Regulation and Deregulation Policy and

Regulation and Deregulation is a revised version of papers presented at the Oxford Law Colloquium held at St John's College, Oxford, in March 1998. The Colloquium provided a meeting place for discussion between practitioners and academics interested in regulation. Current themes in the debate about how best to regulate are explored, concentrating in particular on the regulation of utilities and of the banking and financial services industry.

Christopher McCrudden is Reader in Law and Fellow of Lincoln College, Oxford. He co-edited Individual Rights and the Law in Britain (OUP, 1995) and his book on public procurement and equal opportunities in the EC is forthcoming from the Press.

List of contributors

xi

Preface

xiii

List of abbreviations

xiv

Table of Cases

xvii

Table of Legislation

xxii

Table of Treaties and Conventions

xxviii

PART 1 REGULATION AND DEREGULATION: GENERAL ISSUES

Regulation and Deregulation: An Introduction

3

(12)

Christopher McCrudden

Introduction

3

(1)

Regulation in Context

3

(2)

Choice of Instruments in Regulation

5

(3)

Regulating the Regulators

8

(1)

Regulation of Utilities

9

(3)

Regulation of Banking and Financial Services

12

(3)

Corrective Taxation as a Regulatory Instrument

15

(22)

ANTHONY OGUS

Introduction

15

(3)

Legal Differentiation of Command-and-Control and Taxation

18

(2)

Two Models for Impositions: Deterrence and Pricing

20

(2)

The Requirements of the Models: Liability and Quantum

22

(5)

Enforcement Variables

27

(3)

Targeting the Imposition

30

(2)

Predictability and Stability

32

(1)

Accountability and Government Control

33

(2)

Conclusion

35

(2)

Private Enforcement of Competition Law

37

(30)

KAREN YEUNG

Introduction

37

(2)

Private Enforcement of Competition Law

39

(10)

UK Competition Regulation

49

(15)

Conclusion

64

(3)

Challenging the Regulators: Strategies for Resisting Control

67

(12)

Doreen McBarnet

Christopher Whelan

Introduction

67

(1)

The Challenge of `Creative Compliance'

67

(1)

The Regulatory Response

68

(2)

Playing the System: Passive Resistance

70

(2)

Playing the System: Bargaining

72

(2)

Challenging on Law

74

(2)

The Future

76

(3)

Using Contracts to Enforce Standards: The Case of Waiting Times in the National Health Service

79

(16)

A. C. L. DAVIES

Introduction

79

(1)

Sanctions and Co-operation in NHS Contracts

80

(5)

Breaches, Sanctions and Co-operation: Empirical Examples

85

(8)

Conclusion

93

(2)

Using Rules Effectively

95

(28)

Julia Black

Introduction

95

(2)

Designing Rules

97

(1)

The Effectiveness of General Rules

98

(14)

Internalising Regulation

112

(8)

Redefining the Relationships of Regulators and Regulated

120

(3)

Regulation and Judicial Review: Perspectives from UK and EC Law

123

(22)

Paul Craig

Introduction

123

(1)

The Structure of Rule-making, Participation and Review

123

(10)

Standing to Seek Judicial Review

133

(8)

Substantive Grounds of Challenge

141

(3)

Conclusion

144

(1)

Public Law and Private Finance: Placing the Private Finance Initiative in a Public Law Frame

145

(26)

Mark Freedland

Introduction

145

(2)

What is the Private Finance Initiative?

147

(2)

Legal and Constitutional Basis of PFI

149

(4)

Process Accountability

153

(3)

PFI: Policy-driven vs Regulatory Control

156

(6)

Promoting PFI

162

(1)

Risk Value and Value for Money

163

(4)

Conclusion: A Project for Public Lawyers

167

(4)

PART 2 REGULATING UTILITIES

Transparency, Consistency and Predictability as Regulatory Objectives

171

(9)

John Swift Q.C.

Introduction

171

(1)

The Railways Act 1993

172

(1)

Decision-making Process and Accountability in ORR

173

(2)

Promoting Regulatory Consistency

175

(2)

Some Issues

177

(3)

Appendix 1

180

(1)

Appendix 2

181

(1)

Appendix 3

181

(2)

Appendix 4

183

(7)

Transparency, Confidentiality and Freedom of Information

185

(5)

Allan Merry

Introduction

185

(1)

Current Law

186

(1)

`Your Right to Know'

187

(2)

A Regulatory Approach

189

(1)

Appendix 1

190

(1)

Appendix 2

191

(218)

Transparency: Of Business or Process?

193

(8)

Gillian Holding

Introduction

193

(1)

Trends Towards Openness

193

(1)

The Move Towards Transparency of Business

194

(2)

Ensuring Transparency of Process

196

(3)

Looking to the future

199

(2)

Regulation of Price Discrimination and Predation by Dominant Firms: Lessons from the Ofgas ValuePlus Decision

201

(20)

Derek Ridyard

Introduction

201

(1)

Background to the BGT Case

202

(1)

The Ofgas Decision

203

(4)

Compatibility of the Ofgas Decision with Article 86 Precedents

207

(6)

Does the ValuePlus Decision Promote Efficient Market Outcomes?

213

(5)

Conclusions

218

(3)

Can Competition Law Supplant Utilities Regulation?

221

(14)

MICHAEL GREENFELL

Introduction

221

(1)

Background: The System of Utility Regulation in the UK

221

(6)

Introducing Market Competition to the Privatised Utilities

227

(3)

A New Prohibition on Abuses of a Dominant Position

230

(1)

A Residual Role for Utility Regulators

231

(2)

Conclusion: The Future for Utility Regulation

233

(2)

The Impact of the Competition Bill

235

(14)

MARGARET BLOOM

Introduction

235

(1)

The Competition Bill

235

(1)

Concurrent Powers for the Regulators

236

(2)

Concurrency: The Issues Raised

238

(8)

Whither Economic Regulation in the Longer Term?

246

(3)

Regulating the Telecommunications Sector: Substituting Practical Co-operation for the Risks of Competition

249

(26)

KEVIN COATES

Introduction

249

(1)

The Overlapping Regulatory Environment

250

(4)

Determination of Jurisdiction: Who Decides Who Decides?

254

(11)

Co-operation Within the Community Legal Framework

265

(4)

Co-operation Outside the Community Legal Framework

269

(2)

Impact of the Internet

271

(2)

Conclusions

273

(2)

Social Policy and Economic Regulators: Some Issues from the Reform of Utility Regulation

275

(20)

Christopher McCrudden

Introduction

275

(1)

Three Perspectives on the Functions of Regulators

275

(3)

The Issue of `Supermandates'

278

(3)

The Review of Utilities Regulation

281

(8)

Property Rights and the Power of Regulators

289

(6)

PART 3 REGULATING BANKING AND FINANCIAL SERVICES

Efficient Regulation of the Securities Market

295

(18)

RICHARD LINDSEY

Introduction

295

(3)

Transparency

298

(5)

Access

303

(4)

Competitioin

307

(4)

Conclusion

311

(2)

A Model of Financial Regulation

313

(8)

BRIAN QUINN

Introduction

313

(1)

A Model of Supervision

313

(4)

Individual Country Models

317

(1)

An International Model?

318

(1)

Conclusion

319

(2)

Electronic Commerce: American and International ProposalS for Legal Structures

321

(22)

David K. Y. Tang

Christopher G. Weinstein

Introduction

321

(1)

Electronic Contracting

321

(12)

Digital Signatures

333

(7)

Outlook and Conclusions

340

(3)

Trends in Financial Services and Influences on the Approach to Regulation

343

(12)

Jane Coakley

Introduction

343

(1)

Direction of Trends: Industry Level

343

(2)

Direction of Changes: Firm Level

345

(1)

Direction of Regulatory Response

346

(4)

Forward Look

350

(1)

Industry Developments

351

(1)

Regulatory Response

352

(2)

Conclusion

354

(1)

Globalisation and Implications for Cross-border Regulation

355

(12)

Tim Polglase

Introduction

355

(1)

Reasons for Consolidation

355

(1)

European Monetary Union (EMU)

356

(2)

Regulatory Issues Facing International Banks

358

(1)

Increase in Activities Undertaken

359

(2)

International Regulatory Co-operation

361

(4)

Conclusion

365

(2)

Selective Incorporation of Foreign Legal Systems to promote Nepal as an International Financial Services Centre

367

(42)

Howell E. Jackson

Introduction

367

(2)

Background

369

(3)

Approaches to the Development of a Nepalese Regulatory Structure

372

(9)

Theoretical Considerations

381

(19)

Implementing a Regime of Selective Incorporation for Nepal

400

(8)

Conclusion

408

(1)

Index

409

(1)

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Regulation and Deregulation Policy and Practice in the Utilities and Financial Services Industries

Summary

Author Biography

Table of Contents

Supplemental Materials