Workshop 14: Regulatory Implants and Local Legal Regimes in the Mediterranean Region
Abstract
The aim of the workshop is to understand how regulatory implants, often implemented in jurisdictions within the Mediterranean region at the instigation of the EU, interact with existing (local) legal orders. The EU tends to export a set of regulatory templates to both candidate countries for membership and to regional partners. However, those templates are not necessarily tailored either to the local problems and needs, or to the existing legal orders in those countries. The workshop proposes to examine in detail specific examples of the enforcement of these regulatory regimes in the jurisdictions of the Mediterranean region, so as to identify the conditions for synergy (where imported regulatory regimes support local actors and resolve local problems) and conflict (where imported regulatory regimes are not well adapted to local conditions or are strategically misused). To explore these themes we invite contributions from both academics and regulatory practitioners in fields such as consumer protection, competition, sectoral regulation (telecommunications, energy, financial services). Contributors may also wish to address the question of the robustness of those regulatory regimes in the face of significant political or economic turbulence.
Description
The building up of regulatory regimes and institutions in emerging and developing nations has been high on the agenda of both the EU and international donor organisations such as the World Bank and the IMF. For the EU, this is part of a broader agenda of reshaping the neighbourhood in its own image and its emergence as a “soft” normative power (Laidi 2008) that seeks to influence the world by virtue of the attractiveness of its ideas. For international donors, the focus on regulation and governance stems from the recognition that development advice focused purely on price liberalisation failed to deliver development outcomes. This has lead to a consequent rediscovery of the “institutional underpinnings of market economies” putting institutions “squarely on the agenda of reformers” (Rodrik 2000) . As a result of these trends, nations in the Mediterranean region have been busy ticking “reform” boxes: enacting various types of regulatory legislation, creating regulatory institutions charged with enforcing such legislation and attempting to build regulatory capacity through training, participation in international fora, as well as twinning programmes with regulators in EU member states.
Yet, despite all this apparent activity in law-making and institution and capacity-building, there is a perception that the resulting regulatory regimes often lie dormant, so that even many years after their creation we do not observe either enforcement actions or decided cases. For instance, consumer protection or competition regulators in nations such as Morocco, Algeria or Tunisia were largely inactive even a number of years after they came into being (that, at least, would be one obvious conclusion to draw from the absence of enforcement actions or decided cases in those jurisdictions).
Similarly, the countries of South-Eastern Europe have been undergoing a transformation of their economic legal order through European regulatory private law. The driver of such transformation is again the EU, most obviously in the nations that have joined or are candidates to join the Union, but also the other jurisdictions who are seeking closer partnership and access to the common market. By European regulatory law we understand the transfer of horizontal rules aimed at the regulation of particular legal problems (such as competition or the Internet), or at the protection of particular groups (such as consumers), or at laying down standards on the interaction between private legal orders (such as the Brussels or the Rome I and Rome II Regulations), as well as the transfer of vertical rules aimed at the regulation of particular sectors of the economy (such as telecommunications, energy, transport, financial services). Again, some of these regulatory implants tend to be relatively inactive, while others implement the rules in a shallow way, which allows for subversion and capture by regulated entities or is not salient for the groups it seeks to protect, thus inhibiting the achievement of the stated regulatory purposes.
We hypothesise that there are two key reasons for the shortcomings described above. One is that the regulatory regime templates (rules and institutions) offered by the EU (or by donors such as the World Bank and the IMF) may not be tailored to the specific problems and needs faced by jurisdictions in the Mediterranean neighbourhood. The second stems from the observation that quite often these horizontal and vertical regulatory transplants are either not connected at all, or are only very loosely connected to the existing national legal orders. This may be true not only with regard to the rule set, but also with regard to the implementing institutions and the legal fora in which the different regimes, the implanted and the existing ones, have to operate.
The purpose of the workshop proposed for the 2013 meeting is to advance the debate by focusing squarely on the interaction between the two regimes, both at the level of law-making and law enforcement. We propose to examine the interaction through the themes of “synergy” and “conflict”. In particular, we invite contributions from both academics and practitioners in various regulatory fields to discuss in detail specific examples of how these imported regulatory regimes operate in nations in the Mediterranean region. Through the lens of “synergy” we wish to explore instances in which the regulatory implants are used by local actors and implemented within local legal orders, so as to advance legitimate policy goals. Does the definition of the regulatory problems borrowed from European or international templates match with the local problems and legal framework, and if not can local actors successfully tailor them to local needs? Through the lens of “conflict”, we wish to explore specific instances of mismatch between the regulatory implant and either the local problems or the local legal environment. In cases where the local conditions are not receptive to the implanted regulatory instrument, can local actors implement an effective “workaround” to the obstacle so that the objectives of the regime are nonetheless achieved?
There is of course a third possibility, namely that these regulatory implants are used strategically by international economic actors, such as western multinationals, to gain access to local markets because negative obligations tend to operate at the international plane and are easier to enforce. However, due to the misfit with the local environment described above, the regimes fail to deliver the kind of protection of local actors (consumers, customers, small enterprises or socially vulnerable groups) that they are supposed to deliver (the universal service obligation is one possible and quite stark example of such failure).
To explore the interaction between the implants from European regulatory private law and local needs and legal orders, we envisage that the Workshop will be divided in sessions that would examine the following set of possible topics:
• National private legal orders and transplanted consumer or competition law
• National sector related rules (telecom, energy) and transplanted EU models
• Interaction between courts dealing with traditional private law issues and ADR bodies dealing with consumer law or sectoral regulatory issues
• Interaction between the old ministries and state monopolies and the newly established regulatory bodies promoted by the EU.
Page last updated on 04 September 2018