Abstract
This chapter puts forward an alternative path for theorizing the interaction of national legal systems, next to regulatory competition models and comparative law endeavors, called legal emulation. Regulatory competition suffers from its very restrictive assumptions, which make it a relatively rare occurrence in practice. It is also endogenously driven, ignoring legal change brought about from within the law, and it takes an impoverished view of law. As for comparative law, it has tended to remain mostly monodisciplinary. It usually lacks a dynamic dimension. Legal emulation tries to combine the more dynamic perspective of regulatory competition, with the endogeneity of comparative law. It rests on a theoretical perspective whereby the law is conceived as the outcome of a series of choices—substantive or institutional, fundamental, or transient—made between different options (legal science would then be the investigation of the set of those choices). This chapter provides an outline of the legal emulation model. Legal emulation ties together and explains a number of existing phenomena in many legal orders, such as constitutional, EU or human rights review; impact assessment; peer review within networks of authorities; or the open method of coordination. Finally, the chapter outlines some consequences of adopting a legal emulation model.
Pierre Larouche is Professor of Competition Law, Tilburg Law School, Tilburg University, and a founding director of the Tilburg Law and Economics Center (TILEC).
I am grateful to my colleagues on the project, Saskia Lavrijssen, Filomena Chirico, Maartje de Visser and in particular Péter Cserne, for their useful comments throughout the preparation of this chapter. As always, responsibility for the content remains mine alone.
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Notes
- 1.
Chapter 2 of this book.
- 2.
Tiebout 1956.
- 3.
Samuelson 1954.
- 4.
- 5.
Including not just substantive law, but also procedure and institutions, and even the expertise and quality of the local legal community; see Romano 1985.
- 6.
The leading contribution remains Cary 1974.
- 7.
- 8.
See Bebchuk 1992, leading to a series of articles on why takeover regulation is subject to a race to the bottom.
- 9.
Radaelli 2004, 9–10.
- 10.
Easterbrook 1983, 34–35.
- 11.
Gabor 2010, 15.
- 12.
As Gabor, ibid., points out, even though typically subsidies are used to try to improve the competitiveness of local firms, there are also cases where regulatory reform is used instead of public funds.
- 13.
Ibid., 18.
- 14.
As Gabor, ibid., acknowledges, the difference between regulatory competition through the mobility of production factors and through the mobility of firms themselves can be slight.
- 15.
As driven by the Single European Act [1987] OJ L 169/1.
- 16.
Inserted at Article 3b of the EC Treaty, as it then was, and now to be found at Article 5 TEU.
- 17.
- 18.
Van den Bergh 2000, 463.
- 19.
- 20.
ECJ, Judgments of 18 March 1980, Case 52/79, Debauve [1980] ECR 833 and Case 62/79 Coditel v. Ciné-Vog [1980] ECR 881. In these cases, the ECJ easily accepted that Member States could invoke intellectual property protection or even different advertising regulation to prevent broadcasts from other Member States from circulating on their territory, thereby severely hampering the prospects for the internal market in broadcasting.
- 21.
The interests involved in these discussions cannot be easily summarized. Besides public service broadcasters and private broadcasters, whose positions were the sharpest, the European content producers also had a stake, as well as the advertising sector. Member States were divided. In the European institutions, both the liberal, pro-internal market and the ‘European identity’ constituencies were involved. Much of the discussion took place within the Council of Europe, whose 1989 Convention on Transfrontier Television, CETS No. 132, prefigured Directive 89/552 of 3 October 1989 [1989] OJ L 298/23, the Television Without Frontiers (TWF) Directive.
- 22.
Ibid., now Directive 2010/13 of 10 March 2010 (Audiovisual Media Services Directive or AMSD), codifying wide-ranging amendments through Directive 2007/65 of 11 December 2007 [2007] OJ L 332/27.
- 23.
Article 2(2) and ff. AMSD contain a complex set of rules to determine which single Member State has jurisdiction over a broadcaster. The main relevant criteria are the location of the head office and of the main editorial decisions, both of which can be influenced by the broadcaster. Note that the location of the target audience is not a relevant criterion.
- 24.
Ibid. Article 4(1).
- 25.
Ibid. Article 3(1). In the case of broadcast programs, the only exception is in cases where the foreign broadcast would infringe public order or be injurious to minors, and even then a specific procedure must be followed before a Member State can prevent the circulation of broadcasts: Article 3(2).
- 26.
Traditionally, the UK and Luxembourg. For instance, from its Luxembourg base, RTL built very successful broadcasting operations in France, Belgium, the Netherlands and Germany.
- 27.
In particular Belgium and the Netherlands.
- 28.
It is interesting, on this point, to compare ECJ, 5 October 1994, Case C-23/93, TV10 SA v. Commissariaat voor de Media [1994] ECR I-4795, with ECJ, 5 June 1997, Case C-56/96, VT4 Ltd v. Vlaamse Gemeenschap [1997] ECR I-3143. The first case relates to a set of facts occurring before the entry into force of the TWF Directive, the second, after that entry into force. In the first case, the ECJ effectively allowed the Netherlands to exert jurisdiction over TV10 (established in Luxembourg), invoking the abuse of rights doctrine (Case 33/74, Van Binsbergen [1974] ECR 1299). In the second case, the ECJ interpreted the Directive as preventing Belgium from claiming jurisdiction over VT4 (established in the UK). In 2007, when the Directive was revised and renamed, Article 3(2) to 3(5) were added to deal with so-called ‘circumvention’, but it is not clear how these provisions fit within the overall scheme of the Directive.
- 29.
Indeed, for a broadcaster to seek to fall under the jurisdiction of liberal Member State A while aiming its program at the audience in restrictive Member State B, some organisational and transaction costs are incurred. This leaves Member State B with some margin to be more restrictive than A before broadcasters serving B contemplate seeking to fall under the jurisdiction of A.
- 30.
ECJ, 9 March 1999, Case C–212/97 Centros [1999] ECR I–1459; 5 November 2002, Case C-208/00 Überseering [2002] ECR I–9919 and 30 September 2003, Case C–167/01, InspireArt [2003] ECR I–10155.
- 31.
Unless of course Danish authorities had concrete evidence of fraudulent conduct on the part of the company or its shareholders.
- 32.
- 33.
See Ringe 2011, 107.
- 34.
See the study of Bratton 2011. For example, the ECJ allowed Member States that follow the real seat theory to deny their firms the ability to move their head office without changing their governing law: ECJ, 16 December 2008, Case C-210/06, Cartesio [2008] ECR I-9641.
- 35.
- 36.
See also Radaelli 2004, 7–8
- 37.
- 38.
Garcimartín Alférez 1999 argues that private international law can help to solve externality problems. Note that externalities could also be present at firm level, i.e., the choice of a firm for its preferred law inflicts costs on others, without the firm being forced to bargain with the persons bearing those costs.
- 39.
See also Barnard 2000, 65–66.
- 40.
- 41.
- 42.
In addition, as pointed out by Radaelli 2004, 12–14, regulatory competition models posit a very simple and linear behavior on the part of firms.
- 43.
Unless there is also an issue of prestige or standing—global or local—in choosing the jurisdiction to which the firm will be subject as regards corporate governance.
- 44.
Assuming that they cannot escape the application of such laws.
- 45.
This is a central flaw in a line of argument often used by lobbyists: the law of a given jurisdiction should be changed because firms find it detrimental. This argument only holds if the law is crucial to the location decisions of firms. Otherwise, it is perfectly understandable that the authorities in a jurisdiction would make a tradeoff and conclude that, given the overall attractiveness of the jurisdiction, firms will accept that the law is not as favorable as they would desire.
- 46.
As pointed out as well by Radaelli 2004, 15–16.
- 47.
Unless of course there is a mutual recognition obligation which binds the various jurisdictions to accept each others’ standards. Given that mutual recognition is usually bound with some form of agreement on the content of the standards (or at least on their objectives), what remains in the end is a fairly edulcorated form of regulatory competition. Another, more remote possibility is that a jurisdiction could be put under pressure, presumably from its own citizens, as a result of the decisions of firms not to market products perceived by citizens as essential or desirable, because the firm considers that the product standards in that jurisdiction do not enable it to achieve its business objectives.
- 48.
Heading 10.4.1.
- 49.
For historical background, see Zweigert and Kötz 1998, 48 ff.
- 50.
See David 1982, 4.
- 51.
For an account of the evolution of comparative law in the last decades, see Reimann 2002.
- 52.
Zweigert and Kötz 1998, 48 ff.
- 53.
- 54.
- 55.
They situate comparative law primarily in relation to other parts of legal science: Zweigert and Kötz 1998, 6–12.
- 56.
Ibid., 34.
- 57.
One can argue whether early comparative law really overlooked the issues raised by Zweigert and Kötz, ibid., 35.
- 58.
Ibid., 34.
- 59.
Zweigert and Kötz themselves did not push their idea of standing outside of one’s own system as far as to say that one should try to stand outside of the law. That step was taken by subsequent large-scale comparative law endeavors, such as the Common Core Project (see Bussani and Mattei 1997–1998) or the Ius Commune Casebooks Project (see Larouche 2000).
- 60.
See Michaels 2006, 343–363.
- 61.
For example, see the study of product liability and Directive 85/374 on product liability [1985] OJ L 210/29 in van Gerven et al. 2000, 598 and ff.
- 62.
Zweigert and Kötz 1998, 53–54.
- 63.
Ibid., 59. It is no coincidence that this approach coalesced at the same time and in the same location as the Paris Exhibition of 1900.
- 64.
- 65.
As put forward by Zweigert and Kötz, ibid.
- 66.
We leave aside here the communist family of legal orders, which used to be treated separately but is now of mostly historical interest.
- 67.
See for instance the recent work of Glenn 2010. As long as comparative law focused on the formal law, mostly on legislation, the influence of the colonial era was unmistakable and it was possible to subsume non-Western systems under the main Western families. That assumption becomes untenable as soon as comparative law takes a broader perspective and looks at ‘law in context’, so that the specificities of non-Western legal traditions come much more strongly to the fore.
- 68.
Quality can be measured according to many parameters, be it efficiency, effectiveness, satisfaction of the parties, etc.: see, Heading 10.4.4..
- 69.
As Reimann 2002, 675–676.
- 70.
Mattei 1997, 97.
- 71.
Michaels 2006, 373–376.
- 72.
- 73.
As was pointed out by Schlesinger 1970, 1, the English designation lends itself easily to this view, whereas the German one (Rechtsvergleichung) and to some extent the French one (droit comparé) point more in the direction of a method rather than a field of law.
- 74.
- 75.
For instance, see the clear statement made at the outset of Schlesinger 1970, 1.
- 76.
In addition to any other method which might be used, and in particular to interdisciplinary methods such as law and economics.
- 77.
- 78.
- 79.
Ibid., 40.
- 80.
Indeed, in the introduction to von Bar et al. 2009, the authors write, regarding the private laws of Europe, that the purpose of the DCFR is to “sharpen the awareness of the existence of a European private law and also […] to demonstrate the relatively small number of cases in which the different legal systems produce substantially different answers to common problems.” (at 7).
- 81.
Ibid.
- 82.
The most vocal and radical proponent of that line of criticism remains undoubtedly Pierre Legrand. See for instance Legrand 1996.
- 83.
See also Michaels 2006, 369–372.
- 84.
Including not just other areas of law than the one which the researcher would spontaneously consider, but also devices perceived as non-legal, such as soft law instruments, customs, etc.
- 85.
To borrow the terminology used by Zweigert and Kötz 1998, 4–5.
- 86.
Ibid., 35.
- 87.
- 88.
- 89.
- 90.
This point is well expounded in Ogus 2002.
- 91.
See De Coninck 2010.
- 92.
See also Michaels 2006, 367–369.
- 93.
For instance, De Coninck 2010, illustrates her argument by using behavioral economics to find the starting point for her comparative research.
- 94.
As chronicled in Riemann 2002.
- 95.
Schlesinger 1970 offers a good account of migration of legal ideas at 8–14, and hints at dynamic explanations at 28, without developing this point much further.
- 96.
Although Easterbrook 1983, Easterbrook ends up arguing for a moderate form of federal intervention via a revised State action doctrine under the Sherman Act.
- 97.
I.e. between the branches of government, but perhaps more even between departments within one of the branches of government, namely the executive.
- 98.
These other competitive relationships are also present in the USA.
- 99.
Radaelli 2004, 5–7.
- 100.
Ibid., 10–12 and 16–18.
- 101.
Gabor 2010, 15–17, 23–24.
- 102.
- 103.
- 104.
Ibid., 5.
- 105.
Ibid., 18–19.
- 106.
Ogus 1999.
- 107.
The distinction between facilitative and interventionist law seems to run along the same lines as the civil law distinction between suppletive and imperative law (typically found in contract law, especially), albeit for different reasons.
- 108.
Ogus and Garoupa 2006.
- 109.
The range of costs envisaged by the authors is quite broad and complete, including (i) the cost of learning the new law to be introduced, (ii) rent-seeking by entrenched interests, (iii) loss of consistency in the receiving legal order as a consequence of the change, (iv) private adjustment costs and (v) loss of innovativeness flowing from the removal of variation: ibid., 345–46.
- 110.
Ibid., 346–48.
- 111.
Ibid., 48–53.
- 112.
Ibid., 345.
- 113.
For a representative application of Article 5 TEU (formerly Article 5 EU), see ECJ, 8 June 2010, Case C-58/08, Vodafone (Roaming Regulation) [2010] ECR I-4999, at para 51–71. For a sharper application of proportionality (without expressly framing the reasoning in such terms), see ECJ, 24 November 2011, Case C-70/10, Scarlet, nyr.
- 114.
Hence the quick decrease in marginal utility when piling up country reports, in large-scale comparative law efforts. For instance, in the 27-member EU, it is hard to imagine that a given issue would be dealt with in 27 equally different and relevant ways.
- 115.
These principles can also be seen as objectives in and of themselves, which have however acquired a higher status such that tradeoffs involving these objectives are not carried out in the same fashion as tradeoffs between ‘ordinary’ objectives. For the purposes of this chapter, the issue can be left open.
- 116.
It always comes as a surprise to a researcher to find, within a given legal order, ancient traces of options which were not chosen, which correspond to the chosen options in other legal orders. In general, most options are presented in most legal orders: differences arise from the choices made, not from the options available. A similar point is made by Sacco 1991a, 21–24, where he insists that legal systems contain ‘legal formants’ which point in different directions.
- 117.
- 118.
As mentioned supra, note 38, the regulatory competition literature ignores the ‘local’ externalities potentially caused by firm-level decisions upon other market players and other members of society. Even if the conditions for the model to work are met, the authorities could thus receive signals that are distorted by externalities.
- 119.
Therefore bringing the choice ‘specific regime or not’ out of the purview of the inquiry and into the range of choices held constant.
- 120.
Either legislatively or judicially.
- 121.
Which happens less frequently than comparatists would like to believe.
- 122.
Such as the choice of legal criteria or the formulation of legal definitions.
- 123.
The ECJ can also review the conformity of EU law with the Treaties and fundamental rights guarantees, now enshrined in the EU Charter of Fundamental Rights.
- 124.
This is often referred to as the ‘minimal impairment’ test. Some significant variation can be observed, however, as to how strictly the test is carried out, i.e., whether the measure in question must truly be the least restrictive of all possible measure, or whether it must simply strike a reasonable compromise.
- 125.
For instance, in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, 1982, c. 11, Article 1.
- 126.
ECJ, 10 February 2009, Case C-110/05, Commission v. Italy [2009] ECR I–519.
- 127.
Ibid. at 65.
- 128.
As was done recently in Scarlet, supra, note 113.
- 129.
- 130.
It depends on the extent of the review that the clause mandates. The review can be limited to measuring the effectiveness of the measure under review within the legal order in question (i.e. were the objectives achieved? did the measure work?), or it can be more ambitious, extending also to a comparison of the effects of the measure with those of comparable measures in other jurisdictions. In the latter case, such review comes very close to an ex ante impact assessment, for the purposes of this chapter.
- 131.
C.f. the beleidsdoorlichting exercise in the Netherlands.
- 132.
European Commission, Impact Assessment Guidelines, SEC(2005) 791 (15 June 2005). For the purposes of this chapter, the newer Impact Assessment Guidelines, SEC(2009) 92 (15 January 2009) will be used (see pp. 21 et seq.). They do not differ from the 2005 Guidelines as far as the scope of this chapter is concerned.
- 133.
See Chap. 12.
- 134.
Formalization at EU level is typically fraught with tensions, since the authorities which originated the network tend to resist what they perceive as a takeover by the EU institutions.
- 135.
The European Competition Network (ECN) regroups the Commission and all national competition authorities (NCAs) from the Member States. It is the forum for cooperation between the Commission and the NCAs pursuant to Regulation 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] [2003] OJ L 1/1. It finds its basis in a Joint Statement of the Council and the Commission on the Functioning of the Network of Competition Authorities, attached to Regulation 1/2003, as well as a Commission Notice on cooperation within the Network of Competition Authorities [2004] OJ C 101/43. Prior to the creation of the ECN, the authorities had already launched an International Competition Network (ICN) out of their own motion: see www.internationalcompetitionnetwork.org. Accessed 14 My 2012.
- 136.
Following the 2010 reform, a European Supervisory Authority has now been put in place, comprising a European Banking Authority (Regulation 1093/2010 [2010] OJ L 331/12), a European Insurance and Occupational Pensions Authority Regulation (Regulation 1094/2010 [2010] OJ L 331/48) and a European Securities and Markets Authority (Regulation 1095/2010 [2010] OJ L 331/84). These authorities bring together the respective supervisory authorities of the Member States.
- 137.
After the national regulatory authorities (NRAs) for electronic communications formed the Independent Regulators Group (IRG) in 1997 (www.irg.eu), the Commission created a European Regulators Group for Electronic Communications Networks and Services (ERG) by Decision 2002/627 [2002] OJ L 200/48. Following the reform of the regulatory framework in 2009, the ERG was replaced by the Body of European Regulators for Electronic Communications (BEREC), as created by Regulation 1211/2009 [2009] OJ L 337/1.
- 138.
In 2003, the Commission created the European Regulators Group for Energy and Gas (ERGEG), through Decision 2003/796 [2003] OJ L 296/34. Following the reform of the regulatory framework in 2009, the ERGEG was replaced by the Agency for the Cooperation of Energy Regulators (ACER), created by Regulation 713/2009 [2009] OJ L 211/1.
- 139.
A European Regulators Group for Postal Services (ERGP) was created by a Decision of 10 August 2010 [2010] OJ C 217/7.
- 140.
In the case of rail transport regulation, a number of regulatory authorities took the initiative to create an Independent Regulators Group—Rail in 2010, see www.irg-rail.eu. Accessed 14 May 2012.
- 141.
See Chap. 13 of this book.
- 142.
Referring back to the discussion of comparative law Heading 10.3.1.2, these networks failed to move to a vantage point above the national legal orders and failed to develop an analytical or even normative discourse.
- 143.
See Szyszczak2006.
- 144.
- 145.
Common law systems can also be subdivided between English (and Commonwealth) and American families, but in the comparative law literature, that division is not made so often and so clearly as that between Romanic and Germanic families on the civil law side.
- 146.
Heading 10.4.3.
- 147.
The distinction between institutional and substantive choices is introduced ibid.
- 148.
The work of Van Gerven et al. 2000 certainly showed, on a number of substantive issues, a greater alignment between the English and German legal orders than between the French and German legal orders.
- 149.
Heading 10.3.2.1.
- 150.
The seminal article is La Porta et al. 1998. See also the review made by the main authors 10 years later: La Porta et al. 2008. For a solid critique of Law and Finance, see Berkowitz et al. 2003. Hadfield 2008 presents a far more nuanced analysis than the Law & Finance literature; that analysis would fit well within the theoretical perspective sketched out in this chapter.
- 151.
See the ‘Doing Business’ project website at www.doingbusiness.org. Accessed 14 May 2012.
- 152.
As they are made in the model of Ogus and Garoupa 2006 for instance.
- 153.
See among others Sacco 2001.
- 154.
This line of literature stems from the work of Watson 1993. The transplant effect is well described and studied in Ogus and Garoupa 2006 and Berkowitz et al., supra note 150. In “Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences” (1998) 61 Mod L Rev 11, Günther Teubner explores this effect in greater depth, leading him to rebrand transplants as irritants.
- 155.
See the contributions in Sacha Prechal et al., eds., The Coherence of EU Law (Oxford: OUP, 2008).
- 156.
Leading to the conclusion and enactment of a harmonization instrument, such as a directive.
- 157.
As embodied in the prior choices, some ancient, which could have ossified and could be relying only on inertia and path dependency for their legitimation.
- 158.
Berkowitz et al. 2003.
- 159.
As formulated by Van Gerven 1996, 539–542.
- 160.
The more strategic use of comparative law also implies that legal education is changed, so as to make the national legal community less apprehensive toward foreign law and more familiar with comparative law. Legal emulation also gives greater coherence to those efforts.
- 161.
See the discussion of the purposes of the DCFR, referred to von Bar et al. 2009.
- 162.
Chapter 3 of this book.
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Larouche, P. (2013). Legal Emulation Between Regulatory Competition and Comparative Law. In: Larouche, P., Cserne, P. (eds) National Legal Systems and Globalization. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-885-9_10
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