Reconciling Trade and Regulatory Goals: The Prospects and Limits of New Approaches to Transatlantic Governance Through Mutual Recognition and Safe Harbor Agreements

9 Colum. J. Eur. L. 29 (2002)

Gregory Shaffer. Associate Professor, University of Wisconsin Law School; Senior Fellow, UW Centre on World Affairs and the Global Economy (WAGE); Visiting Scholar, Columbia Law School.

A central goal in governing the interface of the economies of the United States and European Community (EC) is to reconcile the objectives of protective social regulation, on the one hand, and free competition facilitated through open trade policies, on the other. These policies can be both complementary and conflicted This Article examines how these issues have been addressed bilaterally in a number of economic sectors through mutual recognition agreements and a hybrid form, the safe harbor principles on data privacy protection. The Article assesses what spurred these agreements, which actors participated in their negotiation, what constrains their implementation (in terms of both political and market forces), and, ultimately, what are the prospects and limits for their adoption in other areas. The Article concludes that, overall, transatlantic institutional adaptation has been slow (and often creeping), but where it has occurred, it largely has been along EC, and not U.S., models. The United States has adopted international standards that mirror those of the EC, delegated testing and product assessment responsibilities to private bodies reflecting an EC “global” regulatory approach, and coordinated the oversight of these bodies under a new U.S. national program analogous to those operating in the EC for over a decade. The United States has done so because of the EC’s growing market clout and because the EC offers a model that actually works in combining regulatory diversity with high levels of economic exchange. Nonetheless, transatlantic coordination between public officials remains subject to serious constraints, so that the private sector likely will continue to take the lead in coordinating arrangements to meet disparate transatlantic regulatory requirements through private sub-contracting and other networking arrangements.