Development, Review, and Appeal of Regulatory Rules and Decisions

Mechanisms for ensuring effective decision-making

Core References

Understanding Regulation: Theory, Strategy, and Practice
New York: Oxford University Press, 1999, Chapters 7, 9, and 10.
Baldwin, Robert, and Martin Cave

Examines the benefits and costs of regulation, including how countries evaluate regulatory agency costs and benefits. Considers when self-regulation may be effective.

Using Rules Effectively
in Regulation and Deregulation, edited by C. McCrudden. Oxford: Oxford University Press, 1990.
Black, Julia

States that command and control regulation implies a proper use of rules. Discusses the relevance of using rules effectively and setting standards, in order to achieve legitimacy and avoid counterproductive regulation.

Interest Group Representation in Administrative Institutions: The Impact of Consumer Advocates and Elected Commissioners on Regulatory Policy in the United States
UCEI Energy Policy and Economics Working Paper No 002, University of California-Berkeley, 2002.
Holburn, G., and P. Spiller

Estimates the effect of consumer advocates on commissions and regulatory policy.

Review and Appeal of Regulators’ Decisions in the South Asian Context
in Proceedings of the SAFIR Workshop on Regulatory Strategy, S. K. Sarkar, editor, New Dehli, India: Tara Energy Research Institute, 2001, pp. 17-24.
Hossain, Kamal

Contrasts the perspectives, expertise, and roles of regulators and judges. Further considers regulatory process and the scope for review.

Utility Regulators — Decisionmaking, Structures, Resources, and Start-up Strategy
Public Sector Note no. 129, World Bank, Washington, D.C., 1997.
Smith, Warrick

Examines the decision making structure, the strategy for creating regulatory agencies and the role of financial and human capital.

Sectoral References


Listening Learning Leading: A Framework for Regulatory Excellence
University of Pennsylvania: 2015.
Coglianese, Cary

Explains that regulators should have a mission and exercise discretion while being held accountable. Regulators deal with complex, dynamic problems, and their success depends upon decisions made by others, including the regulated entities.


Promoting Intermediate Means of Transport: Approach Paper
Sub-Saharan Africa Transport Program Working Paper, number 20, World Bank, Washington, D.C., 1996.
World Bank

Puts forward a five-stage decision-making model for the designer/planner of projects or programs to improve mobility in rural areas.

Key Words

Cost-benefit analysis, Standards setting

Choice of Regulatory Instrument

[Note: Readers should cross reference this subsection with Regulatory Instruments (Primary and Secondary Legislation, Licenses, Concessions).]

Core References

Regulation and Private Sector Development in Latin America
Washington, D.C.: World Bank, 1995.
Guasch J., and P. Spiller

Establishes a direct relationship between instruments and regulatory credibility. Regulators legitimacy and regulation itself are achieved through different regulatory instruments, for instance, administrative procedures, contracts and so on.

Managing the Regulatory Process: Design, Concepts, Issues, and the Latin America and Caribbean Story
Washington, D.C.: The World Bank Group, 1999, Chapter 3.
Guasch, J. Luis, and Pablo Spiller

Describes the basic regulatory instruments and provides examples of where they have been used. Considers legislation, presidential decrees, and contracts.

Administrative Procedures as Instruments of Political Control
Journal of Law, Economics and Organisation 3: 1987, pp. 243-277.
McCubbins, M. D., R. G. Noll, and B. R. Weingast

Developing a critique of judicial review literature, recommends the use of administrative procedures as a regulatory instrument that enhances the effectiveness of regulation.

Sectoral References


Law and the Regulators
Oxford: Clarendon Press, 1997, Chapters 4-6.
Prosser, T.

Draws lessons from the liberalization process and examines regulation both without and through competition. Includes chapters dedicated to electricity, water and gas.


ICT Regulation Toolkit
Washington, D.C.: infoDev and the International Telecommunications Union, 2007, Modules 1 and 6.

Describes structures and practices of telecommunications regulatory agencies.

Regulatory Reform and Internationalization in Telecommunications
in Industrial Enterprise and European Integration edited by J. Hayward. Oxford, U.K.: Oxford University Press, 1995, pp. 239-269.
Thatcher, Mark

Builds upon the idea of convergence in telecommunications reform around the world. Examines the new framework that emerged after privatisation in Europe, focusing on the interaction between the changing strategies of governments and public telecommunication operators at the national level, and regulatory reform in the European Union context.


Road Concessions: Lessons Learned from the Experience of Four Countries Best Practice Study
Inter-American Development Bank, Washington, D.C., 1997.
Beato, Paulina

Analyzes issues and challenges related to private toll road developments in Latin American countries. Explores new schemes to mitigate some problems that often appear in road concessions. Illustrated with the regulations of four countries and four concession contracts.

Best Methods of Railway Restructuring and Privatization
CFS Discussion Paper Series, number 11, World Bank, Washington, D.C., 1995.
Kopicki, Ron and Louis Thompson

Provides context and guidance on restructuring railways. Addresses structural issues associated with rail enterprise reform, the design of specialized intermediary institutions that carry out much of the work of railway restructuring, and the management techniques that are appropriately adapted to railway reform and restructuring. Focuses on “best” methods and includes seven case studies: Japan National Railway, New Zealand Railways, Argentina Railways, Swedish Railways, British Railways, and railroads in the United States, and Canadian Railways.

Other References

The Private Enforcement of Law
Journal of Legal Studies 4: 1975, pp. 1-46.
Landes, W., and R. Posner

Examines the main arguments in the debate on public and private enforcement, and law effectiveness.

Regulation and the Crisis of Legalism in the US
in Law as an Instrument of Economic Policy, edited by Terence Daintith. European University Institute, Series A, Law, No. 7, Firenze: Badia Fiesolana, 1988.
Stewart, R.

Examines the U.S. debate over the use of administrative regulation and alternative instruments to achieve economic objectives, as well as the relationship between regulation and legalization.

Franchise Bidding for Natural Monopoly
in The Economic Institutions of Capitalism. London: Collier Macmillan, 1987.
Williamson, Oliver

Using the cable television industry as an example, argues that franchise bidding for natural monopolies suffers from severe contractual disabilities in the presence of technological and market uncertainties.

Key Words

Contracts, Franchises, Nationalisation, Privatisation, Proceduralisation, Regulatory rules, Public-Private Partnerships

Role of Government Policy Arm, Investors, Consumers, and Other Stakeholders in Regulatory Decision-Making

Core References

Bringing Citizen Voice and Client Focus into Service Delivery
Institute of Development Studies Working Paper no, 138, University of Sussex, U.K., 2001.
Goetz, A. M., J. Gaventa et al.

States that there are three different forms of consumer participation in the regulatory process: consultation (dialogue and information sharing), representation (forms of participation in the decision making process), and influence (accountability mechanisms to incorporate people’s preferences).

Five-Year Strategic Management Plan: 2003 – 2007
Nigerian Communications Commission

Describes the NCC’s values, mission, and responsibilities. For each area of responsibility, describes purpose, targets, and programs. Describes how the NCC engages stakeholders and relates with other governmental bodies.

Law and the Regulators
Oxford: Clarendon Press, 1997.
Prosser, T.

Provides an assessment of juridification of regulatory processes in UK and the US. In this context the author discusses the role of the regulator and its relationship with other actors.

Utility Regulators: Roles and Responsibilities
Note no. 128 in Public Policy for the Private Sector. Washington, D.C.: World Bank Group, 1997.
Smith, Warrick

Examines four factors that determine the optimal responsibility allocation between ministers and regulatory agencies: the relevance of technical and political criteria, the existence of conflicts of interest, the strength in specific expertise, and the capabilities of the regulatory agency.

Consumer Participation and Pro-Poor Regulation in Latin America
WIDER Discussion Paper No 2002/121, United Nations University, Helsinki, 2002.
Ugaz C.

Examines the regulatory experience of Latin American countries with different institutional endowments, focusing on the different mechanisms and outcomes of consumer participation in regulatory processes.

Key Words

Liberalization, Privatization, Regulatory agency, Sector Policy, Standard setting

Appeals of Regulatory Decisions: Legal Mechanisms and Internal Procedures

Core References

Understanding Regulation: Theory, Strategy, and Practice
New York: Oxford University Press, 1999, Chapter 22.
Baldwin, Robert, and Martin Cave

Presents several mechanisms to improve openness, transparency, and accessibility. Discusses the relevance of having a single or a collegiate regulator.

Strengthening of the Institutional and Regulatory Structure of the Brazilian Power Sector
World Bank Report on the PPIAF Project for Brazil Power Sector, Task 4, Washington, D.C., December 2002.
Brown, Ashley C., and De Paula, Ericson

Explains that having the Government itself hear appeals of regulatory decisions removes any benefit from having an “independent” regulatory agency and in many jurisdictions parties can appeal Government decisions to the courts. Special or pre-existing tribunals hear regulatory appeals in England, India, and Bolivia. Argues that unless the special tribunal is judicial, its decisions could be subject to judicial review. Direct appeals to the courts have the benefit of fulfilling constitutional or other legal rights available to citizens, however, where independent regulation is a new concept the judiciary is often unprepared to deal with such matters

Checks and Balances in Utility Regulation – The U.K. Experience
Note no. 185 in Public Policy for the Private Sector. Washington, D.C.: World Bank Group, May 1999.
Green, R.

Describes U.K. appeal process.

Regulatory Enforcement with Discretionary Fining and Litigation
Bulletin of Economic Research 54(2): 2002.
Rodriguez-Ibeas, Roberto

States that enforcement can be performed in different styles and can use a variety of mechanisms. Some of them concern the application of fines in an administrative or, in other cases, in a judicial process. Discusses how litigation and fines involve basic rules and principles that help protecting consumers.

Regulatory Interface with the Judiciary: The Indian Experience
in Legal Aspects of Regulation in South Asia, S. K. Sarkar and Vivek Sharma, eds., New Delhi, India: Tara Energy Research Institute, 2002, pp. 95-112.
Sundar, S., S. K. Sarkar, and Prerna Kohli

Examines how regulatory agencies differ from government and the judiciary. Further discusses relationships among regulatory agencies, government, and the judiciary, considering judicial intervention and jurisdiction.

Key Words

Administrative bodies, Appeal bodies, Litigation, Accountability

Judicial Review of Regulatory Agencies, Differences Between Appeal and Review Processes, and Developing and Implementing Processes to Reduce Likelihood of Review and Appeal

Core References

Understanding Regulation: Theory, Strategy, and Practice
New York: Oxford University Press, 1999, Chapter 5.
Baldwin, Robert, and Martin Cave

Examines the issue of who regulates. Discusses roles of legislative bodies, courts, central government departments, and local authorities.

Law and economics in developing countries
Stanford, Calif.: Hoover Institution Press, 2000, Chapters 3-4.
Buscaglia, Edgardo and William Ratliff

Examines the link between legal systems and reform of economic institutions and practices in developing countries. Makes recommendations on judicial review and dispute resolution.

Indiana Utility Regulatory Commission Rulemaking to Enhance Regulation
October 2003.
Storms, Scott R.

Outlines IURC’s authority and opportunities for appeal.

Other References

Judicial Review Handbook
5th ed. London: Hart Publishing, 2008.
Fordham, Michael

Provides a general overview of judicial review of administrative decisions and discusses the convenience of reviewing legality and opportunity of regulatory procedures.

The Uses of Discretion
Oxford: Clarendon Press, 1992.
Hawkins, Keith

Explores some of the central issues involved of discretion by government organizations. Presents a variety of analyses of by lawyers and social scientists.

Regulatory Agencies and the Courts
in Palgrave Dictionary of Law & Economics, vol 3. London: Macmillan, 1998.
Newman, P. (ed.)

Explains concepts, procedures and problems confronted in the judicial review of administrative decision-making process.

Reviewing Judicial Review: Administrative Law and Government Action
Oxford: Oxford University Press, 1994.
Richardson and Genn

Says that judicial review is examined through the lens of administrative law principles and examines several issues, including discretion, interdiction or arbitrariness and opportunity control.


Alternative Dispute Resolution Procedures

Core References

Control, Communication, and Power: A Study of the Use of Alternative Dispute Resolution of Enforcement Actions at the U.S. Environmental Protection Agency
Negotiation Journal 17(2): 2001, pp. 175-191.
Bourdeaux, C., R. O’Leary, and R. Thornburgh R.

Focuses on a specific agency, and provides analysis of alternative dispute resolution mechanisms.

Law and economics in developing countries
Stanford, Calif.: Hoover Institution Press, 2000.
Buscaglia, Edgardo and William Ratliff

Examines the link between legal systems and reform of economic institutions and practices in developing countries. State that poverty largely results from flaws in legal institutions. Recommend substantive and procedural legal factors for developing countries, including recommendations on judicial review and dispute resolution.

Punishment versus Cooperation in Regulatory Enforcement: A Case Study of OSHA
Administrative Law Review 49 (4): 1997.
Shapiro, Sidney A, and Randy S. Rabinowitz

Focuses on the debate between the compliance and deterrence approaches for enforcing regulation, in terms of punishment and cooperation. Alternative procedures to resolve disputes are discussed, regarding an administrative procedure case.

Key Words

Arbitration, Alternative Dispute Resolution, Conciliation, Mediation

Case Studies

Five-Year Strategic Management Plan: 2003 – 2007
Nigerian Communications Commission

Financial Penalties – The Process

Framework for Infrastructure Regulation
Tata Energy Research Institute, New Delhi, India, 2000. Purchase.
Sundar, S. and S. K. Sarkar