The Regulatory Cooperation Chapter of the Transatlantic Trade and Investment Partnership: Institutional Structures and Democratic Consequences

Abstract

The Transatlantic Trade and Investment Partnership (TTIP) has the potential to remake political and legal relationships between the EU and the US and pave the way to a new form of global economic governance based on international regulatory cooperation. In particular, TTIP presents an historic opportunity for the European Union and the United States to remove regulatory divergence – today’s most prominent obstacle to trade exchanges –, thereby increasing economic growth for the citizens of both polities. Yet, the EU and the US have been attempting to reduce trade barriers since the 1970s.

Despite decades of co-operation, EU and US policymakers too often fail to mutually understand each other’s positions, giving rise to regulatory differences. As an international agreement predicted to contain a Horizontal Chapter – an innovative approach to international trade treaty-making containing a framework for future bilateral regulatory cooperation –, TTIP has the potential to transform this impasse, if approached correctly. The envisaged chapter would provide a ‘gateway’ for handling sectoral regulatory issues between the EU and the US, including by addressing both legislation and non-legislative acts, regardless of the level at which they are adopted and by whom. Yet with great promises come challenges too.

This article focuses on the structure, scope, discipline, institutional design, enforcement and implementation of the envisaged horizontal chapter, often defined Regulatory Cooperation Chapter. In so doing, it addresses some of the concerns currently raised by civil society, in particular the fear of a ‘race to the bottom’ that may stem from the operation of this chapter and provides some recommendations.

Keywords: TTIP, Regulatory Cooperation, Convergence, Divergence, Mutual Recognition, Equivalence, MRA, US-EU, race to the bottom, direct effect, implementation

JEL Classification: F10, F13, F15, K23, K32