What does experimenting with regulation involve?

  • Joel Colón-Ríos “Experimentation and Regulation” (Cross-cutting theme paper prepared for the NZ Law Foundation Regulatory Reform Project, 2013). Experimentation, in the context of regulation, usually involves the adoption of provisional regulatory regimes at a small scale with the purpose of assessing their effects; successful experimental regimes are then implemented at a regional or national level. Regulatory ‘failures’ are thus treated as ‘evidence’, and therefore as providing opportunities to design superior solutions to existing social problems. This paper seeks to shed some light into the experimental approach in three main ways. First, by showing that, although closely connected, there are important differences between experimentation and learning. Second, by examining the limits of experimentation: some regulatory contexts make the experimental method either problematic or inappropriate. Third, the paper proposes a framework that New Zealand policy makers can use to determine whether experimentation is a viable option in the context of a particular policy initiative.

  • James Zuccollo, Mike Hensen and John Yeabsley “Weathertight Buildings and Performance-based Regulation: What Lessons can be Drawn from a Complicated and Evolving Situation?” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). 12.6.4 Explicit regulatory experiments A precautionary approach[46] to dealing with the uncertainty of losses would be to limit exposure until the risks are known. Mumford recommends viewing regulation as an experiment to encourage better recognition of the need for continued monitoring and consequential adjustments to ensure that regimes continue to be effective and efficient.[47] For example, the regulator could allow 1,000 houses to be consented in a particular new design. The outcome for those houses could be regularly reviewed until the regulator was confident that they had a good idea of the risks involved in building that type of house. They could then decide on how to proceed, given society's risk preferences. The word "experiment" carries connotations of measurement and opportunity to learn. These connotations suggest a managed approach to both regulatory risk and evidence-based evolution of the regulation in response to changing circumstances. Applying the analogy of an experiment to regulation raises several practical issues for regulators establishing the experiment including the following: (a) how to define a control and trial for the experiment; (b) how to set and manage the target level of participation in the trial; (c) how participants would choose to join the trial or remain in the control group; (d) how long the experiment would need to run to allow measurement of results; and (e) how to establish feedback and learning loops. A key question for regulators is how to design and manage a more effective and efficient experiment[48] to test the effect of a change in regulation. The challenge for regulators is how to apply an "experimental" approach to changing regulation for complex long-life products because of the complexity and difficulty in defining and controlling the experiment, and the time required to complete the experiment.

Experimenting with building regulation

  • James Zuccollo, Mike Hensen and John Yeabsley “Weathertight Buildings and Performance-based Regulation: What Lessons can be Drawn from a Complicated and Evolving Situation?” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). The changes in the building industry were not simple; in particular, they did not constitute a well-designed "experiment"[30] able to be controlled and assessed to analyse cause and effect. The hypothesis that the experiment was supposed to test, that is, the comparative durability of houses constructed using the new processes, was not clearly stated, and the experiment was radically altered part-way through by the decision to allow the use of untreated framing timber.

  • James Zuccollo, Mike Hensen and John Yeabsley “Weathertight Buildings and Performance-based Regulation: What Lessons can be Drawn from a Complicated and Evolving Situation?” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). A drawback of both the qualified approval and managed experiment approaches is that they rely on prescriptive regulation to manage risks in performance-based regulation. This can increase the cost of innovation and slows the adoption rate of innovation. This is why implementing robust accountability structures in performance-based regulation is so important, as robust accountability structures allow for risk to be reduced and opportunities for innovation to be increased.

Experiments in competition law and networked industry regulation

  • Paul Scott “Competition Law and Policy: Can a Generalist Law be an Effective Regulator?” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). A prevailing theme of this part of the New Zealand Law Foundation Regulatory Reform Project has been that competition law alone cannot be the sole form of regulation; and that competition law alone cannot police certain industries, in particular, network industries. New Zealand tried to do so, but the dominant view is that New Zealand's experiment in light-handed regulation failed.[1] A number of commentators blame New Zealand's monopolisation provision – section 36 of the Commerce Act 1986.[2] This chapter focuses mainly on that.

  • Paul Scott and David De Joux “Uncertainty and Regulation: Insights From Two Network Industries” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). The New Zealand experience with deregulation and then re-regulation has not been a happy one. Respective governments have made large changes that have done nothing to encourage investment. Why invest, when a new government could radically reshape the industries? In terms of electricity, the most recent reforms have introduced new concepts and procedures. Given the novelty and the sums of money involved, market participants were incentivised to test what these concepts mean. That was also the experience with the United States telecommunications industry. One cannot be surprised that the same is now happening in New Zealand. Once courts have definitively defined concepts and commented on the regulators procedures the amount of litigation should steadily decrease and certainty increase. What this New Zealand history of experimenting with different regulatory regimes shows is that network industry regulation best requires a fixed regulatory framework that does not change with various governments. This would likely improve certainty and consequently investment and innovation.