Lessons from the TPP Regulatory Coherence Chapter: The laws governing unsolicited commercial electronic messages as a case study

Abstract

The author raises the question at the outset of this article of whether, and if so, how, the regulatory impact analysis (RIA) can serve as an effective tool to promote regulatory coherence in the TPP. The laws governing unsolicited commercial electronic messages provide an interesting case study on challenges to the regulatory coherence chapter. First, whether governments will decide that their anti-spam laws and regulations are going to be subject to the TPP regulatory coherence chapter is entirely uncertain. Second, an examination of the relevant provisions of the chapter, in accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties, confirms that the chapter was politically motivated by the desire to have ambiguously drafted provisions and to leave plenty of room for individual interpretation as to “who” is required to apply RIAs to their decision-making processes. In the case of the anti-spam laws, if RIAs are introduced to primary legislation in national congresses/parliaments, legal problems would be engaged directly. Third, RIA methodologies must be harmonized. In the case of anti-spam regulations where economic and non-economic interests in competition, a somewhat concrete view of the methodologies for the incorporation of RIA is necessary to facilitate regulatory coherence. Fourth, this chapter argues that the implementation of RIA requires adequate governance arrangements, i.e., a regulatory oversight body. In the case of anti-spam legislation, rationales for and against regulatory involvement in spam messages are particularly complex because they touch upon a sensitive issue: the constitutional restrictions against regulating “speech”. Without the oversight of good governance arrangements, communications regulators may fail to consider the effects of their regulation on another part of government. Finally, an effective RIA requires adequate professionals within the regulatory agency to counteract such influence. Without sufficient quality assurance mechanisms, the cost-benefit analysis may not be properly applied.