Fonts d’exposició professional a camps electromagnètics o CEM

The above approaches represent the enforcement spectrum from self-regulation on the one side, to punitive measures and increased state intervention on the other. Many analysts have suggested that regulation requires a more dynamic approach, incorporating aspects of both. For example, new regulatory models include ‘responsive regulation’ (Ayres and Braithwaite, 1992), ‘smart regulation’ (Gunningham and Grabosky, 1998), ‘problem-solving regulation’ (Sparrow, 2000), ‘meta-regulation’ (Parker, 2002) ‘market based regulation’ (Gill, 2000; Edwards and Gill, 2002), the ‘governance triangle’ (Abbott and Snidal, 2006) and ‘really responsive risk-based regulation’ (Black and Baldwin, 2010) while there has been recent focus on regulators as ‘sociological citizens’ (Silbey et al., 2009; Silbey, 2011). Multiple common themes can be seen throughout these approaches. For example, the need for a varied set of sanctions and strategies including both enforcement and non- enforcement mechanisms, the necessity of ‘negotiated relationships’ between the regulators and regulatees, the reflexivity, responsiveness and agency of the regulators, and the involvement of non-state actors and agencies. As Haines notes:

‘This literature places the regulator within a broad governance framework where the enforcement of rules within narrow prescriptive frameworks is eschewed in preference for policy mixes, combining instruments, third-party actors, and enforcement regimes that collectively can both “push” and “pull” (Gunningham and Grabosky, 1998: 259) regulates into a reflexive appreciation of the goals the regulator wants to achieve and lead them to act in a diligent manner to bring the goals to fruition’ (Haines, 2011: 118-119)

Such pragmatic, symbiotic regulatory approaches have been most significantly influenced by the work of Ayres and Braithwaite (1992), although their empirical findings are largely based on the US and Australia and may therefore not apply directly to the UK or Germany. Their approach highlights a convergence between rational choice analysis incorporating economic rationality as well as normative accounts incorporating sociological analyses of actors’ desires to comply with norms and to ‘do the right thing’. They advocate a responsive regulatory approach that depends on context, regulatory culture, and history. They state:

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‘Responsive regulation is distinguished (from other strategies of market governance) both in what triggers a regulatory response and what the regulatory response will be. We suggest that regulation be responsive to industry structure in that different structures will be conducive to different degrees and forms of regulation. Government should also be attuned to the differing motivations of regulated actors. Efficacious regulation should speak to the diverse objectives of regulated firms, industry associations, and individuals within them. Regulations themselves can affect structure (e.g., the number of firms in the industry) and can affect motivations of the regulated’ (Ayres and Braithwaite, 1992: 4)

Thus, it is clear that within this framework the relationship between regulators and regulatees is significant in shaping the most appropriate regulatory responses, in other words, negotiation between these groups is vital. For Ayres and Braithwaite, regulation should respond to industry conduct, so the extent to which industries (and the organisations within them) are effectively making private regulation work should shape regulatory responses. Consequently, in the authors’ view, ‘responsiveness implies not only a new view of what triggers regulatory intervention, but leads us to innovative notions of what the response should be’ (Ayres and Braithwaite, 1992: 4). However, responsive regulation is not a clearly defined program or a set of prescriptions concerning the best way to regulate but considers responsiveness as ‘an attitude that enables the blossoming of a wide variety of regulatory approaches’ (Ayres and Braithwaite, 1992: 5). Central to the idea of responsiveness is the suggestion that escalating forms of government intervention will reinforce and help constitute less intrusive and delegated forms of market regulation (Ayres and Braithwaite, 1992: 4).

They demonstrate this point through the concept of two enforcement pyramids. These pyramids relate to the notion that regulatory objectives are more likely achieved when agencies possess and display both a hierarchy of sanctions (proactive, preventative measures are not explicitly included in the pyramid) and hierarchy of regulatory strategies of varying degrees of interventionism. These interventions incorporate ever-increasing intrusiveness although this correlates with ever-decreasing frequency of use. In line with the idea of responsiveness, it is suggested regulators will do best by indicating a willingness to escalate intervention up the pyramids or to deregulate down the pyramids in response to the performance of the industry in achieving regulatory objectives. Additionally, they argue that the tougher the enforcement level to which the agency can escalate, the more effectively they will be able to ensure compliance and will therefore less likely have to resort

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to tough enforcement. They do assume, however, that a hierarchical sanctioning mechanism escalating from persuasion to license revocation or a hierarchical regulatory strategy escalating from self-regulation to a high level of state intervention can be applied to all. While there is flexibility in terms of the content of these pyramids, the structure and form of the pyramids themselves is questionable. Likewise, economic rationality also assumes deterrents (general and specific) are effective. As Nelken (2007a: 757-58) notes, evidence from interviews suggests that managers say they do not think in deterrence terms because only unethical managers are seen to respond to deterrence. Nonetheless, an agency in this sense is termed a ‘benign big gun’ (Ayres and Braithwaite, 1992: 19-53).

The enforcement pyramids enable regulatory approaches to transcend polarised notions of tit-for-tat (TFT) regulation whereby regulators switch between cooperation and deterrence. It is further argued for a minimal sufficiency principle in the use of varying levels of sanctions whereby the more sanctions can be kept in the background, the more effective the regulation will be. The pyramid of enforcement is aimed at the regulation of a single firm whereas the pyramid of enforcement strategies is aimed at the entire industry. They conclude that ‘the possibility has been advanced that compliance is responsive to the existence of a TFT strategy, the existence of an enforcement pyramid appropriate to the particular regulatory domain, and the potency of the upper limits of sanctioning within that pyramid’ (Ayres and Braithwaite, 1992: 52). Within this framework, the ‘benign big gun’ agency is able to speak softly while carrying very big sticks (Ayres and Braithwaite, 1992: 40). It is important, however, for such theoretical approaches of regulation to ‘move away from the notion of an optimum level of stringency in the law, an optimum level of enforcement, and an optimum static strategy, and instead converge toward an optimum way of playing a dynamic enforcement game’ (Braithwaite, 2000: 105). However, the extent to which this framework can be applied to contemporary, dynamic, transnational criminality as in the case of corporate bribery in international business transactions is debateable given issues of jurisdiction for regulators and therefore the need for MLA and multi-agency cooperation. The framework does not appear to offer sufficient flexibility to those undesired activities that transcend markets/industries, sovereignties, and responsible agencies and does not distinguish between the regulation of legal and illegal markets within industry.

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Subsequent theories of regulation (e.g. ‘smart regulation’, ‘really responsive risk-based regulation, amongst others) have echoed elements of ‘responsive regulation’. For Gunningham and Grabosky (1998), ‘smart regulation’ requires regulators to be flexible as well as able and willing to shape their responses to specific actors and situations through the assessment of available interventions and actors that can be used effectively, efficiently, and fairly. For Sparrow (2000: viii), regulatory craftsmanship requires an ability to ‘pick important problems and fix them’ and for actors to develop distinctive modes and patterns of thought and action that enable effective interventions (Sparrow, 2008). Parker (2002) acknowledges the need for ‘the regulated’ to acknowledge their responsibility and to self- regulate their own behaviour, with the regulation of such self-regulation being considered ‘meta-regulation’. Gill (2000) and Edwards and Gill (2002) draw upon the key ‘negotiated relationships’ and interactions between traders and the regulated in the context of licit and illicit markets, arguing for the use of a variety of enforcement and non-enforcement techniques. Black and Baldwin (2010) develop responsiveness in their ‘really responsive risk- based regulation’, whereby regulators have to regulate responsively in relation to five elements: regulated firms’ behaviour, attitude and culture; regulation’s institutional environments; interactions of regulatory controls; regulatory performance; and, change. This framework argues that regulatory challenges differ across the tasks of detection, response development, enforcement, assessment, and modification. Silbey et al. (2009: 203) focus on regulators as ‘sociological citizens’ who ‘*s+ee their work and themselves as links in a complex web of interactions and processes rather than as a cabin of limited interests and demarcated responsibilities’, viewing ‘their organizations, or states, as a dynamic entity in which their own role is reconceived as insignificant by itself yet essential to the whole’.

While these theories of regulation provide significant insights, one concern is the extent to which they can be applied to less tangible offences. For example, the work of Ayres and Braithwaite (1992) largely relates to Braithwaite’s (1984) empirical analysis of misdemeanours in the pharmaceutical industry, while Gunningham and Grabosky’s (1998) ‘smart regulation’ is focused on findings related to the undesirable consequences of industrial life for the natural environment. Likewise, Pearce and Tombs (1990; (see also Slapper and Tombs, 1999; Tombs and Whyte, 2007)) have focused on health and safety

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offences. These therefore incorporate more tangible offences that can be more easily detected and measured. In comparison, bribes paid to win business contracts may have no noticeable or directly tangible consequences. A bribe given by company A, via intermediary B, to client C may be intended to maintain the status quo, for example, and therefore leaves no public trail. The extent to which the less tangible nature of many cases of corporate bribery can be regulated in a similar manner to the tangible empirical focus of other regulatory approaches is explored in chapter 9.2.