Parallel Incorporation and Public Law

Abstract

Over the past fifty years, domestic regulators have turned to standards developed by private organizations as a means of complying with international law commitments to eliminate barriers to trade. What impact does this phenomenon of parallel incorporation, in which regulators in different countries incorporate the same private standards, have on domestic administrative law and public law? Through a case study of US and Australian regulators’ adoption of the same standards in aviation, the article exposes how parallel incorporation exacerbates existing accountability deficits of administration, contributes to the hollowing out of public capacity to review these incorporations, defies conventional understandings of delegation, and breaches basic understanding of rulemaking processes in both the United States and Australia. Using conventional administrative processes to implement solutions compelled by international commitments strains and transforms these processes. In this context, trade law imperatives result in accommodations from domestic public law not the reverse.

Keywords: incorporation by reference, rulemaking, nondelegation, standard setting, internal standards development organizations, parallel incorporation, global administrative law, global standard setting, WTO, notice-and-comment, consultation, Legislation Act, Australia