Partial Formalization of the Regulatory Network
European University Institute - Department of Law (LAW); Bocconi University - Department of Law
March 1, 2010
The article examines the operation of the International Competition Network, a broad forum for antitrust enforcers from around the world. The ICN is one of many international regulatory networks that have emerged over the past couple of decades, providing an alternative to the standard mode of international cooperation through international treaties and organizations. While a number of scholars have noted the growth of such networks and their potential to provide an alternative route for transnational cooperation, this paper uses the ICN as a case study in an effort to provide a framework for evaluating the efficacy and accountability of cooperation mechanisms in transnational regulatory networks. Specifically, two claims about such networks are the focus of investigation. On the one hand, their proponents have argued that regulatory networks are an effective mechanism for cross-border cooperation because they provide an informal forum, shielded from political pressure, where regulators can interact about common problems, thus fostering informal bonds and mechanisms of norm enforcement. Opponents, on the other hand, suggest that such networks, in part due to their shielded nature, can be used as instruments of legal hegemony either by a particular dominant nation or by western nations vis-à-vis the developing world.
While as a descriptive matter, regulatory networks are less formal than a treaty regime, the article points to both efficacy and accountability problems inherent in relying on purely informal relationships and bonds for both learning and for norm creation and enforcement. From that perspective, it is encouraging that the ICN is not a purely informal network. The process of learning and norm-generation in the ICN proceeds through benchmarking of international experience and selection of best enforcement practices. This mechanism has been borrowed from the business context, as a vehicle for decentralized learning, into many regulatory regimes where a one-size-fits-all approach may be inappropriate. Yet comparison to the disciplines of best practice benchmarking in the firm demonstrates how this tool for decentralized learning can, in the regulatory context (and perhaps inadvertently) degenerate into a mechanism for top-down harmonization, silencing the experiences and needs of newer regimes.
The discussion is illuminated through evidence from interviews with competition officials to illustrate some of the limitations of current ICN processes and to support an emergent view that the ICN is not particularly responsive to the needs and of newer antitrust agencies from developing nations. Moreover, the interviews also point to ways in which officials attempt to overcome these limitations when designing or correcting domestic antitrust rules and procedures. One common theme is the trend towards participation in regional competition groupings, which not only enhance the capacity and credibility of enforcement efforts, but can also provide the shared context necessary for joint exploration of best practices. The article argues that the ICN could be reconceptualized as a network of networks, providing a venue for the creation of clusters and the coordination and comparison of their experiences.
Number of Pages in PDF File: 69
Date posted: March 5, 2010 ; Last revised: December 28, 2013