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Expertise and legitimacy in models of regulatory cooperation lessons from the transatlantic experience

Van Rooy, Charell 2022. Expertise and legitimacy in models of regulatory cooperation lessons from the transatlantic experience. PhD Thesis, Cardiff University.
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Regulatory cooperation (RC) is the creation of procedural mechanisms in Free Trade Agreements (FTAs) applicable to the preparatory stages of regulation. RC seeks to facilitate trade and thus ultimately aims at the convergence of regulatory standards. RC is essentially an ongoing regulatory dialogue between the executive branches of government. The widening and deepening of RC results in the existence of various policy laboratories across the globe in which countries learn from variation and best practices to work towards regulatory alignment. RC predominantly focuses on non-tariff barriers to trade and thus, essentially, RC is an expansion of the regulatory state in the risk society to the transnational level. In other words, RC is transnational (risk) governance. As a form of transnational (risk) governance, RC ought to be legitimate. This thesis argues that, as it stands, RC faces a legitimacy deficit that needs to be addressed. To that end, this thesis provides three solutions. Firstly, by applying the democracy-striving approach to RC, the argument is that the law establishing RC ought to provide for parliamentary oversight and strengthen the balanced representation of interested via participatory rights thus improving the input-legitimacy of RC. Secondly, as the principal focus of this thesis is on scientific expertise enhancing the throughput-legitimacy of RC, this research argues that scientific expertise is a compensatory element that legitimises transnational governance. More precisely, the key argument of this thesis is that when the executive drafts a planned regulatory measure in cooperation with a foreign government, this draft measure ought to rely on transnational expertise. The incorporation of scientific expertise in the decision-making process enhances the throughput-legitimacy of RC by increasing the quality of deliberation in the RC process. Thirdly, this stronger role for expertise requires balancing by better input-legitimacy on the expertise used via oversight by parliament and strong participatory rights. In other words, this thesis argues that the democratisation of expertise is required to address the fact that scientific legitimacy alone is insufficient to enhance the throughput-legitimacy of RC. Consequently, the democratisation of expertise addresses the problems of biased expertise by strengthening participatory rights and balances the issue of technocracy by creating oversight mechanisms for parliaments and strengthening participation rights, both on the RC process and the expertise used in the RC process, resulting in a full-circle argument regarding the legitimacy of RC.

Item Type: Thesis (PhD)
Date Type: Completion
Status: Unpublished
Schools: Law
Subjects: K Law > KZ Law of Nations
Uncontrolled Keywords: scientific expertise, expertise, expertise in policy-making, biased expertise, transnational expertise, regulatory science, risk regulation, legitimacy, regulatory cooperation, transnational governance, free trade agreements
Date of First Compliant Deposit: 22 September 2022
Date of Acceptance: 22 September 2022
Last Modified: 22 Sep 2022 15:17

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