Courts, Regulators, and the Scrutiny of Economic Evidence in Latin America

We live in the era of “regulatory capitalism” where one witnesses “the penetration of regulation as an institutional design, as a practice and as a discourse to all spheres” (Levi-Faur 2005; Braithwaite 2008). This is also true in the Latin American context, where decades of reform in the infrastructure sectors have transformed the landscape of regulation. Economic regulators overseeing infrastructure services play a vital role in supporting economic activities and growth in energy, e-communications, water, and transportation. Operating in evolving technological, institutional, and financing environments, regulators need to ensure that consumers have access to safe and quality services, to guarantee that network operators and service providers receive a reasonable rate of return on their investment and to uphold competitive outcomes. In doing so they increasingly rely on economic evidence and analysis.

Such evidence derives mostly from industrial organisation economics and is employed to give effect to a number of rules concerning, amongst other matters, access to networks and price regulation. However, courts are usually staffed with generalist judges who have not been trained in economics but in law, leading thus to a situation of an ‘epistemic asymmetry’ between the latter and the regulatory agencies. Yet courts have a crucial role to play in making sure that regulatory agencies promote the interests of consumers and effective competition in essential services. Though this unequal epistemic position has been the focus of much scholarly and policy debate in mature jurisdictions (EU, US, UK) less attention has been paid in the context of Latin America.

This exploratory workshop aims at addressing this gap by exploring the interaction of both courts and regulators with economic evidence in 4 key jurisdictions in Latin America: Brazil, Chile, Colombia, and Argentina. In doing so it will undertake an institutional analysis of the reception of economic evidence by both regulators and courts to generate fresh region-specific insights that can inform the design and evolution of regulatory institutions in Latin America.

This is an exploratory workshop co-organised by UCL Laws and FGV Sao Paulo Law School Brazil and funded by a UCL Global Engagement Fund.