In
seeking to guarantee market access, international trade regimes generally
include not only a substantive component, for instance a commitment to
non-discriminatory product safety regulation, but also a procedural component
designed to ensure that foreign firms can make themselves heard in the domestic
administrative process. In a series of high-level
policy recommendations and directives issued by the United States government, this
procedural agenda has taken a surprising turn:
what was once a set of legal devices tailored at stopping discrimination
against American firms abroad appears to have morphed into a broad-based
template for reforming administrative law worldwide. If this indeed is the ambition, the new task
of designing a fair and good model of administrative law amenable to export is
likely to prove significantly more complicated than the earlier procedural
agenda, and it will be important to take into account the considerable
comparative law variation that exists throughout the world.
As
I have argued elsewhere, through the rules and procedures of administrative
law, liberal societies seek to hold public administration accountable to a whole
network of democratic actors, not only organized social and economic groups (including
foreign firms), and these rules and procedures vary systematically, and
legitimately, among different systems of pubic law.
For
students of multilateral and bilateral trade regimes, the procedural dimension of
trade liberalization is extremely familiar.
The jurisprudence of the European Court of Justice and the WTO Dispute
Settlement Body, as well as the positive law of the two organizations, is full
of examples in which domestic regulatory agencies are required to revamp their
administrative procedure to allow foreign firms an opportunity to be heard
before taking action that would unfairly burden foreign products or
services. Bilaterally, the United States
has entered into a number of agreements, most notably with the European Union,
that seek to promote international trade through the harmonization of
regulatory standards, the mutual recognition of domestic standards, and, most
importantly for present purposes, a set of good governance principles aimed at guaranteeing
foreign (American and European) participation in administrative procedure and
preventing discriminatory regulation.
The
past year has seen a number of important policy statements by the United States
government underscoring its commitment to international regulatory cooperation. In 2011, the Administrative Conference of
the United States (ACUS), an independent federal agency, issued an impressive report analyzing the historical experience,
both positive and negative, of efforts at regulatory harmonization, information
exchanges, cross-border enforcement activities, and other forms international
regulatory cooperation across the federal government and setting the agenda for
an even more concerted effort going forward.
This was followed by an official ACUS recommendation, a presidential Executive Order on the steps to be taken by federal
agencies to improve international regulatory cooperation, and an American
Bar Association resolution in
the same vein. (Many thanks to Neysun
Mahboubi for chronicling these developments for the Comparative Administrative
Law Listserv.)
Although
in certain respects, this recent flurry of activity builds upon previous U.S. efforts
at trade liberalization, in particular the bilateral U.S.-EU relationship, there
is a marked difference in the public law dimension of the agenda. While the procedural commitments contained in
the U.S.-EU agreements of the past decade were clearly aimed at facilitating the
access of American and European firms to regulatory proceedings in the two jurisdictions,
the current set of policy statements directs federal agencies to advocate sound
(generally understood to be American) administrative law tout court. According to the
ACUS recommendation, federal agencies should “promote to foreign authorities
the principles that undergird the United States administrative and regulatory
process,” which in the Executive Order is captured by the direction to promote
“good regulatory practices internationally, as well as the promotion of U.S.
regulatory approaches, as appropriate," and in the ABA resolution by the
recommendation to “promote . . . the core principles of sound administrative
and regulatory process.”
If
the goal is indeed to promote a set of good governance principles worldwide,
then the task that has been set for federal agencies in their dealings with
their foreign counterparts is far more ambitious and complex than what we have
seen before. To simplify the analysis,
let us stick with the first of the eight principles which, according to ACUS,
should be part of this good governance initiative: “transparency, openness, and public
participation.” What, concretely, as a
matter of legal rules and procedures, does this principle entail? If the aim is simply, as it has been in the
past, to open up the process to outsiders, and in particular the market actors
that are sufficiently well resourced to take part in multiple regulatory
proceedings throughout the world, then something like what was set down in the U.S.-EU guidelines might be appropriate:
[p]romote
public participation through disclosure of and access to supporting documents,
particularly the timely release of the supporting rationales, analyses and data
for regulatory proposals, and a timely opportunity for all interested parties,
both domestic and non-domestic, to provide meaningful comments concerning
regulatory proposals, including supporting materials.
On
its face, at least, this procedure bears significant resemblance to U.S.
notice-and-comment rulemaking. (It
should be noted, however, that the actual European process is markedly
different, most importantly in that it is not backed by judicial review). If the aim is, by contrast, to fashion a good
public law of administration, then it is necessary to contemplate a much more
comprehensive set of legal rules and procedures, designed to hold regulators
accountable to the whole host of social and political actors prominent in
liberal democracies, and to acknowledge a wide range of comparative law variation
in how this common purpose of establishing an accountability network is
accomplished.
What
then, in an accountability-network scheme, is the set of rules and procedures
necessary to achieve “transparency, openness, and public participation”? If the objective is accountability to elected
officials, then the legislative veto procedures common in parliamentary regimes
might be contemplated. If it is accountability
to the general public, which often does not have the resources to engage in
complex regulatory proceedings, then it could be important to focus on freedom
of information legislation and parliamentary ombudsmen, legal techniques that
rely heavily on the indirect pressure that can be brought to bear by the press
and elected officials to influence public administration. If the goal is accountability to organized
interests in society, then “transparency, openness, and public participation”
might indeed be achieved by a rulemaking process of the notice-and-comment ilk,
similar to what is contained in the U.S.-EU guidelines. As an important strand of American legal
scholarship argues, however, this process has significant pathologies, and
therefore it is important to consider the alternative mechanisms that liberal
democracies have developed to ensure accountability to social and economic actors,
including balanced advisory committees of consumer, industry, environmental,
and other civil society groups. Advisory
committees have their own flaws, but there is no research showing that they are
systematically more problematic than notice-and-comment rulemaking.
In
most cases, the transparency and participation called for by a regulatory
process that is open to outside interests and foreign firms is not strictly at
odds with the other dimensions of fair and good administrative law, or with the
legal alternatives to notice-and-comment rulemaking that have been developed in
other legal systems. But it should be
frankly acknowledged that they are less likely to work to the advantage of
foreign market players, which do not have the same electoral clout as domestic
actors, and which are unlikely to be appointed to government advisory
committees. This is all to caution that
the task of fashioning a public law of administration that can be legitimately
promoted in the rest of the world is likely to prove considerably more
complicated than the procedural trade liberalization initiatives that have been
undertaken to date and that the two projects, while certainly related, should
be informed by different sets of normative and comparative law considerations.
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