understanding the discourses of risk and vulnerability in the regulation of payday lending in anglo-American financial systems

ABSTRACT. As consumer debt has expanded over the last decade, so has the market for fringe financial services, such as payday loans, in many states. Unsurprisingly, over the last five years, significant regulatory changes have been proposed and/or adopted around high-cost, short-term credit, particularly payday lending. Given this relative newness, it is not surprising that analysis of the development and implications of these regulatory initiatives has only recently begun to emerge. Much of the scholarly focus on financial regulation, post-crisis, has looked at other sectors with many studies highlighting the growth of risk regulation techniques and the discourses of risk - either in the context of systemic risk or the implications of microprudential risks for growth and stability. However, this paper will assert that in the regulation of payday and related forms of lending the language and performance of risk has been intricately connected to a second set of discourses around borrower vulnerability and protection. By examining governance initiatives in Canada, Australia, the United Kingdom and the United States since 2010 using a discourse analysis, it will elaborate how these two discourses interact and how they are transformed into regulations and regulatory practices. Finally, it will highlight how the articulation and enactment of these regulatory structures constructs, at least in part, the identities and agency of the regulator, the lender, and the consumer.

Financial Stability Committees and Regulatory Governance of Financial Policy: The case of Turkey
SPEAKER: Mustafa Yagci

ABSTRACT. Establishment of Financial Stability Committees (FSC) by national governments following the Global Financial Crisis offers an opportunity to analyze the institutional and financial policy design processes that involves coordination and cooperation between regulatory agencies, central banks and ministries in different settings. This research focuses on the case of a developing country, Turkey, which prioritizes financial stability policy in economic policy making because of several national and international factors: history of recurrent economic and financial crises, dependence and vulnerability to capital outflows because of the enduring current account deficit problem and fluctuations in the value of Turkish lira as a result of quantitative easing policies of the FED and the European Central Bank. This research brings an organizational perspective to analyze the policy formulation and implementation processes within FSC of Turkey and argues that Central Bank of Turkey (CBT) has been the key organization in determining the agenda of the financial stability policy design with its organizational learning capacity. Organizational learning at the CBT was facilitated by organizational features that allowed for experimental policy design and policy evaluations but also the close coordination with the Treasury of Turkey (only political entity within the FSC).

14:00-15:30 Session 3B: Contextual Explorations of Big Data Driven Decision-making and the Challenges of Governance

Chair: Karen Yeung

Location: Cz 008
Data-driven on-line personalised price discrimination
SPEAKER: Chris Townley

ABSTRACT. The aim of this paper is to evaluate the legitimacy (broadly defined to include legality) of on-line personalised pricing, primarily from the perspective of European competition law and policy.

Contemporary European competition law purportedly pursues a consumer welfare goal. Through a discussion of price discrimination (a practice which is specifically outlawed in both Articles 101 (anti-competitive arrangements) and 102 (abuse of dominance) of the EC Treaty, we will discuss the limits of the theoretical limits consumer welfare paradigm, as well as problems with its contemporary application in practice. We argue for greater reliance on assessments of dynamic assessments, inter-personal comparisons and informational problems in evaluating the welfare implications of on-line price discrimination and suggest ways in which this might be effectively accomplished.

We will also consider how an economically informed evaluation of on-line price discrimination coheres with or contradicts popular conceptions of fairness in pricing. Our aim is here is to develop what might be understood as a normative theory of pricing justice, or at least its beginnings, in order to provide an analytical frame for evaluating both on-line price discrimination and price discrimination more generally.

Governing data-intensive approaches to medicine: informed consent
SPEAKER: Eleni Kosta

ABSTRACT. Large amounts of data are continuously produced by widespread internet facilities, wearable sensors, mobile devices, and online sharing platforms. Such (big) databases offer unprecedented opportunities for biomedical research. However, with these promises, also come the challenges for governance: data protection, transparency, accuracy and trustworthiness of data are only some of the open questions for governing bodies. Among these unsolved concerns, issues around informed consent are particularly interesting: on the one hand, it is hard to adequately inform data donors of the different research purposes that their data would be used for, on the other hand, the more specific the consent, the less usable the data.

These issues have recently been under the spotlight of the World Medical Association (WMA) that is currently revising the Declaration of Helsinki in order to adapt the practice of informed consent to these new research methodologies. The WMA working group is developing new ethical and governance guidelines to account for this central principle in the field of medical ethics, adapting it to the evolving context of data-intensive approaches to biomedical research. But is it possible to do so while keeping the very concept of consent and its ethical justification unaltered? Or should we instead take this opportunity to rethink the very concept of informed consent and the reasons why we hold it so dear?

In this paper, after a brief reflection on the ethical and historical groundings of the principle of informed consent, we discuss the ethical and governance challenges that data-intensive approaches in biomedicine pose for the currently accepted practices of informed consent in biomedical research ethics. Based on Manson and O’Neill’s conceptualization of consent as a “communicative transaction” (2007) and on theories of relational autonomy, we reflect on the limits of existing practices and proposals. We conclude by setting some principles that should be taken into account in the governance of these issues.

Harnessing big data to 'better regulate' on-line decision-making
SPEAKER: Andrew Murray

ABSTRACT. Previous regulatory models for the online environment have been designed with a foundation and premise that users are fictional Homo Economicus – beings capable of optimizing all available information into order to make sound decisions. Sometime these decisions will be rational and predictable. However, on other occasions users will make irrational, yet predictable mistakes; other times those errors will be unpredictably irrational.

To overcome these shortcomings in rational economist models, behavioural economists like Daniel Kahneman, Amos Tversky and Richard Thaler and lawyers like Cass Sunstein have advocated using lessons from psychology to help people make better decisions. By deploying 'choice’ architecture to overcome less than rational decisions, Homo Sapiens can be 'nudged' to making better choices.

Building from this foundation, our paper inquires what role big data may play in developing better regulation. For example, can insights from big data help to overcome erroneous assumptions that regulators may make about the way users' rational behave in online environments? What potential is there for harnessing ‘big data’ to provide insights into user behaviour? Can big data be used as an additional tool by lawmakers to improve regulatory settlements?”

14:00-15:30 Session 3C: Regulation and Innovation: Uneasy Bedfellows?

Chair: Nicolo Zingales

Location: Cz 117
Understanding innovation: elaborating a model of innovation that suits legal analysis

ABSTRACT. This paper aims to put together a general theory of innovation that can be used to analyse and assess how law takes innovation into account. It is based on orthodox and heterodox economics, business, sociology (including STS) and technology literature. Innovation has three elements, namely (i) an invention (ii) that is diffused or adopted amongst users and (iii) has a positive impact on society. Each of these three elements is explored in turn. Afterwards, their mutual relationship is also investigated, with particular attention being paid to the complicated relationship between diffusion/adoption and impact (elements (ii) and (iii)). The main classifications made in the various strands of innovation literature are then introduced, including a new distinction between ‘heavy’ and ‘light’ innovation. The paper ends by looking at the dynamics of innovation itself, and suggests that we might be witnessing a shift in innovation, as a result of the spillover of the conceptual architecture of the Internet across a wide swathe of economic and social activity.

Regulatory Disconnect: Finding It and Solving It
SPEAKER: Anna Butenko

ABSTRACT. This paper explores the so-called phenomenon of ‘regulatory disconnection’ (also referred to as ‘pacing problem’). Regulatory disconnection refers to the situation when technologic or market innovations develop much faster or significantly differently compared to the corresponding regulatory framework, and as the result this framework is no longer adequate. Currently the literature on the phenomenon of ‘regulatory disconnection’ remains dispersed and rather theoretical. It is not clear, for example, how to identify regulatory disconnection in practice. At a more normative level, it is still not clear in which particular cases regulatory disconnection is problematic and hence an effort must be made to eliminate it, and in which cases it is not a problem. Another very obvious gap in the relevant academic research concerns the overview and comparison of regulatory options: in other words, the menu of options available to regulators for closing the regulatory disconnect when this is deemed problematic. Whereas the research on the specific options abounds, the authors tend not to take into account the analysis of the benefits and drawbacks of the suggested options focusing exclusively on the positive sides. The authors usually ‘trumpet’ their own suggested option and disregard the availability of alternatives.

Disruptive Innovation and Competition Policy

ABSTRACT. This paper looks at disruptive innovation and competition policy. Disruptive innovation, according to business literature, occurs when an innovative product is brought to a market, such as meets the basic requirements of the lower-end of an established value network and also offers added value outside of that value network. That product wins over consumers and progressively takes over the established market, displacing the existing value network in so doing. By now, disruptive innovation is a frequent entry strategy, and it is usually beneficial for welfare. Competition policy is not well placed to deal with disruptive innovation. Such innovation can hardly be captured with the tools of market definition and market power analysis, which do not account for the competition for the definition of the relevant market that is characteristic of disruptive innovation. In addition, competition authorities experience difficulties in acting quickly enough to deal effectively with attempt to prevent disruptive innovation. However, incumbent firms on the established market can hinder disruptive innovation. The theory of harm is that an incumbent firm with market power seeks to prevent a potential disruptor from another market from executing its strategy, using either (i) anti-competitive practices designed to prevent the creation of an overlap between its innovative product and the established market or (ii) an acquisition with a view to mothball the disruptor and its invention. The paper sets out recommendations to improve the ability of competition policy to deal with the issue.

14:00-15:30 Session 3D: Regulatory enforcement in the EU

Chair: Pieter Zwaan

Location: Cz 118
From regulation to enforcement in the EU policy cycle: a new form of functional spillover?

ABSTRACT. The European Union has acquired enforcement competences in areas where it previously only had regulatory authority. This expansion of competences from one step in the policy cycle to another is a blind spot in the works on spillover. While the increasing enforcement powers of the EU are mentioned, it is in the context of more competences, a deepening, not what type (a furthering, which this paper notices). This paper investigates the nature of this ‘policy cycle spillover’ and addresses the question in how far we have stumbled across a new form of functional spillover. It offers novel data concerning the expansion of EU enforcement competences and arguments for why this development constitutes a new type of functional spillover, i.e., policy cycle spillover.

Enforcing EU state aid rules
SPEAKER: Pieter Zwaan

ABSTRACT. The compliance and enforcement of EU state aid rules has, like other rules of negative integration, received only little attention in the EU compliance literature (see Treib 2014). This paper sheds light on the enforcement of EU state aid rules by the European Commission, by analysing the opening and unfolding of the "formal investigation stage" of the state aid notification procedure. We do so, on the basis of a content analysis of 155 Commission decisions that were taken after going through a formal investigation and were published between 2010-2015. A comparison is made between notified cases that went through the administrative stage of the state aid notification procedure and cases that were opened by the Commission itself. The analysis reveals to what extent the application and enforcement of EU state aid rules should be described as a process of political conflict or mutual adjustment and what motivates the Commission to enter a formal investigation stage.

Regulating Transnational Bribery: Credibility and Clarity Problems of Extraterritorial Enforcement

ABSTRACT. Bonny Island oil, Siemens’ endemic bribes, or FIFA corruption scandal are examples of global corruption schemes that distort international competitive conditions. The problem is that foreign bribery activities are global, while anti-bribery enforcement is national and decentralized. The practice of bribing foreign government officials has been tackled by the United States and some other major economies by extraterritorial anti-bribery enforcement – a broad application and enforcement of national laws to conduct that occurs beyond the borders of a given country. This way of governing global economic challenges is often unilateral rather than multilateral and collaborative, thus being prone to credibility problems because of the opportunistic behavior of the enforcers. What is more, even if some countries decrease the credibility problems by an agreement, they may face clarity problems, meaning difficulties to understand what cooperation means. In the economic governance literature, the effectiveness of institutions such as extraterritoriality is determined by how legal and social institutions cope with the two problems. This paper applies these theories in order to examine the credibility and clarity problems of the international anti-bribery regulatory regime. By doing that, the paper aims to explain why extraterritoriality is or is not an effective institution within the regime. As a case study, the paper will analyze the institutional and organizational structure of the regime based on the OECD Anti-Bribery Convention, and provide examples from the US, UK, and German enforcement practice. I argue that extraterritoriality is a dynamic concept that is effective when used by a small number of major economies in an initial stage of the anti-bribery regulatory framework. However, increasing extraterritorial enforcement is accompanied by substantive and procedural fragmentation that prevents further development of the regime into more cooperative network. The legal solutions of some clarity problems are hardly manageable and may increase credibility problems.

Implementing the EU Ambient Air Quality directive: analysis of differences in the implementation performance of local governments in the Netherlands

ABSTRACT. This paper offers a fresh perspective on implementation of EU Ambient Air quality directive by focusing on the implementation performance of Dutch medium sized municipalities. It moves beyond the current top-down compliance approach of EU implementation research to paint a comprehensive picture of implementation performance based on horizontal comparison across municipalities. A closer examination of practical implementation of this EU directive, that was anticipated to be troublesome in the implementation, reveals a much more nuanced and positive view on implementation of EU directives. Despite of facing initial implementation challenges in 2005 these Dutch municipalities have managed to reduce air pollution in the cities by undertaking several measures. Legalistically, this already qualifies the municipalities as compliant as they all have air quality policy at place which is also what the directives obliges the implementers to do. The EU compliance research has paid very little attention to such cases of compliance, even less so to the fact that compliant practices still exhibit a great variety in implementation performance. At the same time, it has been argued that non-compliance and compliance with EU directives are not characterized by symmetrical causal mechanisms. Therefore such shortage of systematic attention to the compliant cases is surprising as such analysis sheds light on what could be conducive to a ‘good’ implementation performance. This paper addresses this gap by zooming in on the municipalities that comply with the EU legislation but score very differently on the implementation performance of EU Ambient Air quality directive. The analysis of implementation performance was performed using an innovative three-dimensional conceptual framework. The air quality policy plans, their evaluations and interviews with the policy officers informed the analysis. The six municipalities that score the highest and lowest were selected for in-depth examination of causal mechanisms.

14:00-15:30 Session 3E: Private Actors' Involvement in Executive Rule-Making and the Challenges to the Rule of Law (II)

Chair & Discussant: Mariolina Eliantonio

Location: Cz 119
The multiple accountabilities of 'agencified networks': the case of the European Banking Authority

ABSTRACT. Across many policy domains the EU has established regulatory networks, with the aim of smoothing implementation of legislation at the national level. These are often loose, informal groupings, whose processes feature extensive involvement from private actors in providing technical expertise. In recent times, however, the Commission has taken steps to crystallize certain structures into coherent bodies - resulting in several instances of what has been referred to as 'agencified networks' (Levi-Faur, 2011). These new hybrid organizations enjoy clearer mandates and greater resources than their ’network’ forebears; but they often suffer from the same weaknesses in accountability.

This empirical paper examines the European Banking Authority - the body responsible for drafting the technical standards which support the prudential regulation of banks in Europe. This agency typifies the ‘new governance’ approach to regulatory policy-making: a public body as an orchestrator, gathering input from both national regulatory authorities and the private sector. The paper assesses its remit, powers and working practices, before analyzing the mechanisms by which its accountability is ensured. Following Scott (2000), 'accountability' is conceived as operating in several directions; and following May (2007), as existing in several forms. Drawing on a set of interviews with EBA staff and industry practitioners, the paper exposes the tensions and shortcomings which undermine the accountability structures.

Entrusting regulation to standardization bodies and challenges of social and market legitimacy

ABSTRACT. Standardization is the phenomenon of establishing technical norms, agreed upon by private parties in the industry for aligning products and production processes, according to current demand. In the European Union and national states the advancement of standardization is partly a consequence of ‘decentering of regulatory governance’ (Black). This means a shift in the locus of the activity of ‘regulating’ from the state to other locations. The democratic legitimacy of these standards presents a much discussed issue. However, if regulation is outsourced to standardization bodies by public authorities, also the social and market legitimacy of these standards presents a serious issue.

Firstly, to take part in a standardization procedure, in general a sum of money has to be paid. One of the relevant questions in this context is how the input of all stakeholders should be made possible. The current standardization package (strategic vision & legal framework) has recently been revised by means of Regulation 1025/2012 (OJ 2012, L 316/12). Does this result in improvements regarding participation of consumers, environmental and labor organizations, and small/medium enterprises?

Secondly, standardization can give rise to restrictive effects on competition. Certain companies can be excluded from access to the standard-setting process or the standard. Standardization could result in reduction in price competition and foreclosure of innovative technologies (OJEU 2011 C11/57). What is the true meaning of European competition law and the rules governing the free movement of goods in relation to standardization? As a rule, market participants should pay for consulting standards. Are there any reasons why this may be reasonable, even in cases standards are a consequence of outsourcing regulation by public authorities? Is it possible payments come into conflict with articles 34 and 36 TFEU?

Hybrid Forms of Local Governance and the Transformation of Administrative Law
SPEAKER: Carlo Colombo

ABSTRACT. In many policy areas at urban and regional level, new ways of taking decisions are developing. I name them ‘hybrids’ to emphasize the combination of public/private actors, as well as the interaction between different instruments and structures they embody. While these new forms of interaction have been triggered by globalization, privatization, and the need to gain from specialization and citizens’ representation, they come at a price. Contrary to the global and European levels, hybrid governance in regional and urban areas is embedded in a sub-layer of public rules and values. Therefore, since hybrid forms of governance allow private powers and new decision-making approaches to expand beyond their heartland, there is a need to find ways to ensure that such core public principles are protected. All these issues come down to one question: what is the role of administrative law in ensuring that hybrid forms of governance do not endanger traditional values of public decision-making? The paper explores empirically possible responses to this question by evaluating Brainport Eindhoven as illustrative case study of this interaction. It argues that, to cope with these institutional innovations, the classic administrative law scholarship shall go beyond the existing categories of public-private divide and judicial redress, to explore other mechanisms that ensure that hybrid forms of governance respect minimum guarantees to pursue the protection of public interests.

14:00-15:30 Session 3F: Harmonization in multi-level governance

Chair: Paul de Hert

Location: Cz 122
EU Law between Enforcing Harmonization and Room for Diversity
SPEAKER: Tetty Havinga

ABSTRACT. Over the course of time the European Union has increased its powers considerably. New competences have been added and new policy domains included. In several domains European directives are being replaced by regulations. This can be interpreted as a strengthening of European law because for regulations to become effective no transposition into national legislation by the member states is needed as is the case with directives. It is often assumed that EU regulations are straightforwardly implemented in the Member States. However, despite the strong common legal base quite often differences between member states remain to exist. Actors do always have some autonomy in their interpretation and application of regulations. This applies not only to the EU Member States, but also to regulatory agencies, decentralized government, street level bureaucrats and regulated entities. Different governance networks in a particular regulatory domain produce different practices. Member states deal with their obligations in different ways depending on the local situation. Relevant factors include the historical development of regulations, the organizational structure, the regulatory culture and traditions, economic interests, the distribution of political power and the court system. My empirical case is a comparative study on EU food hygiene regulations (and hopefully a case from another regulatory field). The paper shows that it is important to look beyond transposition or direct effect and to investigate the implementation of regulations on the ground.

Management by good intentions and best wishes – on sustainability goals, economics and transport investment planning in Sweden
SPEAKER: Lena Nerhagen

ABSTRACT. This paper discusses how the Swedish policy-making culture, and the ambitious environmental and traffic safety goals, influence transport planning. Our point of reference for evaluating the system is the work with good regulatory policy advocated by the OECD and used by EU. This in turn is based on the use of economic analysis including cost-benefit analysis. The point of departure for the analysis is the question of tourism development with environmentally sustainable travel .The Swedish Government, despite a possible value conflict with the ambitious Swedish climate mitigation objectives, has stated that tourism development is an important basis for economic growth, not the least in rural areas. We analyze to what extent this objective has been accounted for in the development of the most recent transport investment plan. The main finding is that the Government and the parliament lacks a strategic “Whole-of-Government approach” to sustainable transport development. There are many principles and objectives with good intentions established at the national level that are incompatible in practice. The conflicts that follow are handed down to lower government levels to solve with best wishes. From an efficiency point of view, the problem with this type of management is the “tragedy of the commons”. In recent years the Vision Zero has been a strong motive for improvements of the road system. Seen from an environmental perspective the unwanted consequence is that it makes roads faster and safer thereby becoming a more attractive alternative compared to other travel modes. Seen from a regional development and tourism perspective, this may have diverted resources away from investments that to a greater extent would have benefited “rural” areas.  

The regionalisation of organic regulation

ABSTRACT. The growing demand for organic produce has augmented the international trade for organic products. At the same time, the label ‘organic’ has increasingly become legally protected as standards specify the exact requirements for organic production and labelling. While private labels were the first to proliferate, the public domain has been catching up as there are currently 82 countries with organic standards (Huber, Schmid, & Mannigel, 2015). The plethora of available standards, labels, and certifications (e.g. Castka & Corbett, 2014; Janssen & Hamm, 2011) has led to a complex and fragmented system of regulations. The duplication and overlaps between the systems has created compliance problems and barriers to trade, above all for small-scale producers in developing countries (Courville, 2006). The absence of full harmonisation on organic standards induced governments, traders, and certification institutions to develop complex pathways to facilitate trade. These include compliance, equivalence, and mutual recognition based mechanisms (Winickoff & Klein, 2011). Another pathway that has been recognised as overcoming problems of regulatory complexity is regionalisation. The most notable example has been the European Unions common framework for organic production, which was able integrate the framework in its central legislative structure. However, there have been several other lesser known agreements, such as EAOPS, AROS, and POS. The newly adopted ASEAN Standard for Organic Agriculture (ASOA) could have a significant influence on the region of Asia (Wai, 2015), particularly since regionalisation enables developing countries to deal with complex regulatory realities, with the aim to create their own regional plurilateral trade agreements and arrangements for harmonization and recognition (Bowen & Hoffman, 2015).This paper will evaluate in how far the promise of regionalisation can make the regulatory field of organic more cohesive and effective for regional and international trade. It will provide a comparative analysis of regional attempts thus far, identifying drivers for regionalisation, and defining causes for both successful and unsuccessful uptake.

The policy against illegal logging in Germany – Implementation “gap” or success?
SPEAKER: Sina Leipold

ABSTRACT. Illegal logging is an environmental issue that has received a lot of attention in the recent decade. It has been connected to important environmental and economic challenges such as tropical deforestation, sustainable natural resource management and free trade. One policy tackling this problem is the European Timber Regulation (EUTR). In order to take effect, this policy needs to be implemented in the European member states. Its implementation in Germany recently attracted a lot of media attention because it has been portrayed as being too “weak” and, hence, ineffective. Hence, it is seen as not being implemented in a way that meets the EUTR’s overall aims. This problem has been described in scholarly literature as implementation gap. Jordan (1998) prominently argued that many European environmental policies suffer from such a gap. Based on 22 semi-structured interviews with key stakeholders in Germany, more than 100 documents, and participant observation data, this article analyzes the implementation of the EUTR in Germany. It argues that the implementation of the EUTR in Germany can hardly be described as implementation gap. Instead, implementation in Germany follows a certain approach that is to some extent prescribed by the specific policy design of the EUTR. In order to develop this argument, this study provides an analysis of the making and implementation of the German law implementing the EUTR. It is concerned not only with the transposition of the European legislation into national law but also with its enactment and enforcement of legal provisions as well as compliance. Based on this analysis, the paper concludes with a critical discussion on how and to what extent policies relying on the principle of procedural transparency, like the EUTR, may contribute to accountable, legitimate and effective forest governance worldwide.

14:00-15:30 Session 3G: Evidence-based policy-making in the EU: risk regulation and beyond

Chair: Stijn Smismans

Location: Cz 109
The Use of Scientific Evidence in the EU Regulation on Pesticides

ABSTRACT. In 2009 the EU adopted Regulation 1107 ‘concerning the placing of plant protection products on the market’ and introduced relevant changes in the criteria for the authorization of active substances to be utilized in the production of pesticides. A major modification is on the type of evidence to be legitimately used in hazard and risk assessment procedures. Whereas the repealed Directive 414/1991 required applicants to submit results from a series of standardized laboratory testing, Regulation 1107/2009 adds the requirement to deliver an assessment of evidence on the basis of available academic peer-reviewed and open literature. This paper contributes to the debate on ‘usable knowledge’ in regulation, analyzing the challenges of this change, which turned out problematic for several reasons, such as the wider range of disciplines it involves, selection of peer reviewed papers, and deviation from standard testing practices according to OECD criteria.

Innovation and Regulatory Evidence: lessons from EU nanotechnology policy

ABSTRACT. Providing sound evidence for the regulation of innovation is challenging given the strong uncertainty it involves. The regulatory literature has focused on innovation mainly in terms of risk, scientific uncertainty and risk assessment. However, innovation can be approached both from the perspective of risk regulation and from the perspective of innovation policy. Both contribute to building up an evidence basis for policy-making. Yet, both in the academic literature and in the reality of policy-making there appears to be a gap between those dealing with the risks and those dealing with the innovation-stimulating dimensions. This paper investigates the different tools through which the EU has built up expertise in relation to nanotechnology (risk assessment, impact assessment, responsible research and innovation) analysing their interactions, or the lack thereof.

Technical expertise in EU employment policy: The role and impact of employment indicators as part of the European Semester
SPEAKER: Rachel Minto

ABSTRACT. This paper explores the role and impact of technical expertise in EU employment policy. In particular it focuses on two recently introduced instruments: firstly, the Joint Assessment Framework (JAF) and the accompanying Employment Performance Monitor (EPM); and secondly the Scoreboard of key employment and social indicators (“the Scoreboard”). The JAF and the EPM were introduced in 2011 as part of the European semester system, with the aim of providing a transparent evidence base for decision-making in line with the Employment Guidelines. Based on documentary analysis and semi-structured interviews with European policy actors, this paper sheds light on how these tools are incorporated into decision-making in the European semester, exploring the role and impact of more technical expertise in EU employment policy and questioning its interaction with and contribution to the political decision-making process.

Cost-benefit analysis in policy making of EU competition law

ABSTRACT. Reliance on cost-benefit analysis (CBA) in EU policy-making has become a regulatory requirement to be applied to major EU legislation. The paper investigates the use of CBA in policy making of EU competition law. To this end, first, an outline of the general debate of CBA will be given, with particular reference to the 2015 Better Regulation Guidelines. The application of CBA in competition policy making will be examined through analysis of 31 Impact Assessment that have been produced in competition policy. The paper draws a distinction between areas of competition policy where CBA are more appropriate to be used and other areas where this is less the case drawing on criticism formulated in relation to CBA in the literature, such as commodification of ethical values, satisfaction of stable preferences and their measurement based on willingness to pay, assumption of full information, and indifference to distributional issues.

14:00-15:30 Session 3H: The Regulation and Governance of the Sharing Economy

Chair: Sofia Ranchordas

Location: Cz 110
Sharing in the City
SPEAKER: Michele Finck

ABSTRACT. Our paper will examine the role of cities and local governments as key regulators of emergent sharing economy practices. In this paper, we argue that sharing economy practices (for example, sharing food and childcare) are historically inherent to cities since they have been urban centers of close collaboration between inhabitants since the Middle Ages. In the age of the sharing economy, the attempt to reintroduce these practices through digital platformsis however at odds with existing local regulations (for example, on zoning or transportation). In this paper, we argue that a number of these regulations should be rethought since they were developed in the late 19th and 20th centuries to address the concerns of special interest groups, rather than the public interest or the interest of city inhabitants. In addition, some of these regulations appear to be excessively precautious and outdated (for example, taxi-drivers certification tests for example in London) in an era of free flow of information and sophisticated peer-review and reputational mechanisms. Our paper examines how a number of major cities in the Member States of the European Union and the United States of America have become the first-movers in the regulation of the sharing economy practices within their territory and are currently responding in different ways to similar regulatory problems. However, at a time when half Berlin, Barcelona or Athens is up for rent on multiple sharing economy platforms, negative court decisions, protests, and complaints about the negative externalities of these practices (for example, noisy Airbnb guests in residential areas or the expansion of the black economy) are prompting cities and local governments to rethink traditional operational licenses, zoning and transportation regulations, and their tax collection systems.

Sharing Economy, Regulation and Competition Matters in the EU

ABSTRACT. The emergence of the sharing economy is revolutionizing many industries as well as their regulation. Taking the transportation sector as an illustrative example, we show, on the one hand, that new information technologies and social innovations enable to reduce or even eliminate market failures that were arguably used to justify the enactment of certain legal rules in the first place. In light of the current state of technology such rules restrict economic freedom in these sectors, thereby making these restrictions disproportionate and, therefore, unconstitutional. On the other hand, the economy of the long tail allowed by the use of digital networks changes the position and power dynamics of the different actors operating in the market, thus forcing public regulation to change some rules in order to achieve both fair competition and a functional offer of services. In this paper, we analyze the position of European Union and its Member States on the issue and how the logic of competition within a single market (and not a mere “common market”) will produce a set of guidelines deduced from European competition principles.

Regulating Peer-to-Peer Rentals and Services: The Canadian Experience
SPEAKER: Derek McKee

ABSTRACT. Peer-to-peer marketplaces for rentals and services such as Uber and Airbnb—the so-called “sharing economy”—have created challenges for regulators in Canada as in other countries around the world. This paper describes efforts by Canadian provincial and municipal governments to devise appropriate forms of regulation for these economic activities. It shows that regulators have generally oscillated between two approaches: the repressive application of existing regulatory models (notably, those applied to the taxi and hotel industries) and hands-off approaches that effectively rely on platforms to self-regulate. This paper argues that neither of these approaches is appropriate. Instead, it suggests that better forms of regulation for “sharing economy” platforms can be deduced from their dual nature as marketplaces and monopolists. One one hand, such platforms help to reduce transaction costs and facilitate competition; on the other hand, such platforms are themselves commercial enterprises relying on economies of scale and network effects in order to build market dominance. Regulatory responses to such platforms must therefore operate on two levels: protecting workers, consumers, and society as a whole from the effects of unrestrained competition as well as from the effects of monopoly power. While certain regulatory functions can be entrusted to platforms and participants, others must be exercised by government. For example, the data-intensive nature of these phenomena offers new possibilities for effective regulation due to the new threats to privacy posed by sharing economy platforms.

The impact of sharing economy in labor relationships

ABSTRACT. The Digital era has changed dramatically industrial relationships. This has caused a considerable legal uncertainty about which rules apply to cyberspace. Technology is transforming business organizations in a way that makes the concept of “employee-as subordinate worker” less necessary. A new type of companies - "on demand economy" or "sharing economy"- dedicated to connecting customers directly with individual service providers are emerging. Thus, these companies develop their core business completely through workers classified as self-employed. In this context, employment law is facing its greatest challenge, dealing with a very different reality compared with the one existing when it was created. However, workers (employees and dependent contractors) still need protection. This study aims to analyze the different formulas which currently offer such protection, without threatening the development of the sharing economy.

15:45-17:15 Session 4A: Roundtable: Teaching Regulation and Regulatory Governance: Practice, Pitfalls and Potential

Roundtable with Colin Scott, Anne Meuwese, Graeme Hodge, Martin Lodge & Tatjana Jovanic

Chair: Eric Windholz

Location: Cz 112
15:45-17:15 Session 4B: Roundtable: Intersections of Law & Society and Regulatory Governance Research

Roundtable with Christie Ford, Paul Almond, Judith van Erp & Peter Mascini 

Chair: Koen van Aeken

Location: Cz 114
17:30-19:00 Session : Welcome Reception

Welcome Reception

Location: La Trappe Brewery at Koningshoeve Abbey