Equality Legislation and Reflexive Regulation: a Response to the Discrimination Law Review's Consultative Paper

The publication of the recent Consultation Document, proposinga new legislative framework for a Single Equality Bill for GreatBritain, provides the opportunity for consideration of the regulatoryapproaches that might be adopted in such legislation. The regulatoryapproaches adopted in previous anti-discrimination legislationare considered, followed by a discussion of a newer approachto regulation, which has been termed ‘reflexive regulation’.This newer form of regulation appears to form the preferredbasis for regulation in the Consultation Paper. The potentialproblems with this method of regulation are examined, in particularthe need to ensure that the pre-conditions for effective reflexiveregulation are identified and created. It is argued that theConsultation Paper has failed to address this issue, and thatseveral changes need to be made before the use of reflexiveregulation in the area of equality is likely to be successful.     

WTO Government Procurement Rules and the Local Dynamics of Procurement Policies: A Malaysian Case Study

This article examines efforts to create binding internationalrules regulating public procurement and considers, in particular,the failure to reach a WTO agreement on transparency in governmentprocurement. The particular focus of the discussion is the approachtaken by Malaysia to these international procurement rules andto the negotiation of an agreement on transparency. Rules governingpublic procurement directly implicate fundamental arrangementsof authority amongst and between different parts of government,its citizens and non-citizens. At the same time, the rules touchupon areas that are particularly sensitive for some developingcountries. Many governments use preferences in public procurementto accomplish important redistributive and developmental goals.Malaysia has long used significant preferences in public procurementto further sensitive developmental policies targeted at improvingthe economic strength of native Malays. Malaysia also has politicaland legal arrangements substantially at odds with fundamentalelements of proposed global public procurement rules. Malaysiahas, therefore, been forceful in resisting being bound by internationalpublic procurement rules, and has played an important role indefeating the proposed agreement on transparency. We suggestthat our case study has implications beyond procurement. Thedevelopment of international public procurement rules appearsto be guided by many of the same values that guide the broadereffort to create a global administrative law. This case study,therefore, has implications for the broader exploration of theseefforts to develop a global administrative law, in particularthe relationship between such efforts and the interests of developingcountries.