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The purpose of the Regulatory Institute’s own model laws is to help regulatory practitioners, be they working for administrations or parliaments, to improve the quality of laws by triggering more conscious choices. Our model laws should inspire regulatory practitioners, be used as a toolbox, checklist, raw material or a basis for the development of an adapted law and optimised as such. Our model laws are not intended to be used verbatim as drafted. They highlight important decisions to be taken by the regulatory practitioners without pre-empting respective choices. Where choices are offered, they are presented either as alternatives or add-on modules that can be kept or deleted.
Our model laws offer so many possibilities for differentiation that no jurisdiction will use all of them because each jurisdiction will have their own policy objectives to be fulfilled by the law. Consequently, once a decision has been taken regarding the possibilities for differentiation to be used, the law can and should be simplified.
The model laws of the Regulatory Institute provides a relatively complete basic pattern for the development of laws or regulation optimised according to the situation in the respective jurisdiction, particularly its culture, its customs, its needs, its administrative system and enforcement capacities. The use of our model laws may even liberate energy and capacities for the important political choices. Our model laws aims to facilitate the development of tailor-made laws and, on average, more complete laws. It shall generate more complete laws without pre-empting any choices. So users of our model laws should modify sentences, add new ones and delete those which are not needed.
We have avoided developing very detailed technical provisions in each model law so that they can be used by all jurisdictions regardless of their resources or capacities. Our aim was for a low to medium level of technical depth, whilst also balancing the need for completeness.
In view of the differing resources and capacities each jurisdiction has, we use the following colour coding in our model laws:
- Green stands for provisions which are “technically easy to implement” or “unavoidable / essential whilst being of medium difficulty to implement”; therefore the green provisions represent the minimum all jurisdictions should follow for an effective and competent framework, with a caveat following three paragraphs below.
- Red is at the opposite end and stands for “technically difficult to implement” or “rarely advantageous whilst being of medium difficulty of implementation”; we thus recommend particular caution before including the red provisions.
- The remaining provisions are marked in yellow. They are all of medium difficulty.
For a jurisdiction with low implementation capacities, we recommend using all the green provisions and some of the yellow, but discarding the red provisions as a baseline.
For a jurisdiction with medium implementation capacities, we recommend using all the green and most of the yellow provisions, but to be very selective regarding the provisions in red.
For a jurisdiction with high implementation capacities we recommend using all the provisions and developing more detailed provisions for some of the sections, up to the level of technicality that is highest performing and still manageable.
Each model law is construed in such a way that it could “stand” with the green provisions alone, but that the sections or provisions in other colours can be added as extension modules.
In the above, we refer to the aspect of technically simple, medium or difficult to implement. This parameter alone should not be the basis on which provisions are included or excluded in a particular regulation. What is more important is the overall quantitative implementation and in particular, the enforcement capacity of the jurisdiction, even very advanced technical jurisdictions should consider this carefully. Hence the following questions need to be considered:
- Does the jurisdiction have the necessary (quantitative) enforcement capacities to enforce all the provisions we deem ideal?
- If not, which provisions shall the jurisdiction mainly focus on in terms of enforcement, where shall it steer its precious resources?
- Should the jurisdiction maintain the other, low-enforcement /-priority provisions that are probably difficult to enforce, hoping the provisions act as a deterrence? Can the jurisdiction use enforcement via third parties to extend the zone of enforceable provisions (see Subsections 10.5.3 and 11.4 of the Handbook “How to regulate?”)? Or does the jurisdiction eliminate the low-enforcement /-priority provisions so as to avoid an uneven playing field, which disadvantages those operators who respect the law compared to those who only do so where there is effective enforcement?
As a result of this sequence of questions, even some provisions marked in green will need to be eliminated, and this, even in technically very advanced jurisdictions. Again, we encourage regulatory practitioners to be selective.
Regarding the general advantages of the use of model laws, see our introduction for the Model Laws Library.