Referencing in regulation is becoming more common in a globalised and interconnected world. Jurisdictions recognise that other bodies, or organisations both within and outside their jurisdiction, have more expertise in a given sector and so it makes sense to reference such bodies / organisations. In fact such referencing is justified based on efficiency, limited resources and consistency. However, some referencing has not been conceived well and so this howtoregulate article provides a roadmap of considerations that a regulator ought to take into account before making a reference, external to the piece of regulation. Continue reading Typology of referencing in regulations
More than five years after dealing with harmonised decision-making in the Handbook “How to regulate?”, we now re-visit the topic of this article in a more analytical way. We present six key components for a strategy leading to more harmonised decision-making (A). These key components can be integrated into an operational action plan and workflow. Continue reading How to harmonise decision-making of authorities and conformity assessment bodies?
In particular for technical sectors, regulators tend to refer to international or national standards as a means to set up requirements. This article examines some risks and downsides of (classic) direct and specific referencing, a referencing that makes the standards mandatory (A.). Furthermore it presents a matrix that can be used to generate dozens or hundreds of alternative techniques of referencing that avoid these risks and downsides and describes in more details a few favourite techniques (B.). Continue reading Referring to standards: never think there is no further alternative
The following list of empowerments should be used to verify whether all necessary empowerments have been integrated into the draft regulation under development. Continue reading Empowerments (Part II): The empowerment checklist
To ensure the good application of law, authorities must have empowerments. However, we have not yet found any systematic presentation of types of empowerments. We aim at closing this gap by this article. We will see that the focus on empowerment permits a new, complementary view on what regulation should contain. This complementary view can be used to double-check whether draft regulation is complete. Continue reading Empowerments (Part I): typology
Whistleblowing has become a dynamic regulatory field. Several jurisdictions have recently opened public consultations in this relation. They recognise the need to protect the good faith whistleblower disclosing alleged wrongdoing to ensure, in fine, the respect of the public interest.
This article presents international framework on whistleblowing (Part I.), model laws (Part II.), national reference regulation (Part III.) and national regulation which is commendable for specific aspects (Part IV.). Continue reading Whistleblowers: protection, incentives and reporting channels as a safeguard to the public interest
This article analyses the regulatory tool “unilateral recognition of foreign product or service approvals or certificates”. This tool might in the future play a crucial role in favour of international trade. Furthermore, this article shows how jurisdictions, by applying extremely stringent approval or certification criteria on an optional basis, could become approval / certification hubs, to the benefit of many other jurisdictions and their own. Continue reading Better than bilateral trade agreements: unilateral recognition of approvals / certificates and approval / certification hubs
The Handbook “How to regulate?” has been developed to train law-makers in administrations and parliaments. But it can also be used as analytical tool. One of the author’s readers, François Mestre, analysed a regulation by applying categories of the Handbook in a slightly modified way.
Establishing a legal basis for liability claims or modifying an existing one can deter economic operators or other natural or legal persons from unwished behaviours. To use this instrument, it is necessary to analyse the tort law regime of the respective jurisdiction and to complement or correct it so as to ensure that the unwished behaviour is covered. The following check-list of relevant issues might help regulators in this task. The check-list reflects various tort law traditions. This means, on the other hand, that some of the issues listed below are not relevant in all jurisdictions. Continue reading Liability as regulatory tool