Regulatory Divergence and Convergence in the Age of Megaregionals
Edited by Shin-yi Peng, Han-Wei Liu and Ching-Fu Lin
Chapter 4: Lessons from the TPP Regulatory Coherence Chapter: The laws governing unsolicited commercial electronic messages as a case study
Although the TPP has essentially collapsed, its Regulatory Coherence Chapter will serve as a useful reference for future trade negotiations. What lessons can be learned from the TPP? First, under the TPP text, each party has the right to decide to what extent its domestic regulation should be subject to the TPP regulatory coherence obligations. The applicable coverage of the Regulatory Coherence Chapter, as a result, is entirely uncertain. Second, it is not entirely clear whether the application of the Chapter is only limited to TPP parties’ secondary legislation, or the Chapter is also applicable to parties’ primary legislation. The examination of the relevant provisions of the Chapter in accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties confirms that the Chapter was politically motivated by the desire to have ambiguously drafted provisions and to leave plenty of room for individual interpretation as to ‘who’ is required to apply regulatory impact analysis (RIAs) to their decision-making. Third, as demonstrated by the anti-spam laws of the TPP parties, the Regulatory Coherence Chapter falls short of a clearly defined threshold for how a RIA operates. Fourth, the RIA process under the TPP is also weakened by the lack of a clear and enforceable mechanism to ensure that the trade impact will be properly taken into account by all regulatory agencies. Finally, without sufficient quality assurance mechanisms, the cost-benefit analysis could not be properly applied. There are critical methodological questions that must be answered. This chapter concludes that the laws governing unsolicited commercial electronic messages provide an interesting case study on the challenges for the Regulatory Coherence Chapters in the megaregionals.
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