Ayelet Berman: Taking foreign interests into account: Rulemaking in the US and EU

Dr. Ayelet Berman, a Senior Research Fellow at the National University of Singapore, has published an Article, “Taking foreign interests into account: Rulemaking in the US and EU” in 15 (1) Int J Const Law 235 (2017).

The Article shows that rulemaking processes in the US and in the EU are increasingly open to foreigners. In both jurisdictions regulators are obliged under domestic law to highlight certain proposed rules that have international impacts, and foreigners may in turn participate in notice and comment procedures. In addition, certain regulatory impact assessments take impacts on foreigners into account. Berman argues that the main rationale behind these practices is their enlightened self-interest in improving market-openness. But with respect to the EU, she observes a sense of obligation to take others’ interests into account:

“[T]the EU is concerned that its policies may adversely impact developing countries. The EU considers itself as having a responsibility in poverty eradication and sustainable development in developing countries, and it is this sense of responsibility that drives this approach. While in the long term its insistence on “policy coherence” should lead to a more stable, peaceful world, from which the EU itself would benefit too, the justification for acting responsibly towards developing countries is based—as the EU itself stresses—on its “moral responsibility” to eradicate poverty and building ‘a more stable, peaceful, prosperous and equitable world, reflecting the interdependency of richer and poorer countries.’ Thus, by considering the interests of developing countries, the EU is acting out of, as Benvenisti would suggest, their responsibility as ‘trustees of humanity.’”