Three main tasks can be identified for comparative law. The first is to investigate differences between legal systems and, in particular, to distinguish between “real” differences, where the outcomes of the application of principles diverge between legal systems, and “superficial” differences, where similar outcomes are masked by the conceptual structures of the relevant systems. The second is to trace developments in the relationships between legal systems and thus to explore tendencies of convergence or divergence (in terms of “real” differences), noting that in some areas convergence may be required under international legal instruments. The third task is to explain and to evaluate such developments: why do systems converge or diverge? Is convergence desirable or undesirable?
In this paper we provide a strategic explanation for the spontaneous convergence of legal rules that nevertheless, in many instances, falls short of unification across jurisdictions. We identify a free-riding problem and discuss its implications for legal integration. We argue that countries hesitate to adapt their laws to those of another jurisdiction because they hope to free ride on efforts toward convergence. Unification (by transplant) and harmonization (by convention) of legal rules emerge as obvious corrective interventions to a coordination failure, thus solving the free-riding problem. However, unification and harmonization could also be serious policy mistakes either because convergence is absent owing to very high costs of importing and adjustment or owing to agency costs.
This article presents a legal perspective on regulatory institutions, procedures and processes. Analysis of legal instruments examines justi¢cations for regulatory interventions, and considers the inadequacies of private law remedies to instances of market failure (such as monopolies, inadequate or asymmetric information, externalities and co-ordination problems). A distinction is drawn between social and economic regulation: the former deals with such matters as health and safety, and environmental and consumer protection; and the latter is needed where there is insu⁄cient competition. Instruments of social regulation include prior approval, mandatory standards and information disclosure. A range of instruments of economic regulation is also assessed, including competition law, public ownership, price and quality regulation, and competitive public franchising. Analysis of regulatory processes focuses on regulatory rule-making, delegated regulation and self-regulation. Particular weight is given to di¡erent forms of accountability^¢nancial, procedural and substantive^which draws attention to the signi¢cance of the public interest dimension of regulatory systems.
The methods of constraining corruption typically adopted in Western industrialized societies, increasing the transparency and accountability of decision‐making, and intensifying the enforcement of criminal justice prohibitions, have not always proved to be effective in developing countries. This is not surprising, given that in many of them the resources available for law enforcement are relatively modest, and corruption is deeply embedded culturally. In this paper, I suggest a strategy of reducing the opportunities for corruption, rather than attempting to suppress it altogether. I focus on regulatory institutions and procedures, identifying key aspects to these arrangements, which, if appropriately designed, can achieve this goal. Some of the design strategies that I advocate are inconsistent with the models of regulatory arrangements that Western institutions have been urging developing countries to adopt.
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