Smart Regulation

The author examines the essence of the category "good faith" and its implementation in specific legal institutions in the context of the concept of "smart regulation". Using the example of tax and civil law, it is investigated exactly how the category "good faith" is interpreted in the scientific literature, legislation and law enforcement practice, the main aspects of its direct and indirect application are analyzed. Based on the results of this analysis, the grounds for attributing the principle of good faith to the means of "smart regulation" have been identified, the main advantages of such categorization and recommendations for optimizing the use of the principle of good faith and its main manifestation in modern domestic tax law – the "anti-rejection rule" have been identified. Conclusions are drawn that the manifestations of "smart regulation" are not always innovative and poorly studied legal institutions. Finding them among the usual, ubiquitous legal means is no less important for the most effective, accurate use of the latter. For example, a correct understanding by the judicial authorities of the role of the general grounds for challenging transactions in bankruptcy (prevention and exclusive application) leads to the formulation of legal positions on their subsidiarity, preventing the use of this tool as ubiquitous. On the other hand, the consolidation of the anti-deviation rule in the tax legislation is generally correct, but not enough: there are no specific compositions of "evasive" offenses, which normalizes the widespread use of Article 54.1 of the Tax Code of the Russian Federation and the excessive detail and significance of the explanations of the tax authorities. The key assumption of the author is that the formation of an idea of these institutions as "smart regulation" will allow them to achieve the greatest effectiveness with the least legislative and law enforcement intervention.

This article examines historical, contemporary, andemerging form of governmental regulation in various contexts and jurisdictions, and applies that information comparatively in undertaking descriptive and prescriptive analyses in relation to regulation in Canada's energy sector. So-called "smart regulation " is the latest trend in regulatory (re)structuring. and the author attempts to probe the substance behind this catch-phrase to discover what its practical implications are to affected parties. The reader will contemplate how "smart regulation " differs, if at all from prescriptive regulation, goal-oriented regulation, performance-based regulation, and deregulation or whether it is some combination of several. "Smart regulation" necessarily imports inter- and intra-governmental cooperation and coordination to avoid regulatory duplication and multi-layering; in this regard Canada's regulatory regime appears to be in transition. Accurately measuring the degree of regulatory and industrial efficiency and effectiveness resulting from the "smart regulation" movement may ultimately require more credible evaluation methodology and increased research in the area.

It is emerging that benefits of new innovations in agricultural biotechnology may not be realised without appropriate biosafety regulatory mechanisms. The Kenyan regulatory experiences related to regulation of genetically engineered (GE) agricultural activities are explored to provide some basis for defining the challenges involved in biosafety regulation. The various shortcomings in the way the Kenyan biosafety process has been implemented are consistent with the way regulatory systems have been evolving in Africa. The proposed adoption of a "smart regulation" provides the basis for a learning process through which subsequent biotechnology policy initiatives can be improved.

Can shale gas development in Mexico be smart regulated? A qualitative analysis of the regulatory setting, challenges and perspectives

The main subject of the current issue of the journal “Legal Concept = Pravovaya paradigma” – “ ‘Smart Regulation’ As an Intersectoral Category of Modern Law” - was not chosen by the editorial board by chance. This annotation is a justification of the choice made. The author considers an objective need to popularize the intersectoral category of “smart regulation” in the Russian legal space as a significant argumentative factor, which has long been of key importance in foreign law-making theory and practice and has only recently begun to attract the attention of domestic researchers. The author announces the project supported by the Russian Scientific Foundation in 2021 which is offered by the scientists of the Department of Constitutional and Municipal Law of Volgograd State University, aimed at the comprehensive development of a system of smart regulation tools, the study of their legal nature, interrelation and correlation with the classical categories of jurisprudence, the justification of the criteria for the assessment of their efficiency and features of the application in the branches of private and public law. It is noted that the concept of “smart regulation” does not have an absolute novelty. On the one hand, according to the author, it is organically growing out of the ideas that have long been developed in detail in the world political and legal studies. On the other hand, the complex of tools used in the framework of smart regulation includes, along with the new ones, the entire system of classical legal instruments. Some of them acquire a different sound in the conditions of information technology development, including digitalization; for others, the limits and methods of their application are specified. The papers presented in the main topic of the issue and the rest of its headings illustrate numerous options for using modern and classical means of legal regulation in various spheres of public relations, taking into account new information technology opportunities. It is noted that the term “smart regulation”, taking into account the great challenges of modern realities, is often transformed into the term “smart technologies of legal regulation” and is also used in various combinations with different industry and disciplinary concepts. The paper substantiates the inexpediency of using the term “smart technologies” concerning legal regulation in such a narrow sense, limiting it to the context of total informatization of society and technological development. It is argued that we should be talking about the totality of literally all modern legal technologies. It is recommended to interpret “technologies” in a broad sense as a certain method of human activity. And these methods, according to the author, are made smart by the fact that they are chosen, created, and proposed by the representatives of law-making theory and practice as determined by the state of modern scientific knowledge and society. It is also recommended to take into account the subordination of the proposed legal methods and means to the value dominants which are characteristic of modern culture, as well as their ability to act as the organizing core of a particular sphere of the legal regulation of public life.

Introduction: an important vector of development of modern society is the formation of an ecological and economic paradigm, in whose context the legal regulation of public relations is carried out with the emphasis on the environmental component. The problems of compensation for environmental damage, without losing their independent relevance, become the leitmotif of the modernization of the legal implementation processes. Given that the specifics of compensation for environmental damage are multi-faceted, reflecting cross-industry trends, this area requires the development of “smart regulation”, whose effective means are legal prohibitions. Purpose: to conduct a theoretical and legal study of prohibitions as means of “smart regulation” of compensation for environmental damage. Methods: the research is carried out using a set of methods of scientific cognition, namely, analysis (the analysis of concepts, identification of their features, traits) and synthesis (the generalization of debatable conclusions, contrasted definitions), the method of analogies, with the help of which the characteristics of the studied theses, definitions were projected on legal relations. The preparation of the paper required the use of special legal research methods, such as formal-legal and comparative law. Results: the study focuses on the analysis of the concepts of “environmental harm”, “environmental communications”, “environmental information”, “mechanism of legal regulation”, “smart regulation”, “prohibitions”, presents their author’s interpretations, reflects that prohibitions as instructions to refrain from certain negative actions under the threat of liability in the matters of compensation for environmental damage are effective means of the legal regulation that ensures the satisfaction of the interests of society and nature. Prohibitions, as criteria for distinguishing between the legality and illegality of behavior in the interests of environmental protection, as means of the legal regulation, form the basis for bringing to justice those who violate them. The paper presents the ways of applying and modernizing prohibitions for “smart regulation” of compensation for environmental damage. Conclusions: prohibitions as means of “smart regulation” serve to ensure transparency and efficiency of compensation for the environmental damage, provide innovative communications of decision-makers and citizens in the implementation of their rights to a favorable environment, to compensation for damage caused to the environment in full, provide suspension, restriction, termination of the activities that cause harm from the creation of a regulatory act to its implementation. The analysis of legal prohibitions demonstrates that in the matters of compensation for environmental harm, the problem of legal prohibitions is effective.

Sustainable development has become a central societal goal for the national and global community and, therefore, also an inherent value that the legal system needs to enhance. The author argues that the current primary strategy to achieve sustainability, based on command-and-control regulation, is insufficient. More fundamental institutional change and ‘smart regulation’ are needed to create adequate incentive structures and facilitate sustainable practices. The strategy should create incentives and opportunities for individuals and corporations to choose sustainable alternatives. Environmental degradation is primarily a result of discrepancies in private and public costs. Traditional command-and-control regulations, in which the state prescribes standards for action or uses taxation to level out discrepancies in private and social costs, are insufficient to solve the global community’s large and complex issues in dealing with poverty, pollution, natural resource depletion, biological degradation, and climate change. Problems related to externalization, the tragedy of the commons, and free riders that create market failure must be addressed by smart regulation and institutional change, focusing on the incentive structures leading to ecological degradation and ineffective use of resources. New ideas and concepts focusing on smart regulation, involving stakeholders and people affected by the regulation in the legislative process, as well as stimulating innovation, are needed. Property and market-based solutions, like cap-andtrade systems for the distribution of climate and fishing quotas, also need to be developed in other areas. More substantial effort should be put into finding the most effective solution to the problem each measure is intended to solve.

This article considers the prospects for effective regulation of emerging globalized industries by examining the effectiveness of the ‘smart regulation’ approach associated with the port state control enforcement regime for seafarers’ health and safety. Smart regulation seeks to generate incentive structures that promote proactive compliance by ship operators. Drawing on an international comparative study, which included extensive observation of ship inspections in India, Russia and the UK, it is suggested that the main reason why the hoped-for ‘market in virtue’ is only weakly present turns on the perceived and actual inconsistencies in the implementation of the regulatory regime. These contrasts exist cross-nationally, and are manifested in terms of differences in the local character of enforcement practice, and in levels of trust in national regulatory administrations. The strong overall regulatory framework, the political will to avoid damaging maritime accidents, and the well-developed system of port state control, all suggest that the shipping industry may be taken as a test case for the possibility of effective smart governance of a globalized industry. The limited gains achieved in this sector thus bode ill for effective future governance of other emerging globalizing industries.

ABSTRACTNeoliberal governments increasingly encourage greater industry and community self-reliance. This article investigates the potential use of “smart regulation”, that is, complementary policy instruments, in a context where reliance on voluntary approaches to achieve local cooperation is problematic. It explores the case of industry-driven “area-wide management” (AWM) of fruit fly, a potentially devastating mobile pest. AWM involves synchronised pest management across a geographical area. As host plants in nearby town backyards and peri-urban areas create fruit fly breeding places, pest management is also needed here. In Australia, most local horticulture industries are expected to drive these initiatives to minimise damage to their crops and market opportunities. AWM offers an example of where the beneficiaries are concentrated, but the risk contributors are diffused. Mixed-methods research was applied involving three Australian case studies. Considerations for four policy instruments that could be included in a “smart regulation” approach are explored. The article shows that applying “smart regulation” promises a prudent way forward when governments expect industry self-reliance, but where industry has limited influence over diffused risk contributors.

Private law in Europe has undergone a significant transformation during the last two decades. From a branch of law that was scarcely affected by EU legislation, it has become the object of considerable harmonisation measures to facilitate free trade and protect European citizens. Simultaneously, there has been an increased attention for ‘better regulation’ in the EU. The efforts of the European Commission to improve regulatory quality and to reduce administrative burdens for industry have promoted a regulatory environment in which formal intervention is more limited and self–regulation and co–regulation have emerged as alternatives. The University of Maastricht organized a workshop on ‘Smart Regulation of European Private Law’ in January 2013 with the aim to assess how the Smart Regulation agenda has shaped/can shape European private law; investigate the contribution of different methodological approaches to achieve ‘smart regulation’; and explore opportunities and threats for European private law, in particular in respect with developments in self–regulation and co–regulation. This report shortly summarises the discussions.

Throughout the international community - and specifically in the European Union - there is an increased focus on 'new modes of governance', for three different - but sometimes interrelated - reasons: achieving more efficiency and better delivery, creating the pre-conditions for participatory governance, and modernizing the regulatory system. The debate on 'what public policies can really achieve', how they can 'bring society back in', and whether 'smart regulation' is rhetorical smoke or substance raises all sorts of problems, ranging from definitional issues to substantive questions of policy accountability and legitimacy. What 'new modes of governance' boil down to, however, are the instruments chosen by governments. This Symposium discusses the politics of new modes of governance in the EU from this advantageous angle. In doing so, it gains in specificity and allows comparisons across policies, although at the cost of missing something of the 'grand' debate on 'government' and 'governance'. Policy instruments are the tools used to achieve policy objectives (Howlett and Ramesh 1993). In the EU context, 'new' policy instruments include codes of conduct, eco-labels, scoreboards, benchmarking, best practice, high-level fora, voluntary agreements, co-regulation and other tools. This European Forum Symposium is governed by no particular theoretical orthodoxy. The papers use a variety of theoretical explanations to new policy instruments. While it is an important and dynamic area in the EU governance picture, soft law does not encompass all the new instruments present in the system. Instruments can be legally binding and quite 'hard' in terms of their regulatory impact (an example being economic instruments like taxation). There may be substantial shades of 'soft' and 'hard' policy instruments: soft law may be used in an extremely hard way (environmental voluntary agreements, for instance, are binding in The Netherlands). One of the key findings here is that the instruments discussed in this Symposium may not be all that 'new' in areas such as social policy and the environment. Equally, how much substantial impact these 'new' types of instruments have on a sector needs to be evaluated. As several papers note, considerable amounts of EU innovation actually may be centred on the modification of older instruments as well as on the creation of a mix where the new instruments complement the traditional regulations in place.

Corporations have worked to promote and embed policymaking reforms which increase reliance on and provide a conduit for industry-favourable science. Such systems have become increasingly mainstream in policy making across the world, yet most are unaware of the corporate influence behind them. We will present evidence that diverse corporations worked collectively to promote and embed 'Better Regulation' (now known as 'Smart Regulation') in the European Union. The desired outcome was to reduce policymakers' ability to pass public health policies which could be detrimental to corporate interests and profits. We will illustrate how these regulatory frameworks have now been embedded. Delegates will hear examples of the ways in which corporations have gone on to use these systems to feed misleading science into the policymaking process, ultimately in attempts to dilute, delay or prevent public health policies.

In June, 2007 the province of Ontario, Canada, released environmental penalties (EPs) regulations. EPs (or administrative penalties, as they are called in the US) are the environmental equivalent of speeding tickets for facilities that violate pollution laws. They are found in numerous jurisdictions and are widely understood as part of a move toward smart regulation. The Ontario regulations offer reduced EPs to facilities with an environmental management system (EMS) that meets the requirements of ISO 14001 or the chemical industry's Responsible Care initiative. We argue that non-governmental, consensus-based standards such as ISO 14001 can and should play a constructive role in smart regulation and the pursuit of sustainability, but that the Ontario government's attempt to incorporate them into its EPs regulations was anything but smart. We present six tips for how to incorporate voluntary standards into official regulation. First, don't reinvent the wheel. If a standard exists that fulfills the objectives of a proposed regulation, and the standard was developed by a recognized standards body through a multi-stakeholder consensus process, regulators should incorporate the standard into the regulatory scheme as far as possible and appropriate, rather than drafting a new standard from scratch. Second, avoid unexplained discrepancies between the regulation and the standard. Third, if an existing widely accepted standard does not, on its own, meet all the public policy goals of the proposed regulation, indicate clearly how the standard is deficient and what more is required to meet public policy objectives. Fourth, should consult relevant standards development committees when developing regulations. Fifth, take advantage of ongoing opportunities to participate in the work of relevant standards development committees, to keep abreast of developments and influence the content of standards. Finally, and this is the biggest challenge, both regulators and standards development bodies should address the special characteristics and challenges of small businesses.

There is a growing body of literature that explores the effectiveness of different regulatory approaches and tools. This is sometimes referred to as smart regulation, responsive regulation, risk-based regulation or instrument choice theory. Much of this literature is focused on articulating and evaluating the design of regulatory principles and it is focused at local or national regulation. According to this literature, it is generally accepted that a mix of complementary regulatory techniques is desirable and that these should be adapted to specific contexts. It is often asserted that regulation should be effective and efficient. There is infrequent consideration of how smart regulation could be applied to regulatory issues at the level of international law. Elements of this appear in literature on corporate social responsibility. Smart regulation is implicit in areas where ‘regulatory toolkits’ are advocated such as in the Food and Agriculture Organization of the United Nations (FAO) Code of Conduct for Responsible Fisheries. Typically, this involves combinations of rights-based measures (private property rights and market-based controls) with traditional ‘command and control’ type rules, and the use of both soft and hard law instruments. More generally, the development of cross-cutting regulatory agendas, such as the use of trade measures to secure environmental goals, is synonymous with smart regulatory approaches. If such approaches are to succeed, then we need to consider the effectiveness of different instrument combinations. Drawing on key regulatory design principles, this chapter considers the extent to which international fisheries law satisfies key design principles (including coherence, complementarity, efficiency, and scalability). It finds that whilst many are satisfied, this is hampered by the range of actors engaged in international regulatory activities, the limited tools available to regulators and the absence of strong reflective and adaptive governance structures. The latter in particular present challenges for effectiveness because they limit possibilities for change and improvement. Of course, this may simply be a matter of perspective, and if we look ‘inside’ international fisheries regulation, and it view regulation as cutting across international and domestic fora, then possibilities for more sophisticated and reflective regulation exist. Here a smart regulatory agenda is likely to strengthen the interface between domestic and international dimensions of fisheries regulation.

The article is devoted to the study of debatable aspects of the relationship between the concept of «smart regulation» that is actively developing at the present time and the ideas of the rule of law. In this context, various aspects of the development of relevant views are explored, taking into account the socio-historical and political and legal features of the emergence and development of the ideas of «smart regulation», the differentiation of continental European and Anglo-American approaches to the interpretation of legal statehood (rule of law), as well as differences its formal and substantive concepts. Based on the results of the study, the author highlights the main problems of the theoretical compatibility of the ideas under consideration, draws conclusions about their possible practical consequences. At the same time, the paper also highlights the promising «points of contact» of «smart regulation» and a number of conceptual elements of the theory of the rule of law, further study of which, in the author's opinion, can lead to a synthesis of the relevant areas of political and legal thought.