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09:00-10:30 Session 5A: Regulating food safety

Chair: Donal Casey

Location: Cz 116
The effect of issue saliency on steering of agencies

ABSTRACT. Policy makers have limited time and resources to steer (or control) the implementation of public policies by agencies. Their willingness to steer would be determined to a large extent by the saliency of an issue. It is argued that the more salient an issue is to an actor, the more it will influence the decision outcome. This study examines the effect of issue salience on the type of, and moment at which instruments are used by ministries to steer agencies. Steering typologies developed in a previous study (Zonneveld and Van Thiel, 2014) will be used to categorise the steering instruments in type (hierarchical, market/NPM, trust-based) and moment in the implementation cycle (ex ante, on going steering, ex post). Too little steering may lead to policy choices counter to principals’ preferences, while too much steering may sacrifice administrative expertise and lead to suboptimal policy choices. It is expected that for salient issues it is even harder to find a balance between active steering and micromanagement. To determine whether this balance is still intact, or not, I will also examine the satisfaction of both the ministry and agency with the steering relationship. Empirically I conduct a comparative case study in the Netherlands of four tasks/laws in the field of food safety that differ in their level of saliency. These tasks need to be implemented by the Netherlands Food and Consumer Product Safety Authority. By focusing on one agency in one country I control for other factors that might have an influence on steering such as size and other characteristics of the agency and administrative culture.

“By Any Measure, Our Poultry is Safe and Wholesome”: The Search for Safe Poultry in the U.S. and the European Union, 1993-2014
SPEAKER: Ashton Merck

ABSTRACT. A series of international food scares in the early 1990s prompted the United States and European countries to change their approaches to regulating food safety. This paper explores the historical context of policy decisions that were intended to reduce the risk of bacterial contamination in poultry products in the United States and in Europe since approximately 1993, and assesses why the policy responses differed across jurisdictions. In 1996, the United States Department of Agriculture (USDA) implemented a risk-based inspection regime known as Hazard Analysis and Critical Control Points (HACCP). By contrast, the European Food Safety Authority (EFSA) employs the “farm-to-fork” methodology that prizes prevention, biosecurity, and traceability in foods. Without an understanding of the history of the policies for each governing body, the differences in US and EU policies can seem incongruous and can complicate efforts at regulatory cooperation. The current state of public debate on these issues often fail to sufficiently acknowledge the underlying cultural and regulatory differences in the United States and European Union. For example, the focus on the use of antimicrobial washes (i.e., “chlorine-washed chicken”) oversimplifies a complex process of scientific and technological innovations, and works to obscure far more serious risks associated with vertically integrated poultry processing. This paper thus attempts to reframe the debate around the risk of foodborne illness, in order to analyze the extent to which these regimes achieve the regulatory objective of safer poultry for farmers, workers, and consumers.

Legitimizing Risk Regulation in the EU: Evidence from the European Food Safety Authority

ABSTRACT. How do European Union (EU) risk regulators manage their organizational legitimacy and reputation through the strategic use of scientific knowledge and technical expertise? When and under what conditions do they opt for particular scientific practices in order to justify their regulatory role and activities? EU regulators, in dealing with the multiplicity of legitimacy gaps and the need to secure their expert reputation vis-à-vis other organizations, employ different scientific knowledge uses. By drawing upon the theoretical insights of sociological institutionalism and resource dependence theory, the paper examines factors fostering diverse legitimacy and reputation cultivation strategies. Empirically the paper focuses on the European Food Safety Authority (EFSA) to assess the potential of proposed theoretical framework. EFSA was established after a major European level food safety policy crisis, i.e. BSE and Belgian Dioxin. Such background makes EFSA a legitimacy and reputation-sensitive cross-national body – i.e., a ‘most-likely-case’ to observe a variety of bureaucratic and scientific practices that are employed in the pursuit of legitimacy and reputation protection. By drawing on interview data (35 interviews), primary document analysis and direct observations the study examines how EFSA fills its legitimacy gaps and (re-) establish its reputation by engaging in scientific practices that are regarded as appropriate and/or effective by regulatory audiences. The study shows that the configuration of external institutional demands in combination with agency’s internal scientific capacity define how agencies engage in the politics of legitimation and reputation crafting. These findings, although based on one EU regulatory agency, illustrate how agency’s legitimacy gaps and the threats to its reputation are implicated in distinct scientific activities.

09:00-10:30 Session 5B: Innovations in regulatory accountability

Chair: Stephane Moyson

Location: Cz 117
Regulatory change and the Role of Courts as regulatory state actors: Enhancing Accountability in a Post Deregulated world
SPEAKER: unknown

ABSTRACT. The paper focuses on the role that courts play through judicial review in enhancing adherence to public law norms in the privatized services arena, in the post welfare state. As part of the shift from direct provision of public services by the state, such services are more and more provided by the private the third sectors through contracting out and privatization, thus often involving these non-state actors in policy design and policy implementation. This came to be known as the end of the positive or the interventionist state. The reliance on third parties in policy implementation regarding privatized services raises various accountability issues among which is the type of norms to be applied while reviewing their performance: public law norms or private law norms. The paper claims that courts play an active role in designing a new model of regulatory state, by extending public law norms to private bodies in the process of judicial review thus leading to a change in regulatory tendency. In addressing judicial review of privatized markets a distinction has been made between two models – the organic one and the functional one. The organic model is relatively narrow and limits amenability of private entities to judicial review to those entities that have close connection to the state. The functional model is a more comprehensive approach based on the nature of the public function performed irrespective of the source of its power. The present study has several aims: First: Following the discussion of changes in regulatory tendencies over time and the distinction between organic and functional approaches this study developed a scale for measuring shifts in regulatory tendencies.

Second: the study attempts to examine the relationship between the degree to which the human rights discourse becomes prevalent regarding private spheres is related to the degree to which the organic or functional approaches for applying public law are used. Third: the paper aims to discuss some of the factors that explain the development of judicial regulatory role in Israel and the specific form it has taken in terms of functional or organic regulatory approach. The paper is based on an examination of Israeli courts' rulings from 1990 until 2013.

Accountability and Regulatory Governance in a Cross-Jurisdictional Market: A Case Study of the All-Island Energy Market

ABSTRACT. Regulatory accountability is central to democratic governance. As regulatory institutions and their associated governance arrangements have become more complex and decision-making ever more distant from the citizen, it is imperative that such institutions and the actors within them are accountable for their actions. This research explores, through the lens of historical institutionalism, the issue of regulatory accountability in the case of the cross-jurisdictional energy market on the island of Ireland, which has evolved to implement European and domestic energy policy goals. The research considers the issue of institutional design, persistence and change with a specific focus on accountability within the existing governance framework of the all-island energy market. After mapping and assessing regulatory accountability, the research considers how the issue of accountability should be addressed in terms of institutional design for regulatory governance in a cross-jurisdictional market. Drawing on extensive document analysis and 22 in-depth semi-structured interviews with key decision-makers, this research demonstrates firstly, that the institutional form of non-majoritarian institutions needs to be aligned, that is, that the nature of the institution as a decision-making authority and as a legal entity must be fully coupled. Secondly, there is a need to embed accountability mechanisms (in all three directions: upwards, horizontal and downwards) into the institutional design. This is particularly important as regulatory institutions evolve from being state-centred non-majoritarian institutions into cross-jurisdictional, even regional, institutions for regulatory governance, operating in a decentred, multi-level governance context, such as the EU. Thirdly, the accountability mechanisms need to be periodically assessed and adjusted over time as the institution evolves. This serves to strengthen the institution’s formal and informal accountability arrangements. The research concludes that adopting an institutional perspective provides a useful lens for considering the best means of securing adequate levels of accountability in regulatory institutions, particularly when these operate in a cross-jurisdictional, multi-level governance context.

The Procedural and Institutional Legitimacy of Industry Rulemaking
SPEAKER: Karen Lee

ABSTRACT. Lawyers have questioned whether industry rulemaking, one of an ever expanding suite of regulatory techniques that involves the direct participation of the ‘targets of regulation,’ is consistent with the underlying procedural and institutional values that give law its legitimacy. Their scepticism arises because many (if not most) of the mechanisms that are thought to ensure satisfaction of the criteria of procedural and institutional legitimacy in traditional rulemaking - transparency, impartiality, accountability and deliberation - are absent from the rulemaking frameworks used by industry working committees to formulate rules. For example, the public cannot attend working committee meetings. It has no rights to access minutes and other documentation exchanged between working committee members. No participant in the process is impartial. Nevertheless, drawing on three in-depth case studies of consumer code development by the Communications Alliance, the Australian telecommunications sector’s ‘peak’ self-regulatory body, it will be argued that industry rulemaking can be procedurally and institutionally legitimate.

Section 1 of the paper explains the legislation that permits the Communications Alliance to formulate and register codes of practice, and the rulemaking framework it uses to draft them. Section 2 adjusts the precise meanings of transparency, impartiality and accountability so they retain the underlying goals of these principles while simultaneously accommodating the need for industry rulemaking. It decouples their purposes from the mechanisms that have been thought to satisfy them in traditional rulemaking. Section 3 argues that the procedural and institutional legitimacy of rulemaking by the Communications Alliance can be explained by its ‘politic’ – the interplay between and among the different actors involved in the process, the wider context in which rulemaking occurred and the principles of representativeness and consensus embodied in the rulemaking framework of the Communications Alliance.

09:00-10:30 Session 5C: Experimenting with regulatory governance

Chair: Sofia Ranchordas

Location: Cz 109
The Politics of Central Bank Reform: Bureau Shaping and Nested Games in UK Financial Regulation
SPEAKER: unknown

ABSTRACT. This paper examines the increase in regulatory capabilities delegated to the Bank of England (BoE) since the financial crisis. It conceptualises the reform process as a series of nested games, the resolution of which caused the Bank to shift its bureaucratic preferences to reflect the changing payoffs available from different reform options. The paper shows that during the higher order political game in 2010, the Bank initially tried to resist the imposition of enhanced macro-prudential and micro-level supervisory powers. Once these had been granted, however, we argue that it consistently sought to defend its new policy making capabilities from further political or bureaucratic interference. This is illustrated by analysing its preferences and actions in two nested bureaucratic games: bank supervisory reform (2010-11) and bank structural reform (2011-13). Our argument makes an important contribution to bureau shaping models by showing that central bank officials do not instinctively seek increased powers or budgets as conventional public choice accounts would predict, but rather attach a higher priority to preserving their bureaucratic autonomy and regulatory discretion.

EU Experimentalist Governance in Times of Crisis

ABSTRACT. This paper analyzes the evolution of EU governance since the financial and eurozone crisis from an experimentalist perspective. It argues that EU governance in many key policy domains continues to take the form of an experimentalist decision-making architecture, based on a recursive process of framework goal-setting and revision through comparative review of implementation experience in diverse local contexts, which is well adapted to the Union’s turbulent and polyarchic environment. The first part of the paper presents a synoptic theoretical account of the characteristics of experimentalist governance, and summarises the empirical evidence on its incidence and operation within the EU before the crisis. The second part of the paper examines two ‘hard cases’ from an experimentalist perspective, namely, financial regulation and the European Semester of socio-economic policy coordination. The paper concludes that both cases illustrate the limits of centralised hierarchical governance under the diverse and polyarchic conditions of the EU, together with the continuing attraction of experimentalist approaches for tackling complex, uncertain problems like financial regulation and reform of national employment and welfare systems.

Testing Policy Overreaction: An Index of Responses to Banking Crises
SPEAKER: unknown

ABSTRACT. Contemporary theories of the policy process typically assume that policy responses tend to go through long periods of stasis alternated with occasional bursts of intense activity. The concept of policy punctuations has been put forward to denote large-scale changes in public policies that take place in crisis moments. Current research on the dynamics of policy overreaction and underreaction is still in its infancy. It has mostly focused on either small-n cross-sectional analysis of government spending or case studies of single events. Allowing us to better qualify the concept of over or underreaction with respect to intersubjective criteria for identifying disproportionate responses, a comparative assessment of the extent of non-proportional responses in a situation of crisis is still lacking. To fill this gap, in this paper we will develop a framework to assess non-proportional policy responses systematically and comparatively in a cross-sectional and longitudinal perspective. More specifically, we will create an index to characterise the severity of policy over and under reactions. To offer an illustration of the procedure, we will apply our index to policy responses pertaining to banking regulation in the wake of the 2008 onwards financial crisis in OECD countries.

09:00-10:30 Session 5D: The Regulation of Corporate Crime (I): Bridging the Gap between Corporate Crime and Regulatory Literatures

Chair: Wim Huisman

Location: Cz 110
The Commodification of Safety
SPEAKER: Paul Almond

ABSTRACT. The field of regulation has long been an area in which both public and private interests play a role, via tripartite and polycentric structures, self-regulatory and devolved enforcement strategies, and the interplay between systems of regulation and compensation. The ‘regulatory state’ is often perceived as a means of effectively reconciling these differing goals, avoiding political dispute and crises of legitimacy by embedding them within rationalised, targeted, and accountable bureaucratic systems. The adoption of increasingly commercial ‘ways of seeing’ is also central to these developments. As the criminological literature illustrates in relation to policing and the reframing of security as a ‘commodity’, while the instrumental capacity of enforcers to efficiently exercise control may be enhanced through the harnessing of commercial imperatives, these trends bring risks in terms of changes to the perceived normative legitimacy of regulatory systems.

Drawing on a mixed methodology project (key actor interviews, public focus groups, archival and documentary analysis), this paper charts the impact, in terms of legitimacy, of the trend towards the commercialisation of occupational health and safety regulation in the United Kingdom. In particular, it sets out the impact that the adoption of commercial imperatives within this field has had upon the perceptions of policymakers, stakeholders, and the public, and goes on to identify four key areas of development that have proved particularly important in this regard: the emergence of a commercial, service-providing ‘safety profession’; the increasing influence of systems of insurance and civil compensation; the embedding of commercial drivers within the work of state-level enforcers; and the more pervasive effects of efforts to systematise the delivery of ‘health and safety’ as a commodity rather than the outcome of a moral endeavour. It argues that this trend poses major challenges for health and safety regulation in the future.

Corporate involvement in international crimes

ABSTRACT. Mass atrocities are often enabled, facilitated or exacerbated by the conduct of corporations. Over the past decades, accusations of corporate involvement in international crimes are common and damning, while little is known about how and why otherwise legitimate business organizations become involved in such crimes. This paper aims to study how and why corporations become involved in international crimes by looking at the institutional environment in which these corporations operate. While the state is traditionally seen as a regulator, in situations of corporate involvement in international crimes states are often unable or unwilling to regulate harmful corporate behavior either because of parallel goals or a (perceived) lack of control. Also, in many cases we see a clear regulation and governance gap because corporations becoming involved in the global south are headquartered in the global north. It seems that different types of corporate involvement in international crimes require different approaches when it comes to prevention and accountability at the national and international level.

Establishing enforcement legitimacy in the pursuit of rule-breaking 'global elites': The case of transnational corporate bribery
SPEAKER: Nicholas Lord

ABSTRACT. This paper develops an analytical framework for analysing the legitimacy of law enforcement responses towards rule-breaking ‘global elites’, in particular multi-national corporations implicated in transnational corporate bribery. While international anti-bribery laws and norms converge cross-jurisdictionally, enforcement contexts and responses can diverge formally creating dilemmas over how to establish the relative legitimacy of different enforcement frameworks. The paper draws on a threefold framework proposed by David Beetham for understanding legitimacy (i.e. legality, normative validity, legitimation) which it considers in relation to the contingent cultural contexts of enforcement of two jurisdictions, Germany and the UK, before identifying key necessary minimum requirements of legitimate enforcement that can inform cross-cultural analysis. The paper suggests the proposed framework provides an alternative to current evaluative measures used by international anti-corruption organizations.

09:00-10:30 Session 5E: Comparing regulatory interactions

Chair: Jacint Jordana

Location: Cz 118
De-facto coordination in regulatory decision-making on liberalized telecommunications sector in Bangladesh and Nepal: a social network analysis
SPEAKER: unknown

ABSTRACT. Coordination in regulatory decision-making is often complex, involving many actors at different levels of governance. To take this into account, this paper focuses on the actual coordination in regulatory decision-making processes by analyzing the case of liberalized telecommunications sector in Bangladesh and Nepal. So far, the academic literature has mainly emphasized on the formal or de-jure coordination between regulatory authorities. We argue that the ongoing relational configurations and interplay between sector regulatory agency, political authorities, co-regulators and market forces can define the actual coordination and power dispersion in regulatory arrangements. Based on a social network analysis (SNA), we show that the de-facto coordination is quite different from de-jure coordination in regulatory decision-making processes. The formal coordination as defined in telecoms law does not necessarily guarantee the actual coordination among regulatory actors and concentration of the most decision-making power to sector independent regulatory agency (IRA). Variations of coordination in regulatory decision-making across countries could be understood better by measuring and comparing the de-facto collaboration among regulatory actors and actual diffusion of regulatory competencies among these actors.

The role of Intermediaries in Internet Regulation and Policy - From Constrained Agents of the State to Gatekeepers of their Own Turf
SPEAKER: unknown

ABSTRACT. When considering some of the broader human rights implications of internet-related policies, despite their differences in character, context and content, a shift appears in how human rights are envisaged and debated, from the traditional focus on state obligations and state enforcement (hard law) to an increasing involvement and call upon private companies to play a role in the realization and protection of specific human rights (e.g. through charity actions, participation in soft law development, and through codes of conducts and other corporate social responsibility initiatives). Likewise, private actors increasingly refer to human rights when framing specific initiatives or interests, often with limited reflection on human rights as a set of international legal norms, with inherent zones of conflicts (e.g. protection of individuals against abuse of power, commitments to certain standards in society). This shift in the human rights discourse from state obligations to corporate initiatives seems to reflect the nature of the online environment with private actors in control of core infrastructure and services, yet it is extending and its implications for the protection of individuals is troublesome. This paper critically analyses examples of European policies regulating the role of internet intermediaries, including in areas such as content regulation, privacy and data protection, copyright, and telecommunication infrastructure. It formulates and explores the hypothesis that the observed shift is constructed and maintained mainly through procedural transformations of existing legislation and regulation, with still greater emphasis on co- and self-regulatory regimes. Moreover, it argues that the observed shift is closely related to the governance structure of the digital domain; with new zones of conflict and new areas of convergence between the state and private actors.

Explaining the delegation of individual regulatory decisions to regulatory bodies of the telecommunication sector of twelve countries
SPEAKER: unknown

ABSTRACT. Research in regulation of liberalized markets has been traditionally very much focused on studying the delegation of regulatory competences from political principals (cabinet, ministers) to an independent regulatory agency under the argument that it is a way to assure governments´ credible commitment to liberalization. Hence the focus of this research tradition has been very much organizational, with special attention for the characteristics of these sectoral regulatory agencies (like independence and regulatory competences). However, this organizational focus has its limitations. First, usually in the regulatory framework of a given country, other actors which are also entitle to take regulatory decisions, exist besides the sector regulator. So, political principals have different options with respect to which organization to delegate a specific regulatory issue, and do not necessarily delegate all issues to the sectoral regulatory agency. Also, existing studies do not distinguish different individual regulatory issues when analyzing delegation patterns, but tend to focus on broad categories of delegated issues (e.g. the extent to which economic regulation is fully delegated to an agency or not). But regulatory issues range from economic to social and technical regulation, and entail decisions about many different regulatory instruments (like licensing and other instruments). Even in countries with very powerful sectoral regulatory agencies, not all individual regulatory decisions concerning economic, social and technical regulation of a market are delegated to these sectoral regulatory agencies, but are allocated to other actors or kept with the minister or cabinet. In this sense the question of which individual regulatory decisions are delegated to which regulatory actor and which are kept at the level of national ministers and ministries becomes relevant, as well as the question why this is the case. The basic argument of our paper is that when allocating regulatory competences to specific actors, legislators do indeed differentiate between different regulatory issues and decisions. Moreover they choose different delegation patterns for different individual regulatory decisions, due to rational logic or because of isomorphic pressures. This paper aims to study, compare and explain delegation patterns at the level of individual regulatory decisions in different countries with different administrative traditions. The theoretical framework of the paper distinguishes four levels of explanatory factors: • factors related to the type of regulation (economic, social or technical regulation), • factors at the country level (the administrative tradition and the level of veto players or political constraints), • factors at the sectoral or market level (the maturity of the liberalized market and the share of the public incumbent), as well as • organizational features of the organization to which the decisions are delegated The empirical analysis will focus on the patterns of formal delegation concerning the regulation of the telecommunication market in 12 countries, located in Europe, Latin America, and South Asia. The data is gathered by studying and coding the legislation and regulations concerning the telecom market in these countries. Statistical multi-variate regression analyses are used to test the hypotheses.

Interstate collaboration in regulatory development and governance. Australian and Swedish engagement in compliance and enforcement programs in the road transport sector.

ABSTRACT. This paper examines the collaboration, transfer and sharing of regulatory models and governance frameworks between states. The research examines the use of satellite tracking technology as a compliance tool to ensure high capacity trucks remain on route, do not overload and travel at approved times. This regulatory program has operated in Australia for a number of years and is administered by a national statutory agency, Transport Certification Australia (TCA). TCA is now working with transport regulators in Sweden to pilot and extend this compliance model into the Swedish road transport system. In the Swedish pilot the services that undertake the satellite tracking of vehicles have remained based in Australia and compliance reports are remotely provided to the relevant Swedish road transport authority when breaches are detected. This case reveals collaborative regulatory governance developing between Swedish and Australian agencies.

The research draws on qualitative data from interviews with industry participants and officials from regulatory and policy agencies in Australia and Sweden. The study draws attention to factors that influence policy and regulatory transfer as well as highlighting the facilitating role technology now plays in the transfer and adoption of models of compliance and enforcement. The analysis of this case provides insight into regulatory collaboration, adaptation and innovation. The findings of this study also suggest that collaborative engagement and the transfer of regulatory knowledge across jurisdictions is a growing characteristic of regulatory development and innovation in models of compliance and enforcement. This paper argues that it is important for actors engaged in the design of regulatory programs to remain aware of international developments since lessons from practice, improvements and refinements may increasingly emerge from the global process of collaboration, transfer and adaptation.

09:00-10:30 Session 5F: Chinese path towards legitimacy: changes and challenges

Chair: Qian Yang

Location: Cz 119
Online Content regulation and its legitimacy challenge in Chinese social media - the case of Chinese Baidu Tie Ba

ABSTRACT. The control of user-generated content on social media platform is a big challenge for government regulation. For China, although the rigid censorship is well-documented, the system is more politics driven under the goal of maintaining political stability, therefore largely focused on political sensitive speech, and the procedures of the system largely keeps secret and legally non-transparent. For other types of illegal content, such as online obscene and pornographic information, a self-regulation system by internet industry is legally recognized and widely used in regulatory practice. Different layers of private gatekeepers are inserted into the regulatory process with the regulatory power to enforce regulatory laws and rules with discretion in their platforms. This paper is a nuanced reflection of this complicated gate-keeping process on both the regulatory capacity and legitimacy of this public-private intersected system.

Baidu Tie Ba is a large Chinese social media platform hosting millions of individual communities. As Baidu Company has the legal responsibility for content control in Tie Ba, the company develops a Tie Ba host system to share the regulatory power as well as responsibility in each individual community. Ba Hosts are selected from experienced end users. Whether or not the hosts comply with the government regulatory rules and how the end users conceive of host’s regulation and the regulatory rules in general can decide both the effectiveness and legitimacy of the content regulation. The case study presented in this paper will show that the content regulation by hosts is accepted by end users as it is necessary for the healthy development of the community, but the government regulatory rule for online pornography is substantively tailored by hosts and also contested by end users.

Legislative Evaluation as Meta-regulation: Rationalization and Legitimation of Lawmaking in China
SPEAKER: Guanbin Wen

ABSTRACT. This article looks into the recent flourishing practice of legislative evaluation at various legislatures from national to local levels in China. This article argues that the legislative evaluation can be understood as meta-regulation in Chinese context, which serves as institution for further rationalizing China's lawmaking system. Using the case of legislative evaluation at one local Chinese legislature as example, this article examines legislative evaluation as meta-regulation institution that rationalizes the lawmaking in two aspects. It provides tools to measure the efficacy of the legislation in a tangible way, and allows then the reflection upon fulfillment of the instrumental purpose of the legislation. Legislative evaluation also serves as legitimation for the lawmaking by creating a rationalization architecture of specially designed institutions and procedures. The rationalization architecture, most commonly known as criteria or index system of evaluation, offers guidance of justification for a legislation to be "good and useful". The architecture is also crafted in a way that includes more parties and voices to participate in the evaluation process. The emphasis on justification and participation of the lawmaking process is vital in bringing forth fundamental changes of values, which underpin the ongoing legal reform in China. This article then concludes that rationalization of the lawmaking system through the legislative evaluation may serve as one driving force for China’s transition towards rule of law.  

Vertical or horizontal accountability: holding Chinese rulemaking power to account to the National People's Congress
SPEAKER: Qian Yang

ABSTRACT. The National People’s Congress (NPC) is the ‘supreme holder of state power’ in the Chinese Constitution, to which all the other public institutions should surrender accounts for their power exercise. In enforcing this constitutional principle, the rulemaking power of the State Council is subject to the regulation of the NPC. The regulatory framework of the NPC on the rulemaking power of the State Council is established on both formal laws and internal working rules. The regulation of the NPC on the rulemaking power of the rulemaking establishes a vertical accountability relationship between the two institutions. However, the result of empirical study on the practice of the NPC regulating the rulemaking power shows that the de facto accountability is not vertical but horizontal.

This paper employs accountability as a ‘lens’ to understand the relationship prescribed in the formal laws and bureaucratic rules between the NPC and the State Council with regard to rulemaking. This paper argues that the sense that accountability conveys is a separation of the power and legitimacy in governing, which can be seen from the practice of the NPC regulating rulemaking—the de facto accountability between the NPC and the State Council. In comparing the power allocation implies in the constitutional principle of the supremacy of the NPC, the power allocation prescribes in the regulations and the power exercise in practice, this paper argues that the original constitutional order of the supremacy of the NPC is transformed.

Experimental Legislation: A Future Trend to Legalize and Legitimize Local Experimentation in China?

ABSTRACT. There has been a consensus that the legal evolvement fails to develop simultaneously with socio-economic transformation In China, inter alia, the tension between law and reform has been a hindrance for China’s ongoing reform to a thorough and deepening extent. The past experience of policy experimentation in the form of local pilot programs had substantially broken down the refrain from the law and hence generated significant implications on the evolution of China’s legal system. However, what has been rarely explored is that the local pilot reform has been performed at odds with the current laws. The inconsistency, though, were at a time legitimized by the thought termed “benign unconstitutionality”. On displaying the uncoordinated development between law and reform through the lens of three crucial land reforms initiated by the local ever since the late 1970s, the article sets forth the innovative legislative tool applied in early 2015 to deal with land tenure reform in China, and examines its responsive functions to legalize and legitimize local land reforms, which might provide an ideal solution to managing the tension between law and reform.

Contextual and Subjective Regulatory Compliance: An Empirical Study of Chinese Farmers
SPEAKER: Huiqi Yan

ABSTRACT. Since China published the Regulations on Pesticide Administration in 1997, it has witnessed serious environmental problems caused by a dramatically increasing use of pesticides. This article aims to explore how pesticide rules and laws enacted at the central level are enforced by the local authorities as well as how the regulated actors respond to it at the local level. Based on an empirical study of 31 pesticide enforcement officers and 119 vegetable farmers in the central south of China, this article analyses a comprehensive set of variables that can explain the compliance and non-compliance behavior found there, including perceived deterrence of enforcement, the costs and benefits of compliance, perception of the law itself and behavior of others, the perception of the general duty to obey the law, and the capacity to obey the law. The paper has two core findings. First that all compliance variables studies are both contextual and subjective, which means that they are different for different types of regulated actors, but also that even similar actors have different perceptions at times. Second, it finds that existing law enforcement practices prioritize farmers whose capacity as well as cost benefit, social norm, and personal norm already support compliance. The paper concludes that a new form of responsive regulation is essential, one that does not merely respond to the level of trust and behavior of the regulated actor, but one that responds to the contextual and subjective conditions of each specific case.

09:00-10:30 Session 5G: Climate Change and EPA's "Clean Power Plant Regulation"

Chair: Sanja Bogojevic

Location: Cz 122
Merging Energy and Environmental Law & Policies

ABSTRACT. In the United States, it is an historic anomaly that the discipline of environmental law preceded that of energy law. Further, instead of coordination between the two, the disciplines developed separately from each other making the administration of each difficult, inefficient and not easily responsive to the challenges of climate change. The Obama administration’s Clean Power Plan has the potential of closing the gap between energy law and policy and environmental law and policy this paper will explore that potential. Admittedly, closing the gap will be difficult in a range of challenges from the legal to the technical remain. Nevertheless, this is the first major federal attempt to recognize the necessary connection between energy and the environment it will have significant implications for the transition to a clean energy economy.

Bringing Environmental Values to Traditional Energy Regulation
SPEAKER: Emily Hammond

ABSTRACT. Energy regulation in the United States finds its origins in the economic regulation of the Industrial Revolution, which was concerned that rates be “just and reasonable” and not “unduly discriminatory.” Until very recently, these attributes have always been concerned with the economic circumstances of energy pricing and avoiding anticompetitive behavior. However, the U.S. Federal Energy Regulatory Commission (FERC) has increasingly broadened the understanding of these requirements such that some environmental values are beginning to appear in federal energy regulation. As energy and environmental regulation become increasingly intertwined, FERC must itself become increasingly attentive to that reality.

Interpreting the Clean Air Act: Who Decides and Why It Matters

ABSTRACT. Whether the Environmental Protection Agency (EPA) has legal authority to promulgate the Clean Power Plant Rule under §111 of the Clean Air Act could be determined by the Supreme Court’s approach to statutory interpretation. Although Section 111 authorizes EPA to regulate a “system of emissions reduction,” the statute does not define that term, which makes it contestable whether EPA can employ systems of pollution reduction other than directly controlling an emissions source. In the Chevron case, the Supreme Court announced judges should defer to agency interpretations of ambiguous statutory terms, but the Court has not deferred in recent cases (like this one) that have significant political and economic significance. The paper discusses the relative roles of the courts and agencies in statutory interpretation and how this issue of regulatory governance will impact the US commitment to reduce greenhouse emissions.

09:00-10:30 Session 5H: New frontiers in risk regulation

Chair: Claudio Radaelli

Location: Cz 123
Contradiction as usual: the ordinary life of risk managers between regulation and operation
SPEAKER: unknown

ABSTRACT. Risk management policies and methods are increasingly prescribed by regulators. This fits at least two developments over the past decades. First, public regulators and enforcers increasingly base their efforts on their own risk assessments. Second, public regulators increasingly rely on self-regulation, shifting responsibilities to regulate risks to companies whose operations are risky in the first place. These developments make the role of risk managers all the more important for the effectiveness of regulatory policies that seek to mitigate risks for society. Risk managers have a unique position in between regulators and enforcers on the one side and company operations on the other. This paper reviews how this linking-pin role of risk managers is perceived in organization and regulation literatures. Four different roles of risk managers are distinguished: - Risk managers as technostructure, translating regulatory policies into standards for operations; - Risk managers as ‘street level- bureaucrats’, coping with a variety of regulatory policies on the one hand and operational complexities on the other hand; - Risk managers as boundary spanners or gatekeepers, explaining and framing practices towards regulatory policies; and - Risk managers as agents of regulatory communities, (re)interpreting policies and practices with regulators and operators. All roles assume different motives, means and positions towards the regulator. The results of an empirical study on risk managers in three Dutch sectors provides illustrations of these roles in the day-to-day organizational reality. Of course real-life risk managers are hard to categorize. It will be concluded that risk managers play multiple roles simultaneously. However, preliminary findings also indicate that some roles may mix quite well, while some prove outright contradictory. Further empirical work should focus on the way risk managers combine the various and the consequences for the effectiveness of regulation.

U.S. Cybersecurity With/Out Privacy: A Risk Regulation Perspective on US Cyber Regimes

ABSTRACT. Cybersecurity and cyber-privacy are two major policy aims in U.S. regulatory governance. These two aims can complement or contradict, and thus, allow us to explore fundamental questions on the interests, institutions, policy-trends, and social norms that shape U.S. regulatory governance. Within this scope, the paper has three main goals. First, better understanding of the policy trends and institutional practices in the U.S. that structure cybersecurity and cyber-privacy trade-offs. Second, developing and applying a risk-based approach to U.S. regulation of cybersecurity and cyber-privacy. Third, explaining variations within U.S. regulatory sub-regimes that govern different aspects of cybersecurity and cyber-privacy. In order to do so, I compare the dynamics of regime making across three U.S. regulatory regimes that embrace a different 'risk-strategy' approach (Moss and Baker 2009): (a) the Cyber Risk Prevention regime that enhances the protection of personal information and critical infrastructures; (b) the Cyber Risk Coordination regime that coordinates cybersecurity information between the government and private sector and embraces a risk-shifting approach; (c) the Cyber Risk Mitigation regime that minimizes consequences from a data breach and follows a loss-control approach. Usually, the current literature addresses concerns of either cybersecurity or privacy. Nonetheless, this paper studies their interaction in a comprehensive way, taking both as important elements of the whole, through the application of a risk-based approach.

Regulating complexity in the European Union – The role of the European Centre for Decease Prevention and Control in the H1N1 case
SPEAKER: unknown

ABSTRACT. In recent years, we have witnessed crises and other complex policy problems in very diverse policy fields and at all kinds of levels: think of BSE, Dioxin, GMOs, swine flu (H1N1), E-coli, the sinking of the Erika and Prestige tankers, volcanic ash, the Eurozone crisis, or Ebola. Such problems are increasingly transboundary as modern societies are consisting of a tightly woven web of critical infrastructures crossing geographical borders and policy boundaries. As a result, risks and uncertainties easily spread over very diverse policy fields and spread both within the EU system of multi-level governance and also globally. Such transboundary policy problems are particularly hard to manage due to the fragmentation of authority and thus a lack of clear ownership and responsibility for tackling the problems at hand. What implications does this have for the international regulation of complex policy problems?

At the European level we witness an increasing use of regulatory agencies to solve problems of complexity. This strategy is rooted in the ‘belief’ that agencies through (independent) expertise and apolitical, high quality evaluations will lead to better decisions, more efficiency and increased accountability. Independent regulatory agencies are expected to provide better (technical) expertise and are capable of making more credible policy decisions. This paper will analyse the way in which the EU regulates complex policy problems via the case study of handling of the H1N1 pandemic in the European Centre for Disease Prevention and Control (ECDC). Due to complexity, sensitivity and its scale, the H1N1 pandemic was considered as one of the most serious health emergencies in the EU and the first crisis that led ECDC to activate the highest level of an emergency situation plan.

Risk and Urban Water Innovation: Looking Through the Harm Lens
SPEAKER: unknown

ABSTRACT. Governments now pursue urban resilience, liveability and sustainability, and water reforms and policies are central to this. New practices, new technologies and new arrangements are fundamentally changing the way water is being delivered in our cities. New practices and urban delivery models, however, bring with them new risks, or at least new allocations of existing risks. Our traditional analytical lens on questions of risk has most often used the philosophy of risk avoidance and minimisation through risk management techniques. One strand of today’s water reforms is new practices which are decentred compared to old centralised water arrangements and systems. Decentred supply arrangements may include a wide range of new practices, but this paper examines the legal consequences of new water arrangements where water is supplied not through traditional government utilities but through legally decentered entities – ie through private, or community owned entities. The paper takes a less common research pathway in that it follows through the legal consequences of what happens if a harm does occur along with innovation. In other words, what happens if the risk is unfortunately manifested through harm to the end user? The paper analyses four separate incidents of harm in hypothetical decentred scenarios. These include: water contamination, flooding, sewage nuisance and an interrupted water supply. In each case, the paper analyses the legal consequences of the harm, and for each case, the difficulty for people who are harmed by the incidents in pursuing adequate redress is outlined. The paper concludes that changing the legal ownership of water suppliers in most cases has real legal and practical implications. Governments considering water reforms involving decentred arrangements therefore need to move carefully, and explicitly consider whether new practices must also be accompanied by new regulatory regimes and recovery mechanisms to minimise transaction costs for users or whether new arrangements are justified at all.

09:00-10:30 Session 5I: Trust & Regulatory Governance (I): The Regulatory Trust Triangle

Chair: Frédérique Six

Location: Cz 006
"Trust me - I'm the Government" - Contestation over Trust and Public Interest in Regulatory Regimes that Favour Big Carbon Energy
SPEAKER: Linda Hancock

ABSTRACT. Public policies that have favoured the fossil fuel industry are now under criticism from public interest advocates arguing for policy based on polluter-pays principles and carbon reduction strategies. This paper focuses on the corporate political activities used by Big Energy to maintain policy advantages that have served it to privilege their interests. Drawing from corporate political activity (CPA) analysis used to analyse the lobbying activities of the tobacco industry, this paper unravels the strategies, tactics and arguments used by Big Energy in Australia to construct a “regulatory trust triangle” based on a co-regulatory model between industry and government.

The regulation of lobbying activities in the EU

ABSTRACT. This paper offers a systematic exploration of why groups sign up to the EU Transparency Register. Drawing on theoretical insights from implementation studies, the author distinguishes between instrumental and normative perspectives to explain target compliance. Accordingly, the decision to join the Register can be interpreted, on the one hand, as a function of incentives (including monitoring, enforcement and information effects), and, on the other, as a function of social norms (e.g., accepting transparency as a rule of the lobbying game), as well as the extent to which targets perceive the European institutions as legitimate regulating authorities. The paper also accounts for the role of trust in shaping relations in this regulatory regime, since instrumental and normative types of motivation have different implications on the trustworthiness of the regulated, and their desire to be perceived as such.

Trusting New Institutional Actors: The Implementation of the Unified Patent Court

ABSTRACT. Many stakeholders have expressed concerns about the functioning of the Unified Patent Court (UPC), a new court system specialized in patent law that is currently being implemented in Europe. These concerns are often referred to as the need for the UPC to generate “trust” amongst its stakeholders. The objective of this paper is to explore different measures to generate trust in a judicial context. It employs a conceptual framework that is based on the public administration literature related to trust. The paper maps the main features of the UPC and some of the outstanding issues in the implementation phase from a trust perspective. A comparative analysis of specialized intellectual property courts in other jurisdictions provides insights in measures that can be used to overcome the uncertainty related to the establishment of the UPC and trigger the “leap of faith” that is required to stimulate stakeholders to collaborate with a new, specialized judicial actor, such as the UPC.

09:00-10:30 Session 5J: The Layers and Actors of Data Protection Regulation

Chair: Maurice Schellekens

Location: Cz 008
Hard-coding data protection: a tale of promises and perils of a strong force
SPEAKER: Ronald Leenes

ABSTRACT. The data protection by design and by default and the accountability provisions in the new General Data Protection Regulation (GDPR) promote the implementation of data protection norms in the hardware and software employed by data controllers. The GDPR places the responsibility for compliance with data controllers, who using techno-regulation partly ‘outsource’ this to their IT systems. The prospect of such hard-coded data protection is strict enforcement of the regulation. The drawbacks, however, are plenty. The norms to be implemented come from different sources (GDPR and business rules), range from abstract and open to very concrete, are open to interpretation, lack guidance, and their implementation can be totally intransparent for data subjects and supervisory bodies alike. In theory there is a lot to be gained by techno-regulation in the field of data protection. In practice there are fundamental and practical hurdles that may hamper its ambition. This paper outlines promises and challenges to try and get a more realistic picture of the prospects of hard-coded data protection.

The risk-based approach to data protection. Keeping abreast of technological change through delegated risk management?

ABSTRACT. The risk-based approach to the General Data Protection Regulation is a way to keep data protection law relevant in times of technological change. In short, this approach entails that the norm-addressees (controllers) are subject to less legal constraints if their activities pose lower risks to the rights and freedoms of individuals; if the data processing is high-risk, their obligations are more extensive and require appropriate measures to be implemented. However, if it is up to controllers to decide what counts as a risk, can this approach bring about a high level of protection? This paper will praise the risk-based approach for its long-lasting ability to target harmful conduct, but it will also problematize the uncertainty surrounding the notion of “risk”. The notion of “risk” is indeterminate and its application will require controllers to make numerous normative decisions about the protection of fundamental rights. In effect, the General Data Protection Regulation delegates these decisions to controllers, requiring them to establish norms about what counts as a risk and how this should be assessed. However, controllers may lack the incentives to set these norms at a high level, in effect lowering the protection offered by the General Data Protection Regulation.

The standard-setting process in the General Data Protection Regulation. A remarkable example of inter-normativity
SPEAKER: Eric Lachaud

ABSTRACT. The General Data Protection Regulation requires drafting dedicated standards to be used as requirements in the certification process established in Article 42 and 43 of the law. This drafting process contributes at transferring legal content from the law to the standards. This transfer is what the French literature defines as inter-normativity. The inter-normativity studies the processes of normative transfer between different normative orders. The inter-normativity case offered by the GDPR appears noticeable for two reasons. It demonstrates that public rules can influence the content of private ones and inter-normativity can be a monitored process by public authorities.

Data protection authorities as regulators of fundamental rights

ABSTRACT. Independent data protection authorities (DPAs) play a central role in the governance of privacy and data protection in the EU. They enjoy a high level of independence, recognised by the EU Treaties, the CJEU and the EU legislator. One could even consider the DPAS as a new branch of government, an addition to the traditional trias politica. The presentation will elaborate on the diversity of tasks of DPA's, which gives them legitimacy, but at the same time raises fundamental questions, because the exercise of tasks may sometimes lead to contradictory positions. The following dilemma's will play a central role: · Does a DPA primarily defend an individual or a collective interest? · Is the task of a DPA primary supervision or is it more? Could one speak of the task as "supporting compliance"? · Is the task of the DPA primarily national or European? In this context Art 51(2) of the GDPR is relevant. · Is the substance "privacy" or is it more? · What are the boundaries of complete independence? There should be some kind of accountability of DPAs, being public authorities funded with public money.

11:00-12:30 Session 6A: Challenges and opportunities of new technology in regulatory governance

Chair: Tatjana Jovanic

Location: Cz 116
Implications of ASEAN Cosmetics Directive in Regulating Nano-based Products

ABSTRACT. In recent years, global safety debate over the uses of nanomaterials in regulated products has been an increasing concern of national regulatory authorities across Southeast Asia. At the very core is the question whether the current legislations would suffice to capture the cross cutting applications of nanotechnology. Among significant development is transposition of the ASEAN Cosmetic Directive (ACD), modeled after the EU Directive, which promotes mutual recognition arrangement of product registration approval for cosmetics – nano-based cosmetic included – among its member states. This paper indicates that a sound legal framework could provide the keys to unlocking the region’s full potentials and reducing unnecessary barriers to trade. Questions abound, however, with respect to varied national standards and unclear stance of the ASEAN Community over definition of nanomaterials for regulatory purposes, commitment to labeling claims, product notification and post marketing obligations for nano-based cosmetics. This raises a concern whether the regulatory measures undertaken by national authorities are being aligned with the objectives of the ACD. An added layer of complexity is also caused by the absence of risk management practices sharing over approaches to regulating nanotechnology. In the Community, where nanotechnology’s legal practice remains nascent, there is an increasing importation of nano-based cosmetics into the consumer market. This begs a question of whether there are sufficient safeguard measures in the current laws when face with situations that require immediate regulatory responses. Based on a review of cosmetic legislations and their applicability to nanotechnology in Thailand, Singapore and Malaysia, the present contribution intends to propose a nanosafety scenario mapping of cosmetics for the Community. In this regard, it elaborates the concept of ‘safety’ in cosmetic laws, their regulatory limitations and gaps to demonstrate current trends of regulating nanomaterials as regulatory objects and nano-based cosmetics products as product categories. In light with the ACD and the ways nanotechnology are being addressed in the respective national laws, the paper concludes as to whether there is a possibility to achieve a systemic approach to nano-based cosmetics as a test-bed for regulating nanotechnology within the Community.

Broadband in parliaments: the regulatory state & technological change

ABSTRACT. This paper compares and contrasts the processes used by the European, United Kingdom and Scottish parliaments in considering broadband policies, legislation and outcomes. These are complex multi-tiered governance systems, based on the regulatory state, faced with rapid technological change. Broadband is of increased importance due to the digitalisation of government services and of political processes, potentially excluding those without access.

Operators initially direct new services to specific areas, by the economics of density and the expected returns, then deployed more widely, allowing staged investments. Demands to accelerate and extend availability and to increase adoption generated modifications to legislation and regulations to increase investment incentives, to provide state aid, and to support training of non-users. Best practice in such initiatives are aligned and coordinated through the EU and OECD.

Parliamentarians must reconcile demands for services from citizens and constituents with the lobbying of operators, with value for money and their arm’s length role. The issues are economically and technologically complex, defying simple interventions. Inquiries have to cut through terminology, economics, lobbying and threats of litigation.

The European Parliament scrutinises and adopts framework legislation for an increasingly diverse set of member states. It works with the European Commission, Council of Ministers and BEREC.

The UK parliament has limited roles in EU legislation - scrutiny of texts and ministers negotiating positions. Its committees have been engaged with rural provision, especially state aid, as well as oversight of the ministry and the regulatory authority.

The Scottish Parliament has notionally no role, broadband being a reserved matter. Nonetheless it produced one report. It failed to examine the proposals for broadband governance after independence, for which there were two irreconcilable proposals and an impossibly tight timetable to split the market.

There is lobbying at all three levels.

The cookiewars – from regulatory failure to user empowerment?
SPEAKER: Ronald Leenes

ABSTRACT. The European regulator has relatively early on seen the potential privacy harms of cookies as means to facilitate the tracking and tracing of individuals as the browse the internet. The ePrivacy Directive regulates the use of cookies (amongst other mechanisms) in this respect, requiring the affected individual's informed consent. The regulation has, so far, not been very successful in limiting the amount of tracking and tracing of individuals (primarily for the purpose of personalised, or behavioural advertising). It has been strongly opposed by the relevant industries, has seen a very low level of compliance and where compliance exists has been very slow in the making. Furthermore, ironically, the regulatory benefactors, individuals, have also opposed the regulation.

The battle to stop the unconsented tracking \& tracing of individuals seems particualrly lost now that the implementation of the cookie law's requirement by and large seems to have moved from requiring the individual's consent for the placement and use of cookies (thus providing the individual with a choice not to be tracked) to a mere acknowledgement that cookies will be used (and hence individuals will be traced, no matter what they want). The industry has succeeded in completely subverting and undermining the regulation's aim. The 'cookie law' can thus be seen as an example of regulatory failure in the domain of privacy and data protection.

However, the cavalry might be around the corner. Although ad-blockers, which by and large also block tracking-cookies from being installed on the user equipment, have been around for some years, their use was until recently confined to techies and nerds. In the last couple of years this has been changing. Ironically, the popularity of Google Chrome goes hand in hand with the rise of ad-blockers on desktops (and laptops). Until recently, ad-blockers did not exist on one of the most important platforms for advertising revenues, iOS. This has changed with the launch of iOS 9 in mid September 2015. Suddenly ad-blockers are clearly on everyones agenda, either as threat or blessing. The adoption rate of both iOS 9 and Safari ad-blockers is stunning and might represent a significant factor to change the ad and tracing game altogether.

This contribution explores the ongoing cookie-wars by discussing the move from regulation to the market and code as modalities for the regulation of human behaviour.

Failing Regulation and Governance in the Area of Stem Cell Tourism: A Comparative Analysis of Europe and the US

ABSTRACT. The phenomenon of so-called “stem cell tourism,” in which patients travel to other countries in order to get unproven stem cell-based treatments is not new and has especially been observed in countries such as China, India and Mexico. More recently, however, companies marketing such stem cell products of unknown efficacy for wide varieties of diseases have begun to operate and to market these technologies openly in jurisdictions such as Europe, the US, Australia, and Japan as well. This is quite remarkable in view of the advanced regulatory models for marketing authorization that exist in those jurisdictions. However, stem cell companies and clinics are tinkering with the exceptions that exist within these regulatory regimes. In addition, a strong movement of patients’ rights organizations, libertarian think-thanks, stem cell clinics and companies and other advocacy groups have been pursuing a narrative focused on deregulation and banning requirements for clinical trials in this particular field. Regulatory agencies have failed to respond and to offer effective mechanisms for dealing with these developments. Quite the opposite, in some cases those narratives have actually been successful in influencing the decision-making processes at various governance levels challenging the autonomy of the regulatory agencies concerned.

The objective of this paper is to systematically map the applicable complementary regulatory constellations and the available enforcement mechanisms related to stem cell tourism in Europe and the US. This analysis takes due account of the relevant literature on multilevel governance, which until now has been relatively ignored within this context, where most authors have focused on one particular governance level.

“Government as a Centrifugal Force: Access Regulation and the Development of Internet Exchange Points”

ABSTRACT. Internet Exchange Points (IXPs) are vital infrastructures which allow the different networks comprising the Internet to exchange traffic. Internet traffic from countries without local IXPs will need to traverse expensive international links, consequently inhibiting their national Internet ecosystems. Case studies have shown that IXPs significantly lower the cost of Internet access and enhances its quality, however there is no scholarly literature explaining the conditions that give rise to active IXPs. Some governments are considering regulation that forces networks to interconnect through IXPs but it is not clear whether such intervention is warranted in this historically unregulated arena. In this paper, I explore a more indirect role for regulation: enhancing entry and competition in Internet access and backhaul markets. Specifically, I test the hypothesis that the presence of access regulation and mandated infrastructure sharing is associated with a greater likelihood for a country to have at least one active IXP. I analyze cross-country data as well as report on the case of the Philippines.

11:00-12:30 Session 6B: Participation and accountability in transnational and comparative perspectives

Chair: Johan Wolswinkel

Location: Cz 117
Regulation Beyond Borders: Explaining Variation in Transparency of Transnational Regimes
SPEAKER: unknown

ABSTRACT. Transnational regulation has become a central part of economic, political and social life, whether it targets ‘blood diamonds’, the depletion of fish stocks in international waters, or labour standards for textile workers. Despite concerns being expressed about the governance, legitimacy and transparency of transnational regulatory regimes, there has not yet been a systematic attempt to develop a large-N study of these regimes. Focusing on the key challenge of transparency, the proposed paper builds on a new dataset of transparency practices of 150 transnational regimes. Addressing the question why some regimes are more transparent than others, we particularly explore the role of stakeholder involvement in the governance of these regimes, controlling for factors such as regime age and capacity, policy sector, and type of regulatory approach. Thus, this study provides a new approach towards the study of and novel insights into the legitimacy of governing arrangements that increasingly affect economies and societies across the globe.

How can third parties make a difference in a public network environment?

ABSTRACT. The expanding role of non-state actors in regulatory processes seems to be increasing because of the withdrawal of state regulatory institutions (Grabosky, 2013). But the role of non-state local third parties and how they contribute to a horizontal dialogue with an organization’s board is understudied. Therefore, this paper investigates the relationship between the interests and preferences of local third parties and the extent to which local semi-public institutions take these interests and preferences into account. Especially in education this is a relevant topic to study, where there is a variety in school boards responsiveness to interests and preferences of third parties (e.g., Ezzamel et al, 2012).

This leads to the main research question: In what circumstances are non-state third parties capable of influencing and/or regulating the board of Dutch schools?

After reviewing the literature on agency and institutions, regulation and power, and third parties as non-state actors, we present our empirical study. We analyze the views and interests of third parties and how they attempt to influence school boards, with what effect. We also identify to what extent these influences strengthen or weaken regulation and interventions from the Education Inspectorate.

References - Grabosky, P. (2013). Beyond Responsive Regulation: The expanding role of non-state actors in the regulatory process. Regulation & Governance, 7(1). - Ezzamel, M., Robson, K., & Stapleton, P. (2012). The logics of budgeting: Theorization and practice variation in the educational field. Accounting, Organizations and Society, 37(5).

Contact information: - Marianne van der Veen, PhD candidate Vrije Universiteit Amsterdam and senior inspector at the Education Inspectorate - Email: - Telephone: +31644676539

At the intersection of rights and regulation: Indigenous governance of coastal marine areas in Australia

ABSTRACT. In 2001, the Australian High Court recognised Indigenous native title rights to the sea. The Indigenous applicants in that case supported their claim with evidence that they 'have traditionally thought of the sea to the horizon as being under their control' and that their sea estate extends 'as far as the naked eye can see' or 'as far as the eyes could carry' (paragraph [368] of Commonwealth of Australia v Yarmirr (2001) 208 CLR 1). The High Court’s recognition was tempered by other competing rights to the sea – the public right to fish and navigate and the international right of free passage. Yet, these limited legal conceptions of the sea are just one part of the marine regulatory space. The focus of this paper will be the relationship between regulatory space, as a lens in which to view ‘law’, rights and regulatory governance, and the notion of place in legal geography. Indigenous organisations in particular places are, in fact, using a variety of tools to govern their ‘sea country’ (marine estates). In doing so, they are interacting with a wide range of other actors in the space, such as the State (in Australia, both federal and State/Territory), commercial fishing and tourism operators and recreational users. Regulatory space can provide us with a way to disrupt definitions of law and map participation of actors. This research is part of a broader empirical project. At the time of the conference, the researcher will have finished conducting interviews in remote areas of Australia.

11:00-12:30 Session 6C: The Regulation of Corporate Crime (II): Reporting and Detecting Practices as Regulatory Response to Corporate Crime

Chair: Paul Almond

Location: Cz 110
Motivations for reporting organizational misconduct by professional bystanders

ABSTRACT. Systematic and serious business offenses are almost witnessed in some form by employees, local residents, customers, competitors, accomplices or other parties. Scholarship has mainly focused on whistleblowers: insiders who are directly part of or involved in the offending behavior. This study focuses on external reporters, namely bystanders who maintain a professional relationship with a company. These could include suppliers, customers, competitors and (external) accomplices. Because this group differs from whistleblowers; the name  ‘bellringers’ has been suggested for this category.

This study aims to contribute to our knowledge of motivations for reporting, with existing insights from research on internal whistleblowing as a starting point. Building on the existing literature about whistleblowing and bell-ringing, this paper will ask: What motivates bystanders who maintain a professional relationship with a company of which they suspect a violation, to report this behavior to enforcement authorities and what are their experiences with the reporting process?

This paper makes use of a file analysis of reports as they are registered with regulatory inspectorates across a variety of fields in the Netherlands, such as food safety; animal welfare; and workplace safety, in order to make a comparison between reporting motivations in various sectors. 

Detecting organizational crime: who pulls the trigger?
SPEAKER: Karen Gussow

ABSTRACT. Inspired by scandals such as horsegate (2013) and the dieselfraud (2015), we discuss how regulatory enforcement agencies detect illegal activities by otherwise legal businesses – i.e., ‘organizational crime’.

Regulatory enforcement agencies (REA’s) are important for detecting organizational crime – generally considered a relatively invisible crime type. They however operate between political and business agenda’s, which creates risks around leniency and capture. To discover organizational crimes, pro-active strategies are necessary, but such agencies typically face heavy resource constraints. The limited existing work about detection practices of regulatory enforcement agencies offers different explanations, building on bureaucratic reputation theory or by making the link between detection decisions and attitudinal settings present at the REA. Other perspectives propagate rational, information based detection strategies. This research paper therefore aims to increase our practical and theoretical understanding of detection processes and refine, broaden or support the current perspectives. We conducted 20 interviews with a mix of managers and field level workers from three Dutch regulatory enforcement organizations (REA), as well as the Public Prosecutor.

The findings show how agenda setting is key in regulatory enforcement, due to (for example) the moral ambiguity surrounding this type of crime and the negative consequences associated with fraud and crime. The studied REA’s have many mechanisms in place to detect organizational crime. They carry out inspections, conduct risk-based analyses to target their activities and improve detection rates, and they have specialized investigative departments that conduct criminal investigations and actively gather intelligence. Still, whether their efforts are successful is impacted on by a number of variables. We theorize that an agency’s receptivity to detecting organizational crime is mediated by its capabilities, attitudinal settings and the nature of the crime. Triggers (indications) of potential crimes are amplified by the extent of external awareness of crime problems or cases.

Strategizing the enforcement of environmental crimes: lessons from the Dutch Environmental Crime Monitor

ABSTRACT. As in many other areas of regulation, most cases of corporate environmental crimes are dealt with at the bottom of the regulatory pyramid and punished by means of administrative sanctions. Only a relatively small number of environmental crimes are handled by criminal investigative authorities and an even smaller percentage of cases leads to prosecution.

In order to strengthen the enforcement of environmental crime and to coordinate and improve intelligence and expertise about environmental crime, the Netherlands established the Intelligence and Investigation Service (in Dutch: IOD) of the Dutch Ministry for Environment and Infrastructure. The IOD was established to investigate serious cases of environmental crime. These include cases with an international dimension and cases that had significant environmental or societal impact.

Yet, finding these important cases and successfully prosecuting those appears to be complicated in practice. In the decision-making process to start a criminal investigation other considerations than the gravity of the case might prevail. In this paper, we focus on the processes behind the selection of and information gathering within cases of environmental crimes.

What is the origin of IOD criminal cases? How are these cases selected? And how does this influence the criminal enforcement process?

These questions will be answered using data from the Dutch Environmental Crime Monitor. The data will be collected by a cross-case analysis of closed criminal investigations into environmental crime of the Intelligence and Investigation Service. This analysis will be complemented with interviews with enforcement officials involved with these cases.

Reporting Suspicious Money Laundering Transactions in the EU: A Crying Wolf Problem?

ABSTRACT. The ‘Crying Wolf Theory’ (Takats, 2011) states that when entities are asked to report suspicious behavior and fined when they fail to do so, that increasing the fine can lead to excessive reporting which dilutes information and reduces overall effectiveness. The analogy here is that in the children’s story ‘The boy who cried wolf’ the boy cried wolf so often as a joke, that his cries became meaningless, also when there actually was a wolf that attacked the sheep he had to watch.

The EU anti-money laundering directive states that banks and other obliged entities (such as lawyers, notaries and casinos) have to report all suspicions of money laundering to a designated institution. Failing to report a money laundering transaction in the EU can be punished with a warning, a fine or even a license revocation or jail time. These punishments can differ greatly between EU Member States. We test the crying wolf theory for reporting money laundering suspicions in the 28 EU Member States in the period 2005-2015. We use panel data on, among others, the number of reported transactions by different obliged entities, the punishments for not reporting and the overall effectiveness of the reporting system, measured with the number of caught and convicted money launderers in the 28 EU Member States. The inverted U-shaped relation between the height of the fine (and other punishments) and the effectiveness of the reporting system allows us to define an optimal punishment regime.

11:00-12:30 Session 6D: The position of consumers in regulatory governance

Chair: Sofia Ranchordas

Location: Cz 118
Changing social regulation in “network societies”: universality and inclusion in Europe (2003-2015).
SPEAKER: unknown

ABSTRACT. The profound changes that have taken place in the last decades, due to the privatization of public monopolies and the commodification of public services, have produced a change in the way regulatory regimes adopt and implement not only economic programs but also welfare programs. This paper aims to contribute to the research agenda on guiding values that drive citizen-welfare regime towards consumer-welfare regime (Righettini, Tonellotto, 2015). We hope to contribute to the discussion regarding the development of social regulatory regimes through the changing of the Universal Service programs in the communications sector by examining a number of EU countries. This paper focuses on the role regulatory agencies play in changing the guiding ideas regarding the inclusion issue within societies increasingly interconnected. Applying computer-assisted content analysis to the annual reports delivered by ten European member states, between 2003-2014, we explored the principal trends in paradigms, ideas and contents of universality and consumer-oriented universal service in Europe. The first section focuses on the analytical framework and contribution provided by the welfare-state literature (Flora, 1986; Esping Andersen, 1990) in understanding regime changes in its transnational and technological dimensions. The second section illustrates certain basic concepts, such as, “universality”, “commodification” and “network society” and intended as a set of ideas regarding goals, practices, interactions, regulatory targets and beneficiaries. We illustrate how the EU directives coupled with the national regulatory agencies define “epistemological borders” and a repertoire of adaptations (Schmidt, Radaelli, 2004) of the traditional notion of “universality” and of regulation of the Universal service in the light of the rapid evolution of communications technology. In the third section, we illustrate our research methods, based on the quanti-qualitative analysis of the annual reports of the national IRAs examined. In the fourth and final section, we discuss the empirical findings and theoretical implications.

Regulatory consumer law
SPEAKER: Kati Cseres

ABSTRACT. As global economic restructuring processes and technological changes expanded consumer markets, public policies rolled back the state’s protective role and shifted regulatory powers to, among others, consumers. Consumer protection is being replaced by so-called consumer empowerment or even consumer responsibilization. The new regulatory architecture de facto positioned consumers as regulatory subjects who actively contribute to market practices rather than as passive recipients of regulatory protection. Consumers became responsible for their own acts and they came to be seen as influential market actors who can directly regulate firm behavior and indirectly influence market performances. Public policies depict consumers as market actors who actively search markets, monitor firms and switch providers and who may even drive out dishonest, incompetent firms. In fact, regulators use consumers’ purchasing power and regulatory function as the source of justifying and legitimizing the market processes. In fact, consumers hold a certain responsibility to achieve public policy goals such as competitiveness or sustainability; in the EU they contribute both to EU market integration and to European society. This new ‘regulatory’ role of the consumer is present in various new regulatory architectures in the telecommunications, the energy market, as well as in areas of the emerging sharing economy. This paper will map the building blocks of regulatory consumer law in the EU energy and telecommunications markets and analyze the shift from rules of consumer protection to rules on consumer responsibilization. It will examine whether and how consumer’s responsibility to achieve public policy goals have been implemented in sector specific legal provisions. The paper will tentatively answer the question what the legal implications of this consumer responsibility are and whether it may entail a new form of accountability.

Regulating Retail Banking Service Fees: The Political Economy of Financial Consumer Protection in Turkey

ABSTRACT. This article focuses on the political economy of financial consumer protection in the Turkish context where financial consumer protection used to be interpreted very narrowly only in terms of deposit insurance. The roots of financial consumer protection could be traced back to the formation of the independent regulatory framework the Banking Regulatory and Supervision Agency (BRSA) in 2000 following the local systemic banking crisis. Although the regulatory agency has been persistently receiving complaints about fees, expenses, and commissions charges, the agency did not respond to consumers’ demands until recently. This is observable in annual reports of the agency from 2005 until 2013 during which the agency never mentions financial consumer protection. After the global financial crisis, following the international trend in incorporation of financial consumer protection into the regulatory agenda, the agency seems to be more responsive to consumers’ demands. The percentage of consumers’ complaints about fees, expenses, and commissions charges out of the total number of complaints ranges between around 6 percent in 2003 and 21 percent in 2014. In November 2014, after the legislator passed the reviewed consumer protection bill in 2013, the agency followed with its regulations on this particular subject. Given that information, by looking at interactions between agents, this article seeks to answer several questions. What did lead the agency to adopt financial consumer protection into its regulatory agenda? Why did it take more than a decade for the BRSA to come up with regulations although consumers have been appealing to the agency since 2003? How did these measures come about? What were the roles of the consumer groups, commercial banks, and the regulatory agency? To answer these questions, the essay applies Kingdon’s (1984) multiple streams framework on agenda-setting by using process tracing and in-depth case study method.

11:00-12:30 Session 6E: Regulatory Innovation From the Bottom Up: The Role of Local and Regional Actors, Networks and Institutions in Tackling Wicked Societal Issues

Chair: Martijn Groenleer

Location: Cz 109
Actor strategies in translating regulatory frameworks for successful policy implementation
SPEAKER: Isak Vento

ABSTRACT. Public policy implementation is increasingly organized to meet local needs as a result of the increased complexity of societal problems. In order to attain flexibility and effectiveness in policy implementation, a trend has been to organize public policy as programmes and projects. This is particularly apparent in the regional development policy, or Cohesion policy, in the European Union (EU), which is solemnly designed in programmes and implemented as projects. Simultaneously, governments and the political bodies of the EU have been keen to maintain the governing capacity through specifying regulations and setting strategies and performance goals. The trend of increased governmental interest in steering by various mechanisms entangled in the rationale of autonomy of local actors and networks has been called the new public governance. The question is what effect does the framework of increased regulation, policy strategies and performance goals have on implementing successfully policy action with regard to local needs? This article scrutinizes the meaning of governmental regulation, policy strategies and performance goals for policy implementation of local actors. What effect the governing framework have in implementing the policy is addressed through the experience of local actors during the Cohesion policy programme 2007-2013 in Finland. By interviews of 12 project leaders in implementing the Cohesion policy the experiences are constructed as phenomenological narratives of actor strategies reflecting factors lending capacity to translate the various governing mechanisms into locally beneficial actions. The study finds two distinct strategical narratives of action. The governing framework can be translated into locally beneficial action by actors committed to advance local affairs and with a perception of the policy action in relation to a wider context, thus legitimizing the action. Actors with a narrow scope may find the governing framework restricting the action. The study thus highlights the importance of actors in successful public governance.

An Experiment in Sharing

ABSTRACT. This paper examines two pilot projects that are currently being implemented in Manchester and Leeds in the context of the so-called sharing economy (sometimes also referred to as the ‘collaborative economy’). These pilot projects, which have been initiated by the Westminster government and are implemented by the respective city-regions, seek to determine to what degree innovative sharing economy solutions should be tolerated in and by cities, and also what opportunities these novel business models can bring to local government. As part of the pilot projects, local authorities experiment, for instance, with new approaches to public transport, the replacement of municipal car fleets with car club memberships, a more efficient use of unused space and equipment but also the application of sharing economy principles to public health and social care. The paper examines these urban experiments from a regulatory experimentation perspective and seeks to determine how they fit into this framework. The paper’s overall goal consists in directing direct attention to the prevailing uncertainty regarding the regulatory implications of the sharing economy and to situate the experiments in the context of current decentralization efforts in England. The paper will pay particular attention to the top-down nature of these initiatives as well as to their inherent specificities and review mechanisms.

Dealing with path-dependence and implementation failures in regional policies: some evidence from a bottom-up regulatory innovation

ABSTRACT. Over the last decades, European local and regional institutions are becoming key actors in several policy fields, also facilitated by EU funds specifically dedicated to local and regional policies.􀀁According to some scholars, this growing role of subnational institutions could foster policy innovations and improve policy effectiveness in several sectors. From this perspective, although subnational governments are affected by legal, political and financial constraints of the national level, decentralized policy making is less path-dependent and less subject to the risk of implementation failures than the upper levels. However, empirical studies that clearly address these theoretical assumptions are still lacking. The present paper aims at addressing these two issues by focusing on a recent case of bottom- up policy innovation. Some years ago, within the common national framework of the technology districts’ policy,two Italian Regions (Lombardy and Piedmont) changed the consolidated policy by introducing a new model of public regulation of triple-helix R&D projects. This model has been subsequently adopted by other Regions and introduced in the Research and Innovation National Research Program 2014-2020. The empirical analysis that will be presented in this paper has the aim of addressing why these bottom-up policy innovations did experienced path-dependence problems and implementation failures and how the regional institutions and the local implementation structures reacted to these challenges.

Consolidating Regulatory Authority through Cooperation – A Case Study of the ISO 26000 Standard Setting Process
SPEAKER: Trudie Knijn

ABSTRACT. The contribution will focus on local and regional networks and actors in meeting social and economic needs from a critical theoretical perspective. It will present an overview of various governance instruments regional and local actors apply (bottom up or top down) in meeting these needs, in relation to their categorization of ‘needs’ and ‘the needy’; who are defined as belonging to deserving and undeserving populations, and what are justified and legitimate needs? In addition, it will explore the boundaries between the concepts of solidarity, reciprocity and charity, and what these mean for local and regional governance. it will illustrate these approaches by an analysis of several intersectional case-studies at the crossroad of categories (age, gender, class, ethnicity and religion) and domains (housing, education,health, employment and civic engagement). The presentation is based on our participation in Solidus, a Horizon 2020 financed research project that aims to analyse forms of inter-spatial and inter-categorical forms of solidarity with regard to social citizenship rights (housing, education, health, employment and civic engagement).

Does poverty mean troublemaking? Garib v. the Netherlands and its effects on sustainable urban development
SPEAKER: Carlo Colombo

ABSTRACT. Is an urban policy limiting poor people’s freedom to choose their own residence proportionate with the objective of fighting the decline of impoverished inner-city areas? In a recent case brought by a woman, whose housing permit request was refused on the ground that she did not comply with the conditions laid down in the so-called ‘Rotterdam Act’, the European Court of Human Rights (ECHR) replied positively. To combat segregation and improve the quality of certain neighbourhoods, this bottom-up policy requires people wishing to live in ‘problematic’ areas of Rotterdam to fulfil two criteria, namely to have resided in the city for at least six years and to exceed minimum income requirements. As such, this provision limits de facto the freedom of indigent people to live in metropolitan areas. By considering the policy as a general measure and consequently downplaying its impact on the individual case, the ECHR has concluded that the challenged act is suitable to achieve its main goal of reversing the adverse fate of deprived urban areas. However, the line of reasoning raises some concerns in that it appears to grant the States an excessive margin of appreciation, as well as to imply that people living in poor conditions are per se sources of social problems and a threat to the city environment. The paper discusses the correctness of this decision of the ECHR and of its potential problematic consequences, and explores other possible models that could offer alternative solutions to the challenge of sustainable urban development.

11:00-12:30 Session 6F: Environmental governance and the private sector

Chair: Martino Maggetti

Location: Cz 119
Interactions with the European Union and their Effects on National Climate Policies
SPEAKER: unknown

ABSTRACT. Recent research on climate policy emphasizes the need to focus on national legislation for gaining better insights into collective efforts of climate change mitigation (see, e.g., Jordan and Huitema 2014a, 2014b). Following this call, this paper uses the data of the GLOBE Climate Legislation Study by Nachmany et al. (2014). More specifically, we are interested in the patterns and causes of the adoption of national flagship legislation addressing climate change. Given the European lead in climate policy, we are interested in whether countries that interact more intensely with the European Union are also more likely to adopt such flagship legislation. Thus, we address the following two research questions: Does interdependence with the European Union increase the chances of adopting flagship legislation? What role do different forms of economic exchange such as trade, investments and aid play for this process? What role do other forms of exchange such as communicative action play? By answering these questions, we seek to assess the degree to which interaction with the European Union may help to strengthen the European Union’s leadership in the field of international climate politics. Along these lines, the paper provides an external perspective on the European Union’s strategies for speeding up the process of decarbonization and climate change mitigation. It thereby seeks to improve our understanding of the extent to which the European Union can make a difference in international climate governance. This perspective seems even more important now given that the European Union itself has come under attack by some of its member states for its ambitions in reducing greenhouse gas emissions (see, e.g., Creutzig et al. 2014; Marcinkiewicz and Tosun 2015).

The Use of Research Evidence and Technical Expertise in Policy Development: Governance Mechanisms in Climate Change Innovation
SPEAKER: unknown

ABSTRACT. This paper considers the ways in which different forms of research-based evidence and technical expertise are used in policy development and implementation in the domain of climate change. One key element of how governments attempt to address climate change is hazard mitigation through direct regulation of carbon emissions. The other key element is climate adaptation efforts, which for example, include regulation of land use activities. Both areas, mitigation and adaptation, are information and evidence-intensive processes; governments at any level require a good deal of information in developing policies and programs as well as in implementation and monitoring actions. We investigate how key administrators engage in combinations of evidence and expertise “pulls” (proactively seeking information) and “pushes” (having information provided by external sources). In our examination of European nations and cities, we argue that the acquisition and use of evidence and expertise on climate issues is conditioned by governance mechanisms present at local, national and supranational levels of government. We assess supranational governance mechanisms, such as E.U. rules on pollution abatement and structures like the Emissions Trading System; national-level governance mechanisms (such as basic institutional authority arrangements in federal or unitary systems) and micro-level mechanisms (such as the design of a set of mitigation or adaptation programs) and their relationship to evidence acquisition and use. Understanding that relationship is one key to understanding how governance mechanisms relate to policy and program innovation, as mediated by the ways in which evidence is utilized. We make this assessment across different European countries that offer national level institutional variation, such as the United Kingdom, Germany and Sweden. From there, we process trace the climate mitigation and adaptation efforts of large, metropolitan areas within each country to draw out important variables at each level of governance.

Rethinking Regulation in Southern contexts: Exploring ‘regulatory cultures’ in the water sector in India

ABSTRACT. As part of the donor driven process of regulatory diffusion, independent regulatory agencies have become part of the institutional landscape of several countries in the global South. However there are marked differences in their constitution and nature of operation, and the way they are conceptualised. This paper analyses one such case in the Indian water sector. In 2005, the Indian state of Maharashtra launched an ambitious reform programme to establish an independent water regulator, to set tariffs and entitlements to water, for judicious water allocation in the state. The establishment of the regulator, first of its kind in the Indian water sector, invited much attention from policy makers and civil society organisations after which several Indian states have followed Maharashtra’s footsteps. To date, however, the fate of the Maharashtra water regulator remains nebulous and ambivalent. From having been described as an ‘import from above’, to the contestation around the very role of the regulator and meaning of regulation in the water sector, the idea and the institution faced stiff resistance.

This ‘regulation through reforms’ not merely raised questions about the process(es) of regulatory diffusion, but also larger questions about the analysis of such institutions against the institutional and political culture of the developing South. This paper analyses the evolution of the independent water regulator in Maharashtra against the backdrop of the nature of the Indian State in the water sector. It looks at the networks of contestation and collaboration that came to be formed across business, farmer lobbies, civil society and bureaucracy, and argues that what may be thinly understood as resistance is an agency of the Indian State embedded in specific regulatory cultures. Through this case study, the paper conceptually develops on the concept of regulatory cultures, which may provide a lens to analyse regulatory institutions in Southern contexts.

11:00-12:30 Session 6G: Regulating artificial reproduction in Europe: looking for similarities and differences

Chair: Heleen Weyers, Volker Lipp & Erich Griessler

Location: Cz 122
Regulating artificial reproduction in Austria


Regulating artificial reproduction in the Czech Republic

ABSTRACT. The regulation of assisted reproduction in the Czech Republic is relatively liberal: unlike in other European countries, all techniques of ART are allowed, publically accepted and widely used in the Czech Republic (IVF, ICSI, assisted hatching, PGD, donation of sperm, eggs or embryos - within particular age limits and with the guarantee of donors’ anonymity). The wide range of procedures allowed, accessibility and anonymity of donors, together with high success rates and low prices of treatment attract many foreign couple who come to the Czech Republic to undergo infertility treatment (mostly for the treatment using donor eggs). Surrogate motherhood is not allowed, since Czech law considers only the woman who gave birth to a child being its mother. The infertility treatment in the Czech Republic is reserved only to heterosexual couples where women are 22 – 49 years old. The attempts to change this legislation and open the assisted reproduction to the single women or women outside the age limit were not successful, mainly because of the criticism of conservative and catholic politicians. However, surrogate motherhood is practiced informally – as a series of steps that are legal. Similarly, the assisted reproduction can be accessible for single women, fulfilling the only legal condition – the signature of prospective father (as there is no investigation of the type of relationship).

Regulating artificial reproduction in Germany
SPEAKER: Sven Geyken

ABSTRACT. In Germany, ART is mainly regulated by the Embryo Protection Act, a criminal law statute prohibiting some artificial reproductive techniques, or their use for some purposes which are regarded as inacceptable, by the general rules on medical interventions, and by the family law rules on parenthood, both contained in the Civil Code. Furthermore it is influenced by other federal and state laws, and also by the guidelines and directives of the German Medical Councils which are highly relevant in practice but are mostly not binding legally. According to these rules artificial reproductive techniques can be legally applied as long as they are neither explicitly prohibited by the Embryo Protection Act nor effectively barred indirectly by other legal requirements. Prohibited are those forms of ART where l the egg cell, the gamete, or the embryo is intended to be transferred to another woman in order to avoid a "split" motherhood where the legal mother is different from the genetic mother. As a result e.g. egg donations or surrogacies are outlawed. In this context it has to be pointed out that in German law the legal mother of a child is the woman who gives birth to it. The “genetic motherhood” is irrelevant for the legal motherhood. Effectively barred, for example, is the use of sperm donated by an anonymous donor since all persons involved in ART have to respect the right of the child to know her or his genetic father, and will be liable for violating it by granting anonymity to the donor.

Regulating artificial reproduction in Italy

ABSTRACT. In Italy access to reproductive health care and technologies is regulated under the Law n. 40/2004. Despite it has been conceived as “a reasonable compromise” between different and opposite interests by the legislature, the Law has been judged partially “unconstitutional”. According to the Italian Constitutional Court, in fact, is “almost incongruent with the same scope pursued by”. In particular, in its judgment n. 162/2014 of June 2014, one of the central point under scrutiny was the prohibition, under the law, to have access to “etero-technologies”, guarantying the reproductive health rights of parents, in cases of grave infertility of one of both of them. At the European level, the European Court of Human Rights (ECtHR) had the opportunity to deal with similar issues also in cases concerning Italy as respondent State. The present proposal aims, inter alia, to: 1) present a general background of the Italian legal framework and its evolution in the light of Constitutional Court decisions; 2) pay attention to the Constitutional Court judgment declaring the unconstitutionality of the law 40/2004; reflecting on practical consequences on the identification of responsibilities between different authorities involved into the distribution of services both at local and central level; 4) examining the contextual jurisprudential address of the ECtHR looking for similarity/divergences of view between national and European judges in relation to access to reproductive health care; 5) looking for possible modification of the national law in the light of Constitutional and International obligations of the State related to access to health care and reproductive technologies.

Regulating artificial reproduction in the Netherlands
SPEAKER: Heleen Weyers

ABSTRACT. In the Netherlands artificial reproduction is regulated in three different laws and many informal regulations. The essence of the laws is that clinics are prohibited to work with anonymous donors, that IVF and embryo transfer are both legal, as is non-commercial surrogate motherhood. The laws appear rather instrumental, that is: there is hardly any value to recognize other than the importance of good administration. Furthermore, there are no general restrictions on the persons who can receive the treatment and no references to goals as ‘the best interest of the child’. This pragmatic view is reflected in the fact that, up to now, the Netherlands is the only country that has tried to map and analyze the effects of laws regarding ART. The evaluations show that doctors and other norm addressees comply with the laws. This conformity is not surprising as doctors and their organizations have had considerable influence on the regulations.’

11:00-12:30 Session 6H: When the Regulatory State Meets the Welfare State (I)

Chair: Avishai Benish & David Levi-Faur

Location: Cz 008
Welfare, Regulation and Democracy: A Re-Evaluation of Ireland Drawing on the Irish State Administration Database
SPEAKER: Colin Scott

ABSTRACT. Changes in the delivery of public services in the industrialised countries over the last forty years have profoundly changed the ways for delivering and thinking about welfare state provision. For some the shift from welfare state to regulatory state indicates that priority is being given to markets and market failure over traditional welfare concerns with redistribution. Such an analysis leads to concerns about a loss of democratic control. For others, the sharpening of public policy institutions and instruments associated with regulatory governance offers the opportunity to deliver public services in a manner which is both more transparent and more efficient, enhancing outcomes, but without deviating from traditional goals. Central trends internationally have included the separation of delivery units from policy functions and the establishment of free standing regulatory agencies. On this view the instruments and institutions associated with regulatory governance, alongside direct provision and transfers, are increasingly important to the effective functioning of the welfare state, what David Levi-Faur (2014) refers to as ‘the polymorphic welfare state’. Examining the experience in Ireland, the story is distinctive in a number of ways. First, the apparatus of the welfare state developed less fully in Ireland than in many European states. Second, and relatedly, dependence on non-state providers has been and remains a central feature of public service provision. An analysis of the changing shape of state institutions since 1922 shows that distinctive delivery units and regulatory bodies pre-dated independence and have been developed since that date. The provision and oversight of welfare state services in the past thirty years have included a degree of fragmentation, but also some consolidation, particularly in the health area. The changes in delivery have sustained a pattern of providing services through distinct units, both public and private. The changes in regulatory apparatus are more distinctive. Arguably the assignment of regulatory functions to free standing agencies has supported clearer specification of the expectations of service providers, systemised monitoring, and created at least the possibility of more stringent enforcement. Both public and private providers are likely to find regulation of welfare provision more demanding than it once was. Thus, in Ireland there has been to a degree, evidence of a polymorphic welfare state throughout the twentieth century, and an intensification of direct provision, transfer and regulatory components since the 1980s. I conclude by evaluating these changes from the perspective of democratic governance, identifying risks, but also indicating how fragmented arrangements for delivering and regulating welfare state services may be interpreted as enhancing democratic engagement. Paper

European welfare states and varieties of risk regulation

ABSTRACT. In 2007, the UK finally won a protracted battle with the European Commission (EC) at the European Court of Justice over the UK’s approach to occupational health and safety (OHS) regulation. That battle was over the UK explicitly sanctioning risk-cost trade-offs by stipulating that workers should only be protected against harm ‘so far as is reasonably practicable’, in contrast to the ambitious goals of safety mandated by many continental European countries. For some, this contrast in regulatory approaches reflects cleavages identified in the risk regulation and Varieties of Capitalism literatures, which suggest that workers are better protected in the precautionary, co-ordinated-market economies of continental Europe than in risk-taking Anglo-saxon liberal-market economies. Our analysis of the UK, Netherlands, Germany and France, however, challenges those claims. We show that the regulatory conflict was less about worker safety than about the intersection of common and civil law regulatory traditions with the conflicting logics and instruments of Bismarkian and Beveridgean welfare regimes. From the perspective of Bismarkian member states, the UK’s common law regulatory approach appeared to undermine their social insurance regimes, which ensured that their injured and ill workers received healthcare and disability benefits. From the UK’s Beveridgean perspective, however, the civil law regulatory approach of many continental member states made little sense in the context of its tradition of socialised taxpayer-funded disability benefits and healthcare services. Our analysis supports Levi Faur’s (2014) argument that ideas of the ‘regulatory state’ and the ‘welfare state’ are routinely, but often mistakenly, presented as ‘alternative and competing forms of state organization’, each with its own logics, instruments and sources of legitimacy. Instead, he argues that regulatory and welfare regimes are better thought of as intertwined and ‘mutually constitutive’, in which regulatory instruments can serve to secure welfare goals. We go further, however, to show how the design of regulatory regimes can be intimately dependent on the design of welfare regimes. Indeed, we use the example of OHS regulation to show how the organisation of welfare regimes is a significant independent variable that acts as a key‘boundary condition’ for regulation, shaping its scope, goals and instruments.

Regulating for Financial Welfare?

ABSTRACT. Along with the rapid growth of financial markets in countries around the world, there has been a sharp increase in the supply and demand for credit and other financial products and services. This process is directly linked with policies favored by capitalist democracies which often aim to expand consumer options and promote market competition as a means to economic growth. Along with the expansion of credit markets, many countries have seen the advent and growth of financial information markets, as a means to increasing competition between lenders and correcting market risks associated with moral hazards and asymmetrical information. Thus, in an attempt to maximize their profits and control over individuals in society, market actors have created mechanisms that collect, rate and trade financial information about private citizens. In this aggressive and, at times, oppressive regime, citizens are labeled and rated in the name of minimizing financial market risks. However, this often comes at the expense of the social inclusion and opportunities of certain populations.

11:00-12:30 Session 6I: Mutual Recognition and Mutual Trust: Preconditions, limits and diversity

Chair: Tony Marguery

Location: Cz 006
Mutual recognition as a mechanism of horizontal federalism in the EU

ABSTRACT. The objective of this paper is to study the position of MR within the constitutional framework of the EU. The central research question is how MR shapes ‘horizontal federalism’ - a concept that may be adopted from US constitutional doctrine (Erbsen 2008) - in the EU. More particularly, it will address two issues: - MR is generally accepted as a ‘third way’ between EU centralisation on the one hand and Member State discretion on the other. In practice, however, MR legislation combines both a degree of harmonisation and a measure of national discretion. In areas of the Internal Market, MR is often linked to a certain level of harmonisation. In the Area of Freedom, Security and Justice a comparable commonality results from the influence of fundamental rights protection. Oppositely, MR recognition instrument may allow EU Member States to make exceptions or to otherwise diverse from the principle of MR. The issue is, thus, how MR relates to ‘vertical federalism’ and to Member State control to understand its meaning as a mechanism of horizontal federalism. - the concept of horizontal federalism presupposes the regulation of the relation between the EU Member States. To what extent does MR actually function as such? Does it include cooperation between MS authorities or is it limited to the application of foreign laws?

The paper builds on the two strands of research mentioned above and will include an analysis of MR legislation in the areas of criminal law, migration law and internal market law. It will also address how MR relates to existing constitutional principles in the EU such as subsidiarity and respect for national constitutional identities of the Member States.

Regulatory Trust in EU Free Movement Law – Adopting the level of protection of the other?

ABSTRACT. Is Mutual Trust the raison d’être of EU law? What is the true nature of Mutual Trust after Opinion 2/13? And what is the relationship between Mutual Trust and Mutual Recognition (a concept akin to internal market law). The Opinion 2/13 transpires references to Mutual Trust. In principle, Mutual Trust requires each Member State to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law. For the European Court of Justice, even though EU law imposes an obligation of Mutual Trust between those Member States, accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law. The logic of Mutual Trust (based on automaticity) is here clearly used as an argument against the accession to the European Convention of Human Rights. The concept of Mutual Trust, in Opinion 2/13, appears to go beyond its usual sense, reaching a kind of constitutional status. Will this change of status affect EU fundamental rights and internal market law?

Mutual trust and mutual recognition in EU migration law: different goals and actors, same trust? An analysis from the perspective of the case-law of the CJEU and the ECtHR

ABSTRACT. Mutual trust and mutual recognition are considered not only as the cornerstones of judicial cooperation between EU states (for example the European Arrest Warrant), but also as basis for the implementation of different EU migration laws such as the Dublin Regulation and the Visa Code. This contribution will describe different instruments of EU migration law, involving the mutual recognition of national decision making (short term visa, long term resident status, citizenship, entry ban) or trust in each other’s national laws or systems (Dublin). These instruments include mutual recognition of both 'positive decisions' or 'negative decisions' for the individual. In this contribution, the conditions and exceptions applying to these different mechanisms of trust will be compared, taking into account the availability of legal remedies for the individuals concerned and the powers of national courts to assess the (non-) application of mutual trust. These findings will then be assessed from the perspective of relevant case-law of the European Court of Human Rights and the Court of Justice, including the opinion 2/13 of the latter court. Analysing the criteria established by the European Courts, this contribution will investigate whether these judgments offer sufficiently clear and coherent criteria to assess when exceptions to mutual trust are possible or even compulsory and whether they enable national courts to make the right balance between on the one hand the protection of fundamental rights and on the other hand the more general interest of mutual trust.

It will be submitted that in order to make the right balance, a clear view on the general aim or interest of mutual trust is required. What is the background and aim of mutual trust, at which different levels in the EU does it play a role? Only by understanding differences in aims and scope of applicability, conditions for mutual trust and mutual recognition, but also the necessity of exceptions can be defined.

Mutual trust in EU criminal law: dream or reality?
SPEAKER: Tony Marguery

ABSTRACT. In criminal matters, mutual trust is the foundation of the principle of mutual recognition on which the European Union judicial cooperation is based. For example, in the context of the European Arrest Warrant (EAW), the Court of Justice consistently stated that the refusal to execute a decision implementing mutual recognition is only possible in application of one of the refusal grounds provided for in the EAW, while acknowledging that Member States are bound to respect fundamental rights. However, the recent Directive on the European Investigation Order (EIO), unlike other instruments based on mutual recognition, goes further and provides for a formal fundamental right-based refusal ground.

Considering the fact that the respect for fundamental rights works as a pre-condition in the execution of the principle of mutual recognition in criminal matters, similarly to mutual trust, the question arises thus whether, and, if so, to what extent, a normative interpretation of mutual trust is compatible with the protection of fundamental rights within the European constitutional pluralistic framework. It is therefore essential to analyse whether this interpretation can be reconciled with European constitutionalism, by assessing the links made by the Court of Justice and the European Court of Human Rights (ECtHR) between mutual trust, the existence of exceptional circumstances and the respect of EU fundamental rights by the Member States when implementing EU law. In other words, when can a Member State authority decide to check if the issuing State has observed fundamental rights, and consequently, refuse to execute the foreign decision?

This contribution will first compare the case law of the Court and of the ECtHR in relation to the protection against torture and degrading treatment affecting the Asylum policy, and subsequently discuss the extent to which the test of the two courts can be transferred to mutual recognition of decisions in criminal proceedings.

Mutual Recognition and Mutual Trust in the Internal Market

ABSTRACT. The principle of mutual recognition has long been established as a corner stone of the European internal market. Ever since the landmark judgment in Cassis de Dijon, it is clear that Member States must recognise each other’s rules regarding product requirements as binding, subject to certain public interest exceptions. Similarly, the Member States must, as a rule, recognise diplomas granted by another Member State. Accordingly, the principle makes an essential contribution to the establishment and functioning of the internal market, as it frees economic operators from the burden of having to comply with various national standards, while at the same time protecting the Member States’ core public interests.

The principle of mutual recognition equally plays a pivotal role in the creation of the Area of Freedom, Security and Justice (AFSJ), as an area “without internal frontiers”. In this context, however, the principle, first and foremost, contributes to the effective exercise of public power by the Member States rather than the freedom of economic operators. Crucially, in the AFSJ, mutual recognition presupposes mutual trust. As the Court of Justice explained in Opinion 2/13, the principle of mutual trust requires that the Member States must consider that all other Member States, save in exceptional circumstances, comply with EU law.

There has been a long academic debate regarding the legal status of the principle of mutual trust. In Opinion 2/13, it would seem that the principle was recognised by the Court of Justice as a constitutional principle in its own right, which is judicially enforceable. This begs the interesting question whether this constitutional principle will have an impact outside the AFSJ and will have spill-over effects in other areas of EU law. This paper analyses this question by focusing on the internal market, and more in particular on the free movement of persons.

11:00-12:30 Session 6J: Trends of Regulatory Governance in Mexico

Chair: Paolo Salerno & Jorge Culebro

Location: Cz 123
Performance regulatory body health in Mexico. Need to give it greater powers of autonomy and institutional coordination

ABSTRACT. An important step in the modernization of the government apparatus have been the creation of regulatory agencies in various production areas are widespread in the last decade in Mexico. The rationale for their design and implementation has been justified in terms of having specialized agencies to give greater certainty and effectiveness to a sector of the economy that the public authority has considered of special interest either on the economic importance that this represents either the need for the state to regulate so efficiently especially important institutional mandates as life or the natural environment. In the case of health it has created the agency called The Federal Commission for the Protection against Sanitary Risk (COFEPRIS), which has among its mandates the protection of human health through the regulation of production, delivery and monitoring the items to which humans are exposed as water, medicines and medical care, an issue which, despite its importance has been neglected by social science research. In this context, it is proposed that the design of the regulatory body in health in Mexico is progress in protecting health, but that is limited by its own structure scope, since its decisions are far from the immediate and autonomous an organ so should be, and therefore it must adapt to an ambitious and innovative design on one side allowing it to fulfill its mandate and on the other create conditions of fair economic development for regulated industries. Important evidence is clear from the series of empirical to demonstrate that budget analysis.

Troubled Waters: A Paradigmatic Clash in Water Law Reform in Mexico and its Regulatory Consequences

ABSTRACT. Mexico is at the threshold of a substantial reform of its water regulatory regime. For many months now and, to be expected, for many more to come, the government initiative in the matter has aroused an intense debate. The government draft reasonably urges for a reform that enhances investment in infrastructure, a more rational use of this valuable resource, and an improvement, both in quantity and quality, of the public access to it, but the “technicalities” of this carom shot are far than convincing for many. The debate about this reform has been intense and, in many aspects, robust and sophisticated. Nevertheless, it is possible to identify in its background a sort of “paradigmatic clash” between three political, theoretical and rhetoric positions that precludes consensus. First, an “utilitarian” paradigm focuses on the maximization of the social (economical) value of water thru its reallocation to more valuable uses, privileging, e.g., industrial and intensive agricultural uses and, consequently, proposing large infrastructural projects for water accumulation and displacement. Second, a “soberanist” paradigm substantially argues for the continuation of a public regime of water management and, consequently, opposes to any form of private participation in the area with the side effect of ignoring the alarming incapability of government to provide water as a public service. Last, a “rights oriented” paradigm underlines individual and collective rights to access to clean water and environment conservation and, consequently, is placed on the front of an “economicist” perspective, but often lacks a comprehensive vision of the “macro” social and demographic conditionals of public policy in this complex matter.

Of course, none of the real participants in the current “water debate” in Mexico identifies him/herself univocally with one and only one of these paradigms; it would be rhetorically unacceptable. But, at the end of the day, when the debate comes down to policy strategies and/or specific regulatory mechanisms, idiosyncrasies emerge and the paradigmatic clash comes to light. This paper argues that this paradigmatic clash is a relevant obstacle to a sound policy and an effective regulatory regime of water in Mexico, and that, consequently, it has to be recognized and analyzed in order to prevent undesirable influences on the current redefinition of policy and legal framework in this area. In this paper, I will demonstrate that this “clash” has three intertwined negative effects in the debate that may eventually determinate transcendent public resolutions for the worse. First, it overlooks the interdependence between goals and instruments purportedly hold by the distinct paradigms, and hides the potential effects of the realization of the goals of one paradigm on the values contained in other paradigmatic approaches. Second, as a consequence of such systemic overlooking of the multiplicity of goals and values involved, an oversimplification of the context and the set of conditions (institutional and technical) for an effective reform in this matter takes place, neglecting the distributive, demographic, territorial, ecological, etc. impacts of the alternatives in question. Third, as a result of the previous two perverse effects, a third collateral effect of the clash consists in a radical “deflation” of policy and regulatory alternatives, which undermines the possibilities and the eventual importance of institutional imagination in this transcendental area.

What kind of regulatory state in Mexico? Understanding polymorphic policy regimes in the Global South

ABSTRACT. Regulatory trends in Mexico during more than two decades now seems to be related to the so-called idea of the Majonian regulatory state: agencification of policy sectors previously rule by ministerial departments with a diversity institutional designs in terms of autonomy (technical, political and financial) and a rule-making regulatory style: governing market through rules rather than public service provision. However, along with the institutional transformation of some sectors could be related to the regulatory state model, some sectors maintain o reintroduce developmental strategies through institutional designs better understand within the framework of the developmental state, therefore is it Mexico a regulatory state or a developmental one? Following this question I develop a theoretical framework to understand state economic intervention in the context of the Global South and, in particular, in Mexico, that is a framework based on the idea of polymorphic policy regimes where the regulatory and developmental state instruments meet within countries, across sectors and within sectors. 

The 'Transitional Continuum' of Contemporary Mexican Regulatory Governance

ABSTRACT. Transparency and accountability have been very important topics in the Mexican public administration during the last decades, as a part of diverse attempts of State modernization that have been promoted by different federal governments. In this paper, we discuss to what extend regulatory agencies have been able to move beyond the general trends in the public sector regarding transparency and accountability improvement. We expect that regulatory agencies were capable to develop its own agenda as to the effective introduction of accountability mechanisms in their activities, using these mechanism strategically as a way to gain more autonomy and independence vis-a-vis other public and private actors. The role of private and public audiences in activating accountability mechanisms constitutes a key is sue, as well as formal and informal dimensions of accountability mechanisms. Three Mexican regulatory agencies are considered here as case studies.

14:00-15:30 Session 7A: Regulating financial accountability in the EU multilevel system

Chair: Koen Verhoest

Location: Cz 116
Value for money? Financial accountability of the European Stability Mechanism (ESM)
SPEAKER: David Howarth

ABSTRACT. Established at the height of the eurozone sovereign debt crisis, the intergovernmental European Stability Mechanism (ESM) has potentially considerable influence over decisions on bailing-out, bailing-in and resolving European banks. Formally, the ESM is an international organisation. At the same time, it depends on and closely interacts with at least two EU institutions — the European Commission and the European Central Bank — and one international organisation, the International Monetary Fund. The ESM is thus embedded in both the eurozone system of economic governance and the international financial system.

This paper explores financial accountability mechanisms applicable to the ESM. Our primary goal is to identify accountability standards appropriate for the ESM and conduct an assessment of current accountability practices. As an international organisation, the ESM’s financial accountability to both EU institutions and national parliaments is limited. Hence, we also examine whether there are any important accountability gaps, given that the ESM is funded by liberal democracies and embedded in the eurozone governance framework.

The European Ombudsman and financial accountability in the EU

ABSTRACT. Ombudsman institutions are considered as mechanisms of ‘administrative accountability’ (Bovens 2007: 456). The office of the European Ombudsman was created by the Maastricht Treaty, with a focus on maladministration in the activities of EU institutions, bodies, offices and agencies (Article 228 TFEU). This includes supervision over the award of tenders and grants (e.g. by the European Commission) or supervision of the authorities responsible for financial accountability in the EU, such as OLAF and the European Court of Auditors. In this context, the purpose of this paper is to shed light on the activity of the European Ombudsman as a mechanism of financial accountability in the EU. The paper will cover, inter alia, relevant (and general) provisions of the European Code of Good Administrative Behaviour (which includes the public service principles that should guide EU civil servants), and cases aligning with the Ombudsman’s general approach with regard to tenders and grants. While the institutions (or the awarding committees) enjoy broad discretion, the Ombudsman’s role is to check the procedural rules and the correctness of the facts, ‘that there is no manifest error of assessment or misuse of power’, and that the requirement to provide reasons were complied with (Annual Report 2012: 45). The paper will also address the interconnected theme of the Ombudsman’s understanding of the principle of sound financial management of EU funds, and inter-institutional issues emerging from the Ombudsman’s supervision over other EU institutions or bodies.

The regulatory framework of financial accountability in the EU: interaction and overlap between legal and internal rules, professional standards and discretion
SPEAKER: Hartmut Aden

ABSTRACT. Financial accountability is closely related to legal rules, e.g. to the legal framework for the European Court of Auditors (ECA) and for the implementation of the EU budget laid down in the Treaty on the Functioning of the EU (TFEU), and to the regulations governing EU funding programs. However, even if this legal framework at first view seems to be dense, the practical work of financial accountability institutions is not legally regulated in detail. Audit institutions have considerable discretion when it comes to defining their audit work. For example, legal rules do not govern how to select the programs and projects to be audited more closely and how to carry out the audits.

This paper discusses how legal rules, internal rules defined by audit institutions, professional standards and case-by-case discretion interact and overlap in the regulation of auditing and financial accountability in the EU.

14:00-15:30 Session 7B: Accountability dilemmas

Chair: Martijn Groenleer

Location: Cz 117
Accountability challenges in turbulent financial environments: Institutional strategies of Turkish, Mexican and Spanish S&E supervisory agencies
SPEAKER: unknown

ABSTRACT. Most scholarship on accountability has focused on analysing formal-institutional mechanisms. In particular, accountability has been mainly studied as a hierarchical control mechanism (‘upwards’ process) rather than a horizontal and/or downwards process involving different actors. The article aims to analyse formal and informal accountability mechanisms of national regulatory agencies, and seeks to map out their upwards, downwards and horizontal accountability processes in diverse political settings. To this purpose, this study assesses the shortcomings (‘accountability failures’) in formal and informal accountability practices within stock market regulatory agencies in three countries with different institutional conditions: Mexico, Turkey and Spain. In doing so, the article seeks to identify network relations among actors involved in security market policies: upwards accountability processes between agency officials and its political principals (mainly the executive and the legislative); horizontal processes between agency actors and other public institutions (such as other independent authorities and the judiciary); and downwards processes between agency officials and different stakeholders (such as firms, consumers and civil society organisations).

The Rise of Polycentric Regulation of International Finance, and Implications for the Resistance Against State Hegemony

ABSTRACT. The institution and continuous evolution of the international financial regulatory framework, initially under pinned by the Bretton Woods Agreements, has attracted simultaneous academic and political projects that have aimed at contesting US and European regulatory hegemony, and usher in democratic regulatory collaboration at the international level. Contestation of this hegemony, especially by post-colonial States currently referred to in international finance as Emerging Markets and Developing Economies (EMDEs), has been underpinned by emergent (and for others, ill-fated) concepts such as the New International Economic Order, International Law of Development (ILD), the Right to Development, and Global Administrative Law (GAL). Developments in the international political economy, and the global financial markets, including the emergence of Rising Powers coalescing around the BRICS States, and increasing regulatory influence of economic doctrine, financial markets, financial technologies, and transnational merchant law, have complicated the prospects of these resistance projects. Indeed, both academic and political projects in this effort have under-estimated the hegemonic ambitions of Rising Powers such as China and Brazil, dynamics of economic diplomacy between EMDEs and the US and EU hegemons, and the effect of non-State regulatory devices such as economic doctrine, transnational merchant law, financial technologies, and the financial markets, in altering the balance of power in international financial regulation.

This paper reviews the evolution of new sites of polycentric regulation in international finance,including economic doctrine, financial markets, financial technologies, and transnational merchant law and their impact on the democratization project of international financial regulation.

Contesting new EU socio-economic governance: exploring legitimacy challenges by member states
SPEAKER: Sonja Bekker

ABSTRACT. Post-crisis EU socio-economic governance has introduced new features to the coordination process, mainly aimed at better national compliance with EU fiscal and economic targets. Accordingly, these new measures have been labelled as 'stricter' economic governance. Hoever, EU fiscal and economic demands have also had an impact on national social policies, essentially broadening the scope of stricter surveillance beyond economic issues (compare Barnard 2014; Bekker 2015; Clauwaert and Schömann 2012). Reducing public expenditure often results in limiting entitlements in the social domain, and calls for structural reforms mostly entail amending labour law and worker's protection (Schmidt 2014; Suárez Corujo 2014). This has lead to questions about the legitimacy of the EU to interfere in national social policy-making using the backdoor of economic governance (Bekker and Palinkas, 2012) How do countries respond to the increased EU demand to comply with socio-economic reforms and austere fiscal policy? In order to answer this question, this paper analyses EU-level steering as well as the reactions of four member states to EU targets between 2009 and 2014. It includes the interaction between the EU and France, Germany, Poland and Spain, and specifically looks at the topics of pensions, wages and unemployment. The conclusion is that at times the four member states have contested the EU's legitimacy to deal with certain issues. They have also proposed or even implemented alternative policies. Equally, the Commission has changed its evaluation of countries from time to time, coming up with new challenges, for instance, and allowing deadline extensions for reducing deficits. Seemingly its bark is worse than its bite.

Procedural and Institutional Legitimacy in the New Regulatory State
SPEAKER: Karen Lee

ABSTRACT. Regulatory scholars often suggest (implicitly if not explicitly) that procedural and institutional legitimacy hinders responsiveness. They associate it with the mechanisms traditionally used to satisfy these aspects of the rule of law in the centred state – mechanisms that are seen, in part, to have contributed to the failures of ‘command and control’ regulation. However, in this paper, I will assert that procedural and institutional legitimacy and responsiveness, a term which has not been clearly defined in the regulatory literature, are not diametrically opposed concepts. Rather, responsiveness (at least within the sphere of industry rulemaking) has subsumed the underlying concerns of procedural and institutional legitimacy. Consequently, the criteria of procedural and institutional legitimacy in traditional rulemaking - transparency, impartiality, accountability and deliberation - can be transformed into regulatory tools that faciltate responsiveness (and by implication effectiveness).

Section 1 of this paper revisits the underlying purposes of the four criteria of procedural and institutional legitimacy in order to decouple them from the mechanisms that have been thought to satisfy them in traditional rulemaking. It will adjust the precise meanings of transparency, impartiality and accountability. Section 2 sets out the argument that the four criteria (as redefined) clarify the meaning of responsiveness. It asserts that they resonate with the three theories of democracy which have been suggested enable the new regulatory state to normatively ground the instrumentalism of industry rulemaking. It also asserts that they are consistent with the conceptions of society and law that underpin strategies of responsive rulemaking. Section 3 draws on three in-depth case studies of the procedural and institutional legitimacy of industry rulemaking in the Australian telecommunications sector. It identifies indicia that point to when industry rulemaking is responsive to the public interest and the interests of stakeholders.

Legitimacy and effectiveness of regulatory advice of Dutch supervisory bodies

ABSTRACT. The Netherlands regularly finds itself facing shocking incidents that cause Dutch society to wonder whether they could have been prevented by more and better supervision. Examples include incidents in the health care system, financial fiascos in housing corporations and care and educational institutions. Such incidents not only undermine confidence in the sectors subject to supervision, but also harm public confidence in government’s ability to protect public interests. Problems of legitimacy emerge when normative expectations and demands of citizens are not evenly balanced with the capacities and objectives of the supervisory body. There is an intriguing paradox: the struggle to limit supervision in a sector in incident-free periods (give the sector more responsibility, cut down on bureaucracy and expense) versus the tendency to increase it following incidents (expand and intensify supervision, make it stricter).

In order to move from incidents to prevention some supervisory bodies try to improve their reflective capacity (metaregulation). This means for example improving the feedback that supervisory bodies provide for purposes of agenda-setting and policy preparation and evaluation. Some supervisory bodies write policy advices about new legislative proposals or draw up a public “state of the sector” report each year in which they survey and analyse societal trends, opportunities and threats in safeguarding public interests. How can the reflective function of supervisory bodies improve the effectiveness and legitimacy of legislation and supervision?

This paper will analyse the development and consequences of the reflective function of Dutch government supervision for the quality of legislation and the legitimacy of supervision. The paper is based on interviews and policy document analysis. An interesting casestudy will be the regulatory and supervisory response of the Dutch health care inspectorate (IGZ) on the new development of more than hundred health care cooperatives raised by citizens. Will they advice the ministry of Health, Welfare and Sports to develop new, less strict legislation that is more suitable for new entrants or will they still enforce current legislation that is made for professional organisations?

14:00-15:30 Session 7C: Separation of Powers, Delegation, and Regulation

Chair: Sofia Ranchordas

Location: Cz 122
Separation-of-Powers Multiplicity in the American Constitution
SPEAKER: Josh Chafetz

ABSTRACT. Governance requires political power, and, in the American constitutional order, political power is largely endogenous to politics. That is to say, political institutions are engaged in constant contestation in the public sphere, not simply for the substantive outcomes they desire, but also for the authority to determine those outcomes. The written Constitution serves primarily to set the groundrules by which the branches can engage in this fight. This contestation is best understood as a form of constitutional politics, and this paper will explicate and analyze the central features of this form of politics and consider their implications for regulation and governance in the American constitutional system.

The Realities of Temporary Legislation: An Empirical Study on the Use of Temporary Legislation by the Israeli Parliament

ABSTRACT. Temporary legislation is gaining increasing attention in the legisprudence and regulation scholarship (in part, because it is often perceived as a central tool in the “experimentalist governance,” “Smart Regulation” and “Quality of Legislation” agendas). Recent studies have suggested, however, that, in practice, this legislative tool is rarely used. This study – the first empirical study on temporary legislation in Israel – reveals that temporary legislation is in fact becoming increasingly popular in the Knesset (the Israeli Parliament). To give but one example: Whereas a study about the Netherlands has found that between 1985 and 2009, only 85 laws contained a sunset clause, this study reveals that during the same period, the Knesset enacted nearly four times as many temporary laws (324 temporary laws). In fact, from 2010 to October 2015 alone, the Knesset enacted 105 temporary laws.

The study explores (and tries to uncover) the realities of temporary legislation in the Knesset. It seeks to provide a broad, yet in-depth, look on the use of temporary legislation in practice: exploring the prevalence of temporary legislation; the “when and why” of temporary legislation; the “how” of temporary legislation; and the fate of temporary legislation. The study ends by discussing important ramifications of its findings for improving the practice of temporary legislation, for judicial review of temporary legislation, and for the bourgeoning global debate about temporary legislation.

Delegation and Legitimacy: the Case of EU Legislation
SPEAKER: Wim Voermans

ABSTRACT. According to classic democratic theory legislative decision-making presupposes some involvement of the people or their representatives. Their involvement is a prerequisite for the legitimacy of enacted legislation. Most legislatures in modern democracies adhere to this principle but the public, parliaments or bodies of public representatives have to delegate legislative powers. This delegation is explained by the need to reduce the workload, time constraints or lack of expertise and flexibility. Delegation to an agent may also be grounded on the fact that a professional administration is the more suitable actor in terms of expertise and (geographical) location to make better informed, tailor-made and less politicized decisions and policies thus adding to the effectiveness of the legislation. And finally, by delegating to an agent, the principal (the legislator in our case) can avoid taking blame for unpopular policies. On the other hand delegation implies a possible loss of control of the principal legislator and the recipient of the delegated power may abuse it for its own ends – according to delegation theory.

Especially in the EU one can see how the lack of public involvement in technical, delegated EU legislation (secondary EU legislation) proves to be an ever more vulnerable weak spot of EU legislative decision-making. The EU is dependent on law for governing, and needs to resort to specialized secondary legislation even more than the Member States themselves.

This represents a growing problem because the European Union (EU) is built on and predominantly governed by EU law that is enacted in EU-legislation without direct input from the people. In fact more than 75% of EU legislation is currently enacted by the European Commission (EC). This lack of democratic pedigree of EU secondary legislation allegedly causes various legitimacy-related problems at the EU level. With the introduction of a new system on delegated and implementing acts by the Treaty of Lisbon, the EU however aims to address the apparent democratic deficit. This contribution takes up this call and against this backdrop answers the question whether the Lisbon ‘arrangements’ have, indeed, changed ‘things for the better’. It presents a legitimacy review of the post-Lisbon regime on delegated and implementing acts of the last four years. We first look into the concept of legitimacy of EU secondary legislation to assess the post-Lisbon developments. After focusing on the question of whether the legitimacy of secondary legislation has increased since the Lisbon Treaty and in what respect we then turn to the Lisbon institutional and procedural empowerment of the European Parliament in the legislative procedure to see whether it has, in reality, increased the Parliament’s influence and control of EU legislation vis à vis the Council and the Commission. Our findings suggest that the high expectations for improving the legitimacy of EU secondary legislation have not (yet) materialized. Furthermore, facts and figures give cause for doubt as to the feasibility of achieving this objective in the near future.

This paper discusses the various ways the EU as well as other jurisdictions tackle the problem of the growing volumes of delegated legislation and their underlying legitimacy problems.

14:00-15:30 Session 7D: The Regulation of Corporate Crime (III): Critical Perspectives on Regulation as a Response to Corporate Crime

Chair: Judith van Erp

Location: Cz 110
Corporate criminal liability and corporate fines in Finland

ABSTRACT. Corporate criminal liability was imposed in Finland in 1995. With a subsequent reform in 2003 its scope was extended to occupational safety crimes. Today, after several law amendments, corporate criminal liability can be applied to 80 various offences, including forced labour, human trafficking, and many financial offences. Nevertheless, 90 percent of corporate fines are convicted on occupational safety crimes.

In our presentation we will, firstly, describe the political struggle for corporate criminal liability. It took 22 years to materialize in legislation, as Act 743/1995 finally took effective in April 1995. The main impulse for the whole process was the growing significance of both the working class and civil society; the multifaceted, evolving systems of paid work and corporate action; interest in protecting the environment; and the incompetence of the criminal law in dealing with crimes that took place within these areas of life. The core issue of the debate became that of whether jurisprudential principles should be altered according to societal change or whether they were essentially immutable. Nevertheless, even when the doctrinal barriers preventing the law reform were finally resolved at the very end of the process, the political tide changed the course of action.

Despite the fact that corporate criminal liability has been effective in safety crimes for over 10 years, there are hardly any studies examining the implementation of corporate criminal liability. We will also report our results of the data on corporate criminal liability convictions in Finland during 2010-2014 (N=154). With a quantitative inquiry, we have scrutinized the convictions as to find out the characteristics of the cases that do end up in court and convicted. We will examine, among other things, the types of convicted organizations, the circumstances where the crimes occurred, the amounts of fines adjudged and the severity of injuries.

Disciplining the Corporation? Comparing corporate criminal liability legislation
SPEAKER: Steve Bittle

ABSTRACT. Since the early 2000s several western states have enacted criminal laws aimed at holding corporations accountable for seriously injuring and/or killing workers and/or member of the public. For instance, the Canadian government introduced corporate criminal liability legislation in 2004 following the death of twenty-six miners in an underground explosion at the Westray mine, a disaster caused by dangerous and illegal working conditions. Meanwhile, the government of the United Kingdom introduced corporate manslaughter legislation in 2007 in the wake of several high-profile disasters in which workers and/or members of the public were killed as a result of corporate negligence. This paper critically examines the factors that have contributed to the development and enforcement of criminal laws in Canada and the United Kingdom that deal with workplace injury and death. Of particular interest are the assumptions, agendas and relations of power that inform these laws, the factors that help to produce legal categorizations of corporate harm and wrongdoing. In addition to probing the official discourses that shape corporate criminal liability in each jurisdiction, the paper examines the enforcement (or lack thereof) of these laws, scrutinizing the charges and convictions under each legislative scheme. The overall goal is to explore the extent to which the development and enforcement of corporate criminal liability laws challenge and/or reinforce corporate capitalism.

What to do with the Criminal and Harmful Corporation?
SPEAKER: Steve Tombs

ABSTRACT. Corporate crime and harm is widespread and routine. At the same time, efforts to respond to corporate crime tend to be limited to attempts to shoe-horn an anthropomorphised corporation into systems of law and punishment designed to deal with individual offenders, or to single out senior managers or ‘rogue employees’. In this paper, I discuss some of the problems of these approaches, as well as their outcomes in terms of the kinds of sentences that are typically applied on conviction. This contribution then identifies alternative and, I will argue, potentially more effective social responses to such crimes and harms – albeit that these alternatives will need to be pursued alongside traditional criminal justice efforts in the medium term. In considering such alternatives, I explore in particular those which have some practical reference point. In conclusion, I argue that non-penal real utopian alternatives can be pursued, but that a pre-condition of transformative reform is imagining a world beyond the corporation.

Corporate Exceptionalism, Law and Power
SPEAKER: David Whyte

ABSTRACT. This paper analyses the historical development of legal categories that apply to corporations as a series of ‘exceptional measures’ in law that provide corporations with the capacity to commit crime with impunity. It argues that those legal foundations are precisely the same foundations upon which corporate power rests. It develops a typology of those legal exceptions along the following categories: the corporation as a form of public entity; the corporation as a form of private property; the corporation as a political citizen; and the corporation as a criminal actor. The paper takes this typology to show how, in a range of different ways, legal challenges to corporate crime tend to have the effect of shoring up, rather than challenging the legal foundations of corporate power. The paper therefore argues that a meaningful challenge to the capacity of corporations to commit crime must challenge the legal foundations of corporate power.

14:00-15:30 Session 7E: Trust & Regulatory Governance (II): Inter-organizational Collaborations

Chair: Esther van Zimmeren

Location: Cz 006
Sweden Forestry and Forest Water: Private Forest Owners' Participation within Collaboratives

ABSTRACT. A survey conducted in February 2015 among a group of forest landowners in Northern Sweden showed that landowners were reluctant to collaborate with other parties in managing their forest land. At the same time forest owners showed relatively high trust in public institutions, which are involved in forest and forest water management. On the basis of the survey results and qualitative interviews with forest landowners, this paper argues that the disinterest in collaboration is not simply a consequence of high trust regarding other stakeholders but that in order for collaboration to thrive, it has to be either initiated and led by concerned enthusiasts, willing and able to take the leadership; or, alternatively, imposed by legislation which forces individual private forest landowners to address certain environmental issues which are connected to forestry practices and require collaborative solutions.

How do new recruits perceive citizens at the tax administration? Asymmetric relations between PSM, trsutworthiness perceptions and intention to control

ABSTRACT. While citizens’ trust towards public services has been the topic of much public administration research, public officials’ attitude towards citizens is a more recent concern. The regulatory trust triangle describes a specific context in which roles are clearly distinguished: public officials do control and citizens do trust. In fact, there are other contexts in which public officials are required to control and trust at the same time. For example, “co-operative compliance frameworks”, which combine formal controls with a higher reliance of tax officials on taxpayers’ trustworthiness, are increasingly used in European tax administrations. Firstly, this study aims to get a better understanding of the relation between tax officials’ attitude towards tax control and their perceptions of taxpayers’ trustworthiness. Secondly, as public officials’ initial attitudes toward citizens exert an important influence on their posterior attitudes, its objective is to examine the effects of public service motivation (PSM) on new recruits’ attitudes.

Institutions of Trust in complex regulated collaboration structures
SPEAKER: Selim Louafi

ABSTRACT. The paper aims at increasing our understanding on mechanisms for trust building in a context of diverse and heterogeneous actors, resources, capacities and knowledge. It is increasingly recognized that knowledge-based genomics innovations requires complex collaboration structures across a wide range of heterogeneous actors who operate with different norms and motivations and under various regulatory constraints. Specifically, we ask: How trust is institutionalized in different contexts of heterogeneity? To what extent redistributive and capacity building mechanisms matter for increased trust? What self-monitoring mechanisms for sustaining trust over time? This paper builds on a comparative analysis of contrasted collaborative scientific consortia in the health and agricultural sectors that have different governance structures, participants and rules in use.

14:00-15:30 Session 7F: The implications of Regulatory Interactions in Transnational Private Sustainability Regulation

Chair: Luc Fransen & Axel Marx

Location: Cz 123
Varied Ties, Varied Consequences? Understanding the Character and Consequences of Connections Between Private Regulations for Sustainable Agriculture
SPEAKER: Luc Fransen

ABSTRACT. Hundreds of programs have emerged in recent decades to regulate social and environmental conditions of production using voluntary standards. The increasingly crowded field of private regulators raises questions about how these programs are linked and with what consequences? Case-studies have documented the role of entrepreneurial organizations in spreading the model of private regulation. The literature also documents the formation of a community of practice among private regulators through intermediary organizations (Bartley and Smith,2010), ties among carbon-offset initiatives through mutual references (Green, 2013), and lack of ties among standard professionals in sustainable agriculture through current and previous job experience (Fransen et al, 2015). This suggests that how we measure links shapes the kind of community we observe and the associated nature of information flows and exchanges that are likely to occur. To advance work in this area, we analyze multiple possible ties among private regulators focused on agriculture, including ties through employees, cross-referencing of standards, joint projects, coordination efforts, and membership in groups like ISEAL Alliance. Our multi-dimensional view of ties provides a deeper look at how the character of ties may affect the exchange of ideas and practices, and the potential longer-term processes

The Interaction Between Public Policy and Private Standards. How relevant is the Public Private Distinction in the case of Voluntary Sustainability Standards?
SPEAKER: Axel Marx

ABSTRACT. This paper argues that the distinction between public and private regulations only make sense if one looks at the legal status of specific standard-setting organisations. If one switches the unit of analysis the distinction between public and private begins to blur and fade. In this context, two different unit of analysis are analyzed. One unit of analysis focuses on specific standards, while another unit of analysis looks at a more aggregated level and analyzes broader ‘public’ regulatory approaches in which private standards are embedded. Concerning the former, the paper shows that private standards are often based on internationally agreed (public) rules and norms. Concerning the latter, the paper argues that governments on purpose or in the design of their policies take these private initiatives on board. Hence, they become an integral part of ‘public’ governance. These arguments are developed on the basis of an analysis of Voluntary Sustainability Standards which constitute a leading example of so-called private standards. The paper first introduces the emergence, proliferation and importance of VSS. Next, the attention turns to the link between public policy and VSS. The paper ends with a conclusion.

Transnational Private Governance and EU Regulation

ABSTRACT. The EU has a well-established history of regulatory interventions in the areas of environmental and sustainability policy. This engagement has also resulted in multiple interactions with transnational private regulation. In some cases, such as organic agriculture or biofuels, this has resulted in the EU strongly interfering with private regulatory standard setting work and with the functioning of private regularory organizations when delegating policy responsibility to them. In other areas, such as fisheries or fair trade, the EU has intervened to a much lesser degree, adopting a more orchestration-like role (Abbott et al. 2015). In this paper I will examine the impact of the EU’s interventions in private regulation, using empirical evidence from the four mentioned issue areas. In particular, I will focus on the following two questions: (1) Has the EU’s interventions resulted in an overall increased level of standards, both substantively (e.g. in terms of defining “sustainable” biofuels) and organizationally (e.g. in terms of requiring best practices; cf. Van der Ven (2015))?; (2) Have the EU’s interventions resulted in an overall increased regulatory governance capacity, or has it rather decreased private governance capacity? I argue that the EU’s interventions have at best resulted in a medium level of stringency in terms of substantive and organizational standards, even though the latter have been strengthened over time to overcome problems of interactions between private schemes. Furthermore, I find that the EU’s regulatory interventions have not resulted in a decrease in the governance capacity of private schemes.

When private regulation fails: concepts, cases, and explanations

ABSTRACT. Private sustainability regulation (PSR) is being developed through the interactions between business and civil society actors to mitigate the social and environmental impact of transnational production. To date, the bulk of studies have focused on the most developed of these systems. Although it makes sense to study well-institutionalized arrangements, we posit that much can be learned by examining failed systems, and an analysis of these ‘non-cases’ is long overdue. Beginning in the early 1990s, the World Wide Fund for Nature has sponsored several PSR systems in different industry sectors, including the Forest Stewardship Council in forestry and the Marine Stewardship Council in fisheries. While these and other arrangements have institutionalized their norms, routines, and structures successfully, others, including the Marine Aquarium Council, have not and ceased to exist. In this article, we take a first step toward systematically investigating the phenomenon. In this regard, our study makes three major contributions: First, we provide an extended discussion of PSR failure, distinguishing between substantive and procedural dimensions of failure. With this, we fill an important gap in the private regulation literature, which has given little consideration to the concept to date. Second, we explore the universe of cases. This is an important step in the research cycle, encouraging a deeper understanding of the broader significance of PSR failure. Thirdly, we use inductive process tracing to generate hypotheses for future (comparative) work through an in-depth focus on the Marine Aquarium Council and the interactions within this scheme and its institutional environment.

Public and transnational private regulation in interaction: dispersed sovereignty in the field of sustainable palm oil

ABSTRACT. Since the 1990s, NGOs and businesses have increasingly gained prominence as architects of new forms of governance to address sustainability issues. Challenging or by-passing the territory-based sovereignty of the state, they have claimed central positions as new rule-making authorities at the global level by developing principles and criteria for the production of agricultural commodities. Increasingly it is recognized that the legitimacy and effectiveness of these transnational private regulation arrangements are for a large part dependent on and influenced by public policy strategies. Empirical analyses on the role and positioning of the state vis-à-vis global private partnerships are however scant. This paper therefore analyses the interactions of the Indonesian, Malaysian and Dutch state with the Roundtable on Sustainable Palm Oil (RSPO), a transnational private regulation arrangement addressing sustainability issues in the palm oil industry. The paper analyses the character of interactions between state actors from Indonesia, Malaysia and the Netherlands on the one hand and the RSPO on the other in developing principles and criteria for sustainable palm oil. This paper pays specific attention to how these interactions have shaped and have been shaped by different frames on sovereignty over sustainable palm oil. The results from this comparative study are used to reflect on the wider implication for bringing the state into the analysis of transnational private regulation arrangements for theory and practice.

14:00-15:30 Session 7G: When the Regulatory State Meets the Welfare State (II)

Chair: Avishai Benish & David Levi-Faur

Location: Cz 008
The governance of inequalities: why the regulatory state leads to ever-expanding welfare states
SPEAKER: Menno Fenger

ABSTRACT. The historical roots of many European welfare states are situated in the voluntary, non-governmental initiatives of the 19th century. Charity organizations, professional organizations, churches and many other organizations gradually evolved in response to the social issues of the emerging industrial state. However, non-profit welfare state arrangements tend to have ‘exclusion’ as an important characteristic. As voluntary charity may be considered as a common-pool resource (cf. Ostrom 1993), rules emerge about who is entitled to the welfare arrangements and who is not. Exclusion may be based on religion, geography, profession, or other bases. Moreover, due to the large amaout of freedom in defining who’s entitled an who’s not – and on what grounds – large differences in service level occurred between the different arrangements. As the variety of local non-profit initiatives failed to provide a comprehensive answers to the challenges of modernization and the differences became politically unacceptable, a typical regulatory process emerged in many European countries emerged. Coverage of many welfare arrangements was extended, participation became obligatory, acceptance as well. We refer to this process as ‘statelization’. In the 1980s the efficiency of effectiveness of the statist base of these arrangements was questioned, leading to austerity measures and the introduction of so-called new public management reforms in the area of the welfare state, including the privatization of many arrangements (including, for instance, health insurance in the Netherlands). This triggered a process of marketization. In the 2010’s many countries are rediscovering ‘society’ as a ‘new’ mechanism of delivering welfare services. The ‘Big Society’ (Blond) or the ‘Participation Society’ are examples of this. However, in this paper we argue that this process of ‘societalization’ meets the regulatory state the moment differences in service delivery levels – inevitable in non-profit governance – emerge. The regulatory citizen is not used to accepting differences, and will trigger regulatory processes to counter these differences.This paper discusses empirical examples from the areas of education, health care and pensions to illustrate and analyse the theoretical relation between the governance of equality in regulatory processes and the expansion of the welfare state.

The Politics of Regulating Welfare Markets. Institutional Inertia and Political Struggle for Welfare Ends in Germany, Sweden and the United States

ABSTRACT. Over the last two decades we witnessed a marketisation of welfare programmes and social services in advanced welfare states. Mature welfare states incorporated market mechanisms and established private programmes were growing to unprecedented scale. In this context, little is known about the regulatory differences of these markets across welfare regimes and how these markets were implemented. This paper addresses both questions in a comparative study of pension and education markets in Germany, Sweden and the United States. Based on six comparative case studies, the evidence suggests that welfare markets are embedded in the existing welfare regime. Drawing from theories of institutional change and actor-centred approaches (Fligstein 1996), I argue that previous institutional features of public welfare programmes such as access, administration, financing and choice serve as templates for welfare market regulation. This is line with Levi-Faur’s (2014) approach who also claims institutional affinities between types of regulation and welfare regimes. However, powerful actors are able implement rules that favour their market position. Such persuasive actors can be classical political actors (parties), organised labour, business interest groups or strong welfare user groups. Depending on the political power balance, the superior actors are able to innovate and implement path alternating market features. Despite the pivotal influence of actors on some regulatory features, overall highly embedded welfare markets suggest a strong path dependence and continuity of welfare regimes in the market sphere.

When the Regulatory State Meets the Welfare State: The regulation of pension fees in the United Kingdom and Israel

ABSTRACT. How does the rising ‘regulatory state’ address social policy concerns? This paper compares the regulatory responses to high fees paid by low-income workers in the pensions market in the UK and Israel. Recognising the market would not cater to low income workers in a socially acceptable manner, the UK launced a publicly-operated low cost pension fund to operate in the market and offer more accessible fees. In Israel, the regulatory approach focused on customer empowerment, with regulation used for minimal social protection by capping pension fees at a relatively high level. Comparing the two cases reveals the growth in the social role played by regulation and the diversity of forms and goals regulation can assume. The study identifies variants of the mixes between the regulatory state and the welfare state, including the emergence of ‘public option’ arrangements in which the state initiates a service to compete in a market setting. It discusses the possible reasons for the different regulatory approaches, concluding that as long as pensions remain market dependent and the redistributory effect of regulation is low, the social potential of regulatory welfare will be limited.

Title: Changing social regulation in “network societies”: universality and inclusion in Europe (2003-2015)

ABSTRACT. The profound changes that have taken place in the last decades, due to the privatization of public monopolies and the commodification of public services, have produced a change in the way regulatory regimes adopt and implement not only economic programs but also welfare programs. This paper aims to contribute to the research agenda on guiding values that drive citizen-welfare regime towards consumer-welfare regime (Righettini, Tonellotto, 2015). We hope to contribute to the discussion regarding the development of social regulatory regimes through the changing of the Universal Service programs in the communications sector by examining a number of EU countries. This paper focuses on the role regulatory agencies play in changing the guiding ideas regarding the inclusion issue within societies increasingly interconnected. Applying computer-assisted content analysis to the annual reports delivered by ten European member states, between 2003-2014, we explored the principal trends in paradigms, ideas and contents of universality and consumer- oriented universal service in Europe. The first section focuses on the analytical framework and contribution provided by the welfare-state literature (Flora, 1986; Esping Andersen, 1990) in understanding regime changes in its transnational and technological dimensions. The second section illustrates certain basic concepts, such as, “universality”, “commodification” and “network society” and intended as a set of ideas regarding goals, practices, interactions, regulatory targets and beneficiaries. We illustrate how the EU directives coupled with the national regulatory agencies define “epistemological borders” and a repertoire of adaptations (Schmidt, Radaelli, 2004) of the traditional notion of “universality” and of regulation of the Universal service in the light of the rapid evolution of communications technology. In the third section, we illustrate our research methods, based on the quanti-qualitative analysis of the annual reports of the national IRAs examined. In the fourth and final section, we discuss the empirical findings and theoretical implications.

14:00-15:30 Session 7H: Regulating an innovative economy

Chair: Derek McKee

Location: Cz 118
Financial Innovation as Regulatory Challenge
SPEAKER: Cristie Ford

ABSTRACT. Regulation and Governance scholarship over the past three decades has both recorded and contributed to the enormous growth and increasing sophistication of novel regulatory strategies. As is often remarked upon, contemporary regulators have at their disposal a far larger and better-stocked regulatory toolbox than they did thirty years ago. And yet, in the wake of the financial crisis the "regulatory state" and its methods have been the subject of pointed critique. Several commentators, remembering too little of past lessons, have called for a return to more bright-line, top-down regulatory methods. The charge that financial regulators before the crisis were too docile, too cooperative, and/or too trusting of industry self-regulation or market forces - irrespective of the truth of that charge - implicates many new regulatory methods, and calls for a frank and open discussion of how Regulation and Governance scholarship should envision its future trajectory. This paper argues that flexible regulatory methods continue to be the only viable response to the dynamic and complex nature of modern regulatory problems, including financial ones. At the same time, financial regulators and regulatory scholarship have failed to appreciate the direct and fundamental challenge that financial innovation poses for regulation itself. The paper identifies and discusses the particular ways in which financial innovation has developed over the last several years, with a view to creating more responsive and more robust regulatory responses to that challenge.

Consumer Protection and the Collaborative Economy
SPEAKER: unknown

ABSTRACT. One of the fundamental challenges of the collaborative economy such as online brokerage services, Über or AirbnB is the qualification of consumers who are participating in this new emerging economy. How to define the boundary between a professional business and a non-professional party in cases where prosumers participate in the economy? What is the exact legal nature of prosumers? And what is the best approach to protect consumers while not stifling innovation? These questions cannot be answered in general, but have to take account of the specific business models and the role of platforms. In this paper we make use of e3-value, a method developed for representing business models in a diagram, and analyse the essence of a business model including information technology aspects. The resulting business models are used to answer the question how consumer protection rules should be applied. We will examine three examples: (1) Airbnb, (2) UberPOP, (3) sharing tasks around the house (e.g. lending tools). Of each example we will first look in detail at the business model, using e3-value. We will identify which legal rules traditionally apply to these kinds of transactions, and whether the digital service should be any different. We will examine which aspects of the transaction necessitates different rules or none at all due to new alternative mechanisms such as reputational feedback mechanisms that decrease the need for legally regulated information disclosure and consumer watchdogs. For each example, we will try to determine whether to treat prosumers as professional businesses or as consumers as well as identify whether the specific case removes the need for applying traditional consumer protection rules or not. Generalizing over these cases makes it possible to formulate some general rules of thumb about how to approach regulating these services.

Regulating Innovative Technologies: Back to Basics
SPEAKER: Eric Windholz

ABSTRACT. The past 10 years has seen a proliferation of sharing economy platforms across a diverse range of markets, including: transport (e.g., Uber; Lyft), accommodation (e.g., Airbnb; HomeAway); retail (e.g., eBay; Esty); finance (e.g., Kickstarter; LendingClub); and services and labour (e.g., TaskRabbit; UpWork). These sharing economy platforms have disrupted and reimagined the markets they have entered. In many cases, they also have disrupted the regulatory regimes that govern those markets, leading to calls for the regulatory regimes likewise to be reimagined. Many of these calls are based on the assumption that existing regulatory strategies are incapable of effectively regulating the sharing economy, and that what is required are innovative regulatory strategies that better model the innovative technologies sought to be regulated. This paper argues that calls for innovative regulatory responses tend to focus on outputs (and not the processes by which these outputs are imagined) and, in so doing, risk throwing out the baby with the bath water. Rather, this paper calls for a return to regulatory basics: that successful regulatory design is a function of adhering to recognised regulatory design principles and processes. This paper argues that adhering to established regulatory strategies and techniques (albeit with imagination) provides the best mechanism for achieving efficient and effective regulation of sharing economy platforms (and other innovative disruptive technologies).

14:00-15:30 Session 7I: Regulation in the Energy Sector and Regulatory Responses to It (I)

Chair: Ellen van Bueren, Maurits Sanders & Thomas Hoppe

Location: Cz 109
Aligning regulation and governance for Smart Electricity Systems
SPEAKER: Imke Lammers

ABSTRACT. The established electricity grid as well as electricity sector regulation are being challenged by bottom-up innovations in the technological and governance domain. Increasing local production of renewable energy, the rise of energy initiatives by citizens, as well as potential gains in energy efficiency spurred the experimentation with Smart Electricity Systems (SES). As the existing regulatory framework was not developed for this bottom-up innovation, we address which institutional innovations are necessary in order to incentivize SES deployment outside of experiments. To answer this question we investigate the internal alignment between institutions at two different analytical levels: between the governance of emerging local SES practices and the existing legal framework. We speak of high internal alignment when the coordination mechanism used in the governance of a local project and that set by regulation coincide. To determine the necessary institutional change for SES deployment we combine legal and governance research and focus on the role of actors and the informal and formal institutions at play. First, we conduct a case study to examine the governance of an emerging Dutch SES, focusing on the driving actors and legal barriers. Secondly, we study European Union and Dutch electricity law to analyze legal obstacles in detail. We found that alignment is low as network governance is occurring during the SES project, while the legal framework established a regulated market. Additionally, SES experiments create realities which cause legal uncertainty in the further deployment of SES, and moreover, current regulation assigns clear roles and responsibilities to established actors, while it excludes a range of actors emerging in SES implementation. The research concludes by showing how the legal rules in question need to be adjusted in order to allow for a dynamic institutional setting, which at the same time ensures legal certainty.

Towards the Comprehensive Design of Energy Infrastructures

ABSTRACT. Energy infrastructures are increasingly perceived as complex, adaptive socio-technical systems. Their design has not kept up; it is still fragmented between an engineering and economic dimension. While economists focus on a market design that addresses potential market failures and imperfections, opportunistic behaviour, and social objectives, engineers pay attention to infrastructure assets, a robust network topology, and control system design to handle flows and eventualities. These two logics may be complementary, but may also be at odds. Moreover, it is generally unclear what design choices in one dimension imply for the other. As such, we are ill-equipped to identifying, interpreting and addressing the challenges stemming from technical innovations, e.g. the integration of renewable energy technologies, and institutional changes, e.g. liberalization or new forms of organization like cooperatives, which often have interrelated operational and market implications. In response, this paper proposes a more comprehensive design framework that combines and aligns the engineering and economic perspectives on energy infrastructure design. To this end, it elaborates the different design perspectives and develops the means to relate design variables of both perspectives along several layers of abstraction: the form of infrastructure access of actors, the division of responsibilities among actors, and type of coordination between actors. The hope is that this way system and market design efforts can be better attuned to each other and we further our understanding and conceptualization of the interrelationship between the technical, economic and institutional dimensions of energy infrastructures. The framework also aids in overseeing the broader institutional implications of technical developments (and vice versa) and stimulates awareness of lock-ins and path-dependencies in this regard.

Local energy in the Netherlands: Do we put the money where the mouth is?
SPEAKER: Anna Butenko

ABSTRACT. Solar panels on the roofs of residential houses and onshore wind turbines installed along highways and in the rural areas are a common sight in the Netherlands, as well as in many other European countries. Such energy is renewable, but it is also called decentralized or local- the terms that entered our vocabulary relatively recently, but that promise to take long-term residence there. The current paper is meant to present a detailed analysis of the match between the Dutch political goals in relation to local energy and the governmental measures actually in place. The proposed hypothesis is that there is currently a large level of discrepancy between the definitions of local energy, projections of the future developments, as well as between the stated goals and the support measures in the Netherlands. The theoretic framework of the current paper draws upon scholarly area of law and technology, as well as on that of institutional economics. Namely, we investigate local energy in the Netherlands from the perspective of the so-called ‘regulatory disconnection’ (also referred to as ‘pacing problem’ in the US-originating law and technology literature, and ‘fit between institutions and technology’ in institutional economics). Regulatory disconnection refers to the situation when technologic or market innovations develop significantly faster compared to the corresponding regulatory framework, or when the policy goals are not supported by the actual measures in place. Whereas such situation is not inherently negative, its persistence over a longer period of time is undesirable from the point of view of regulatory efficiency and regulatory economy. The main research question our paper sets to answer is as follows: Is there a disconnection between the policy goals regarding local energy and the current measures in place to stimulate local energy in the Netherlands?

16:00-17:30 Session 8: Keynote Address

Prof. Benjamin van Rooij on "Regulatory Empowerment" 

Location: Aula
18:30-21:30 Session : Conference Dinner

Conference Dinner

Location: Faculty Club