Academic journal article Law and Contemporary Problems

Upgrading Existing Regulatory Mechanisms for Transatlantic Regulatory Cooperation

Academic journal article Law and Contemporary Problems

Upgrading Existing Regulatory Mechanisms for Transatlantic Regulatory Cooperation

Article excerpt



This is an exciting time to contemplate the future of international regulatory cooperation, but it is also a sobering time.

It is exciting because regulatory cooperation is now being pursued on multiple fronts more ambitiously than ever before. Some efforts like the Canada-U.S. Regulatory Cooperation Council are already achieving results today, and others currently in negotiations, like the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership (TTIP), could effect a paradigm shift in international regulatory cooperation if they succeed. Both agreements would go beyond traditional free trade agreements in that they prioritize regulatory coherence and the removal of so-called "nontariff barriers" in addition to traditional trade barriers. Particularly in the relationship between the United States and the European Union (EU), such an agreement--what I have previously called an "economic NATO" (1)--is necessary to preserve the U.S. and EU's role as standard-setters and economic hegemons in an increasingly competitive global marketplace.

On the other hand, this is a sobering time, because protectionist forces also seem to be on the rise. These protectionist interests have severely hampered efforts to unify regulatory approaches. Transnational bodies designed to pursue regulatory uniformity, such as the Transatlantic Economic Council (TEC), have become increasingly ineffective as a result of single-issue political gridlock. (2) Meanwhile, rising Euroscepticism demonstrated by last year's parliamentary elections has raised questions about TTIP's viability in Europe. (3) This political ambivalence is nothing new; indeed, it has consistently been the limiting factor on past efforts at transatlantic regulatory cooperation. (4) But it does not mean that the current push for regulatory cooperation is doomed to failure.

Recognizing the conditions on the ground, this article offers some practical suggestions for achieving real progress on regulatory cooperation under imperfect political circumstances. In particular, it discusses the optimal leadership structure of transnational bodies dedicated to regulatory cooperation, including the existing TEC. This article also comments on the availability of existing regulatory mechanisms--specifically, negotiated rulemaking--to achieve regulatory cooperation. Although such administrative solutions are available even now to promote transnational regulatory cooperation, TTIP is the best vehicle for institutionalizing these changes and using them to achieve lasting transatlantic benefits.

Beyond these specific proposals, this article aims to encourage creative thinking about what can be done in the service of regulatory cooperation using existing international institutions. (5) The EU's recent crisis over Greece underscores the importance of attaining regulatory cooperation. In contrast with Greece, other European countries that have undergone regulatory reform, such as Latvia and Germany (the former "sick man" of Europe prior to reform), are now financially stable. (6) Improving regulatory cooperation could have a significant impact on global stability.

TTIP is not the first U.S. attempt at regulatory cooperation with the EU, and one would do well to learn from the past. There have been at least nine other such efforts--the 1995 New Transatlantic Agenda, (7) the 1998 Transatlantic Economic Partnership, (8) the 1999 Joint Statement on Early Warning and Problem Prevention Mechanisms, (9) the 2000 Consultative Forum on Biotechnology, (10) the 2002 Guidelines for Regulatory Cooperation and Transparency, (11) the 2004 and 2005 Roadmaps for U.S.-EU Regulatory Cooperation and Transparency, (12) the 2005 U.S.-EU High Level Regulatory Cooperation Forum, (13) and the 2007 TEC. (14) The TEC was intended to oversee a program of regulatory cooperation with the aim of reducing redundant tests and regulations on a sector-by-sector basis. …

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