Regulatory Autonomy Research Articles

Adaptive strategies for investor-state arbitration: A framework for emerging economies to safeguard national interests and attract investment

In the realm of international investment, Investor-State Arbitration (ISA) plays a crucial role in resolving disputes between investors and states. Emerging economies often face unique challenges in this context, balancing the need to attract foreign investment with the imperative to safeguard national interests. This review presents a framework for adaptive strategies designed to help emerging economies navigate the complexities of ISA while optimizing both investment attraction and national protection. The framework emphasizes a dual approach: enhancing the attractiveness of a country for foreign investors and fortifying mechanisms to protect national interests. Key components of the framework include the development of robust legal and regulatory environments that align with international standards while accommodating national priorities, and the adoption of transparent and equitable dispute resolution processes. The framework advocates for the integration of tailored dispute resolution clauses in investment treaties that consider the specific needs and vulnerabilities of emerging economies. Additionally, it recommends the establishment of dedicated institutions and expertise to manage ISA effectively, ensuring that states are well-prepared to address and resolve disputes. Emphasis is placed on proactive engagement in treaty negotiations, leveraging strategic partnerships, and fostering dialogue with investors to create a balanced and mutually beneficial investment climate. The review also highlights the importance of continuous review and adaptation of legal frameworks to respond to evolving global standards and investment trends. By implementing these adaptive strategies, emerging economies can enhance their attractiveness as investment destinations while safeguarding their sovereignty and national interests. The proposed framework provides a comprehensive approach to managing ISA, balancing the imperative of attracting investment with the need to protect national resources and regulatory autonomy.

In Pursuit of Sustainable Development: Safeguarding the Right to Regulate

In a world where the balance between economic globalization and national sovereignty is constantly evolving, the right to regulate becomes a crucial aspect of ensuring sustainable and inclusive development. This article explores the complex dynamics of protecting this essential right within the framework of international trade and investment agreements. Drawing upon a comprehensive analysis of legal frameworks, case studies, and scholarly discourse, it sheds light on the challenges and opportunities associated with preserving the right to regulate. By examining the intricate interplay between trade liberalization and regulatory autonomy, it provides a nuanced understanding of how nations can effectively navigate the complex terrain of global governance while safeguarding their ability to enact and enforce domestic regulations. Furthermore, the article explores the implications of regulatory measures on environmental protection and sustainable development, investigating potential conflicts between international trade obligations and the sovereign right of nations to regulate in the best interest of their citizens. Through a multidisciplinary approach, encompassing legal analysis, policy evaluation, and socioeconomic considerations, it aims to contribute to the ongoing discourse on striking a delicate balance between economic integration and the preservation of national regulatory autonomy, ultimately providing policymakers, scholars, and stakeholders with valuable insights and recommendations to navigate the complex landscape of international trade and investment agreements.

Assessing regulatory governance for the water and sanitation Agencies in Brazil

This paper focuses on evaluating and benchmarking the governance of regulatory agencies in Brazil's water and sanitation sector. Using a unique database obtained through the application of a questionnaire, we developed an index of regulatory governance and ranked all the agencies in Brazil that participated in the study. The index is an aggregate number of the evaluation of four key governance characteristics: Autonomy, Transparency, Accountability, and Tools & Capacity, including not only formal aspects of regulation but also indicators related to actual implementation. Based on 18 different indices, we analyze the positions of agencies with regard to different aspects of their regulatory governance, considering not only performance in each variable but also scores in the different components of each category. This evaluation identifies particular agency shortcomings regarding governance and indicates needed improvements. Although Brazil has strived to consolidate the governance design of its regulatory agencies, implementing the independent regulator model still faces several challenges. Various aspects of governance can be improved to pursue greater efficiency and quality in providing services, particularly in Accountability and Political Autonomy, where the country shows the largest number of regulatory agencies with the lowest scores. Conversely, almost half of the participating agencies show optimal scores in the Regulatory Autonomy aspect of governance. The results, for the most part, corroborate the institutional theory, in which the role of institutions is paramount for greater efficiency in providing public services, as it reduces information asymmetries and transaction costs and maximizes economic incentives.

Regulatory autonomy in digital trade agreements

Abstract Digital trade agreements have become integral fora for regulating cross-border digital commercial transactions, including data flows. Deeper commitments in the area of digital trade have however raised serious concerns over the erosion of countries’ regulatory autonomy, prompting the inclusion of an array of safeguards within these treaties. This article undertakes a comprehensive examination of these safeguard mechanisms, which include carve-outs, transition periods, the right to regulate, and exception clauses. By shedding light on the nuances of these safeguard provisions, as well as their complex interplay with commitments made, the article provides a deeper understanding of the evolving dynamics of digital trade governance and its implications for national regulatory autonomy. Based on existing jurisprudence and legal doctrine, the article also tests the scope of the provided policy space, the trade-offs between flexibility and legal certainty, and examines how future-proof the bounds of regulatory autonomy are, considering the highly fluid technological environment.

Washington’s hesitancy on digital-trade diplomacy

A group of 81 countries reached a negotiating milestone in July 2024 on measures they might take to reduce barriers to trading digital goods and on cross-border data flows. The United States did not join them, however, due to concerns over security and maintaining regulatory autonomy. It will take further negotiations for the parties to reach a comprehensive agreement that can be implemented, a process that will likely take years, but US resistance casts some doubt on whether a broad global push to reform long-outdated digital-trade rules can succeed.

Political rhetoric vs practical reality of ‘Taking Back Control’: is the UK’s agri-food sector ready to break free from EU standards in the global arena?

ABSTRACT In the vortex of the Brexit discourse, the phrase ‘taking back control’ emerged as a resonant mantra, encapsulating a desire for enhanced sovereignty and self-direction. Despite its widespread usage and political importance, the phrase’s practical implications remain underexplored in academic literature. This study introduces a novel analytical framework that conceptualises the notion of taking back control as an outcome of de-Europeanisation and aims to analyse its practical implications. It uses two case studies, Pathogen Resistance Treatment (PRT) or ‘chlorinated chicken’ and neonicotinoid pesticide bans, to investigate the intricate interplay between political aspirations and economic realities in the UK’s attempt to diverge from EU standards. It reveals that the process of ‘taking back control’ is not a straightforward assertion of sovereignty but is mediated by complex negotiations that consider the trade-offs between regulatory autonomy, market access, and environmental and health standards. The findings underscore the persistent influence of the EU on the UK’s regulatory landscape and the strategic considerations that underpin the UK’s approach to de-Europeanisation. This study contributes to the broader discourse on Brexit by offering empirical insights into the practical challenges and opportunities that the UK faces as it redefines its regulatory standards in the global political economy.

Reforming Digital Trade Rules at the WTO: Clarifying E-Commerce Regulation Policy Space for Economic Inclusion

Purpose: The purpose is to critically analyze the challenges and opportunities associated with reforming digital trade rules at the WTO, in order to explore the implications of ambiguous language and propose new principles and interpretative guidance to refine the rules.
 Methodology: The methodology involves analysis of ambiguous language in existing WTO agreements and proposed e-commerce rules, examination of influence on domestic digital sector capacity, case studies of digital industrial policies and technology regulations, and a proposal for new principles and interpretative guidance.
 Findings: The key findings are that ambiguity allows powerful tech giants to contest policies, impacts nurturing of domestic digital sector capacity, and burdens emerging markets. Case studies illustrate tensions around policy space for inclusive innovation.
 Unique contribution to theory, policy and practice: The unique contributions are the proposal of new principles to refine digital trade rules, development of interpretative guidance to affirm regulatory autonomy rights, and comparison with past WTO pharmaceutical patent waivers debate to emphasize need for adaptive and inclusive regulatory frameworks. Recommendations focus on promoting economic inclusion, innovation, competitiveness, and collaborative approaches in the digital era.

Proportionality and Deference in Investor-State Arbitration: Balancing Investment Protection and Regulatory Autonomy (Introduction)

Proportionality and Deference in Investor-State Arbitration: Balancing Investment Protection and Regulatory Autonomy (Introduction)

Disciplining Health Regulations through the World Trade Organization’s Agreement on the Application of Sanitary and Phytosanitary Measures: Science and the Rule of Law

Abstract The World Trade Organization’s (WTO) Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) disciplines WTO Members’ health regulations to prevent their misuse for protectionist purposes. In doing so, its obligations reflect several elements of the rule of law, including legal certainty, non-arbitrariness and non-discrimination, as well as a recognition of the rights of individuals. Through its obligations of non-discrimination, transparency and scientific justification and the scope it leaves for Members to prioritise the protection of health over trade liberalisation, the SPS Agreement can be regarded as entailing a rule-of-law approach. However, cognisant of the limits to the rule of law when transposed to the international level, it is important to avoid an overly “judicialised” approach to the disciplines of the SPS Agreement, and in particular its reliance on scientific justification to prevent arbitrariness in sanitary and phytosanitary regulation. Otherwise, there is a risk of intruding too far into the regulatory autonomy of States, weakening the “compliance pull” of the agreement and thus inadvertently undermining the rule of law in this area. An approach that instead recognises the inherent subjectivity and uncertainty in science and respects Members’ divergent priorities in health regulation would go further in engendering support for the rules-based system of international trade.

The Positivization of the arbitrary use of freedom of expression in social networks in Ecuador; a constitutional perspective

Social media allow the materialization of the exercise of freedom of expression, for this reason, their operating conditions must be adequate to the requirements of such freedom. This article analyzes the positivization of the arbitrary use of freedom of expression in social networks in Ecuador; from a constitutional perspective. It is a study with a qualitative approach, non-experimental design, transectional, with an analytical level, whose research and data collection techniques are purely documentary, based on information taken from books and academic journals, as well as from the Constitution of the Republic of Ecuador, the Universal Declaration of Human Rights, and the Inter-American Court of Human Rights. The results show that in Ecuador, the right to freedom of expression is contained in the constitution as one of the fundamental civil rights, however, there are no specific legal norms that regulate the use of the networks; for which it is necessary to adapt to models that apply state or supra-state norms that positivize inappropriate behaviors, as well as in paradigms of self-regulation supported by private entities that grant a certain degree of regulatory autonomy in the face of the arbitrary use of social networks.

Constitutional Acquisition and Regulation of Property, Investment Treaties and Expropriation in Africa

Abstract The reforms of investment treaties include the incorporation of flexibilities into standards of investment protection such as indirect expropriation to accommodate public interest regulatory autonomy. In this article, I assess the efficacy of these reforms by analysing the intersection of constitutional provisions on compulsory acquisition and regulation of property in selected African constitutions and expropriation provisions in investment treaties. I argue that indirect expropriation provisions in investment treaties are unconstitutional. I also argue that the new generation investment treaties which incorporate these exceptions do not preserve African States’ authority to acquire and regulate private property. The exceptions do not resolve the incompatibility between the constitutional authority to take and regulate property without paying compensation and African States’ investment treaty obligations on indirect expropriation. By providing for precatory and inefficacious exceptions to indirect expropriation while leaving intact substantive standards of investment protection, the reforms of investment treaties preserve an investment treaty law and arbitration regime that remains skewed towards investors and covered investments.

The right to regulate and the interpretation of the WTO Agreement

ABSTRACT In contrast to international investment tribunals, World Trade Organization (WTO) adjudicators have been reluctant to acknowledge the inherent right to regulate under international law explicitly. Policy-based considerations arising from such a right have not been viewed as a standalone component under interpretive analyses in WTO dispute settlement. Instead, they have been integrated only to the extent they find expression in the treaty. This article explores how, on occasion, WTO adjudicators have departed from this orthodox approach by choosing to proactively interpret the WTO Covered Agreements in a way that presupposes a States’ right to regulate, even where this may seem contrary to, or unsupported by, the treaty text. In these cases, the question has not been whether such a right subsists within substantive WTO disciplines, but rather how such a right can be read into these disciplines in a manner that comports with the ordinary rules of treaty interpretation. While this unorthodox approach has resulted in interpretations that appear unclear and uncertain, these outcomes are ultimately explicable in terms of a general principle of regulatory autonomy that can form the basis for more principled interpretive choices.

Pomoc udzielana przez państwa jako ryzyko w polityce przewag konkurencyjnych w Unii Europejskiej

Compatibility of economic advantages with the internal market refers to the economic impact of state aid that is permitted by EU competition rules. In general, this approach is based on the acceptance of derogations from basic obligations in a market economy, that may also be granted by the European Union to its Member States. Due advantages seem compatible with EU law per se, however, such compatibility also depends on the discretion of the competent administrative and judicial bodies. According to the analytical and empirical legal policy investigation presented in this article, the activity of the Court of Justice of the European Union is increasing in order to allow exceptions from general rules and extend the scope of compatibility in this field. This process may lead to enhance derogations from market-based commitments in Member States, typically in certain Central and Eastern European countries, which tend to emphasize the primacy of national regulation and are keen to exploit the potential of such broader regulatory autonomy. The aim of the study is to identify the origin and nature of this risk in order to support efforts that may diminish harmful effects in an EU-wide context. The empirical evidence of the paper derives from a systematically selected set of case law as a context by which the examined policy orientation is mirrored.

(Il)legitimacy of international intellectual property regime?

AbstractThe recent Covid-19 global health crisis not only brings into sharp relief the current problems afflicting the international intellectual property regime (IIPR) but also calls into question its legitimacy as an international authority. Against this backdrop, the article aims to launch an investigation into the legitimacy of the IIPR, as an international co-ordinative authority, designed to protect IP rights without prejudice to international trade norms. Drawing on Raz’s service conception of authority, it explores whether the IIPR lives up to its promises by enabling co-ordination between states over IP rights without undermining the initial balance on which it is founded, struck between developing and developed countries, as well as between international protection of IP- cum-trade rights and domestic regulatory autonomy. It does so by classifying the historical evolution of the IIPR under three different phases: (i) its foundation, (ii) before, and (iii) after the TRIPS-plus. Upon showing the legitimacy challenges inherent in its undemocratic foundation, the article points to the success of the regime in finding a balance between conflicting interests before the TRIPS-plus era. Later, it underlines the many challenges that come with linking the IIPR to the investment regime and argues that the FTAs and frequent regime-shifting activities put further pressure on the authority and legitimacy of the regime. Stressing the importance of democratic participation for the legitimacy of any co-ordinative authority, the article casts doubt on the IIPR’s legitimacy and concludes by raising some points to overcome the ongoing legitimacy challenges.

Dealing with the Challenge of Climate Change within the Legal Framework of the WTO

Although international trade and climate change regimes are two different fields of international law, they are closely interrelated. In particular, certain domestic environmental policies adopted by States may run afoul of WTO law, thereby having adverse effects on free trade. It has been claimed by critics that non-discrimination principles and subsidies regulations of WTO law constrain its Members’ ability to take certain unilateral actions aimed at climate change mitigation. According to other commentators, despite the existence of potential conflicts between UNFCCC and WTO regime, there are still synergies which can be developed to bring a greater coherence, and WTO’s multilateral framework can serve as a vehicle to facilitate targets of the Paris Agreement. This paper argues that although sustainable development is recognized by WTO regime and it leaves some scope for climate change actions, its current legal framework does not provide sufficient space for member’s regulatory autonomy in order to take national regulatory policiesAlthough international trade and climate change regimes are two different fields of international law, they are closely interrelated. In particular, certain domestic environmental policies adopted by States may run afoul of WTO law, thereby having adverse effects on free trade. It has been claimed by critics that non-discrimination principles and subsidies regulations of WTO law constrain its Members’ ability to take certain unilateral actions aimed at climate change mitigation. According to other commentators, despite the existence of potential conflicts between UNFCCC and WTO regime, there are still synergies which can be developed to bring a greater coherence, and WTO’s multilateral framework can serve as a vehicle to facilitate targets of the Paris Agreement. This paper argues that although sustainable development is recognized by WTO regime and it leaves some scope for climate change actions, its current legal framework does not provide sufficient space for member’s regulatory autonomy in order to take national regulatory policies

Regulation in Scotland and Wales after Brexit

ABSTRACT While the United Kingdom was a member of the EU, a number of regulatory competences were shared between the EU and devolved authorities in Scotland, Wales and Northern Ireland. As Northern Ireland is governed by the Protocol, which requires dynamic alignment with most EU regulations, it is a case apart and this article deals only with Scotland and Wales. Where repatriated competences should go after Brexit has been a matter of political contention. Attempts to centralise at the UK level have been rebuffed so far but tensions remain. Common Frameworks are designed to deal with shared competencies but are inconsistent and work best with technical matters. UK measures regarding the application of international trade agreements, the EU Internal Market Act, legislation on subsidy control and professional qualifications undermine the regulatory autonomy of Scotland and Wales. The real test will come if the UK diverges radically from EU regulations while the devolved governments resist.

Recent Trends in Investment Arbitration on the Right to Regulate, Environment, Health and Corporate Social Responsibility: Too Much or Too Little?

Abstract The article addresses the recent trends in investment arbitration, focusing on the evolution of international investment agreements from the perspective of the right of the States to regulate in public interest, as well as of the provisions concerning environment, health, and corporate social responsibility. These issues have been chosen because they highlight areas where the tension between sovereign and private interests is evident, as well as where States often face resistance in implementing public policy. Furthermore, the discussion is opportune as the mandate entrusted to the UNCITRAL Working Group III concerned with investor-State dispute settlement reform is limited to procedural aspects of such reform, leaving to the discretion of the States, as treaty-makers, the regulation of the substantive issues concerning foreign investments. The analysis of the international investment agreements concluded between January 2018 and December 2020 demonstrates that treaty language is constantly evolving to protect and expand the scope of States’ regulatory autonomy. The article concludes that investor-State dispute settlement remains the framework in which environmental, human rights and corporate social responsibility obligations can be smoothly integrated within the international investment law, allowing both States and investors to take advantage of and be held accountable for their respective obligations.

A regulação do trabalho em saúde em tempos complexos e instáveis

Abstract In Brazil, health is considered a right of all and a duty of the State, and health workforce regulation is essential to ensure the safety, quality and effectiveness of the health services provided, which require professionals with skills, abilities and attitudes consistent with the service in question, as well as to guarantee dignified working conditions for health professionals and patients. This essay is a critical and up-to-date analysis of the main characteristics of Brazil’s health workforce regulation model. We first describe how the health workforce regulation is structured, addressing topics such as the regulatory autonomy of Professional Councils, the regulation of new healthcare professions and the judicialization of conflicts in the field. We then analyze the regulation of health higher education and the leading role of the Ministry of Education in this regulatory field. The present reflections point out possible ways to improve Brazil’s health workforce regulation model, having the consolidation of the Brazilian National Health System (SUS) and the full implementation of the right to health as guides.

Trade contestation and regional politics: The case of Belgium and Germany

In developing an extensive network of trade agreements, the European Union has pushed for liberalization commitments that impinge on the competencies of subnational jurisdictions. This raises new challenges in federal systems as the emerging multilevel character of trade politics means subnational authorities could increasingly demand a say in the negotiation or ratification of these trade agreements. To address the tension between subnational regulatory autonomy and collective problem-solving in trade negotiations, Europe needs to avoid suboptimal trade outcomes where actions of contestation by subnational jurisdictions on the grounds of regulatory encroachment can undermine or veto collective agreement. Using the cases of Belgium and Germany, this article illustrates how the growing subnational contestation around trade agreements requires greater coordination and consensus to avoid domestic gridlock in their ratification. The article suggests normative ideas for the EU to address the overlapping authority challenges across multilevel governance. As the values of trade have changed, these normative measures should include the framing of trade narratives, addressing asymmetries of influence, enhancing subnational engagement, and mitigating the distributive costs of liberalization. These avenues for trade policymaking are to be ultimately advantageous for the EU's pursuit of greater integration.

CONSTITUTIONAL TRADITIONS AS BOUNDARIES IN STANDARDISING ADMINISTRATIVE RULEMAKING THROUGH TRADE AGREEMENTS

AbstractPioneered by the US, recent mega-regional trade agreements such as the CPTPP have incorporated ‘regulatory coherence’ provisions—mirroring the US Administrative Procedural Act's core designs—to balance between domestic regulatory autonomy and international cooperation. Building upon existing literature that traces the trajectories of the diffusion of regulatory coherence across jurisdictions, this article analyses how Australia's constitutional tradition could effectively condition the development of regulatory coherence in a Westminster-based model of governance. It is argued that the global entrenchment of regulatory coherence is contingent upon the inherent boundary defined by the political dynamics and constitutional structures within a jurisdiction.