Participation in a New Regulatory Paradigm: Collaboration and Constraint in TTIP's Regulatory Cooperation (original) (raw)

A classic theme in a new institutional setting Regulatory cooperation is a core aspect of mega-regional agreements in liberalizing trade and investment, as it enables the parties to bridge their regulatory divergences beyond what is defined in the text of the agreements. It relies on institutional and procedural structures that entail both the mutual adjustment of domestic procedures of the parties and new international fora where regulators meet to negotiate and deliberate. In the case of TTIP, regulatory cooperation will be the setting in which decisions will be prepared or made on the differences between EU and US regulation that could be usefully overcome; on the technical requirements that are unnecessarily duplicated; on the standards that should remain in place because they contend with public policy objectives in a way that would not be compatible with domestic standards; on the areas that are too distinct to justify attempts at mutual recognition or other forms of regulatory compatibility; on the standards that both parties will promote globally. This paper focuses on participation, which in addition to information exchanges and regulatory impact assessments, forms part of the trio of "good regulatory practices" that constitute the procedural basis of regulatory cooperation under TTIP. 1 The academic discussion on participation in TTIP has revived interest in the comparison between the US notice and comment system and the EU institutional practices of consultation as largely shaped by the European Commission. 2 From another angle, writings inspired on experimentalist approaches to regulation stress the importance of the involvement of stakeholders in the joint efforts of bridging the regulatory differences and regulatory gaps arising from domestic sector-focused regulation. 3 This paper takes a different approach. Building on the potential transformative effects of regulatory cooperation under TTIP, it analyses the Janus-faced nature of participation to shed light on the ambiguity that the label "good regulatory practice" may conceal. The