Deregulatory takings and breach of the regulatory contract: a comment

Article Abstract:

The proposal that networked industries, such as electricity, gas and telecommunications, be entitled to compensation under a deregulatory taking theory is flawed because compensation would be based on capital costs that are sunk but are also inefficient. Allowing recovery of inefficient investments made would serve to undermine the efficiency gains that are anticipated with deregulation. Mechanisms that distribute compensation for the deregulatory takings across the industry would undermine the incentives that would otherwise encourage new entry and innovation by more efficient market participants.

Public utilities

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Deregulatory takings and breach of the regulatory contract: some precautions

Article Abstract:

The argument that deregulation in utilities and telecommunications industries should be considered a government taking warranting compensation is undermined by overreliance on idealized models. Compensation may indeed be warranted for sunk capital investments. Monopolistic excesses and the failure of regulators to properly assess investments undermine confidence that sunk costs should be compensated. Assumptions that all parties have perfect information and no parties engage in strategic behavior are inconsistent with the realities of most regulated industries.

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The global Fifth Amendment? NAFTA's investment protections and the misguided quest for an international "regulatory takings" doctrine

Article Abstract:

Litigation under the North American Free Trade Agreement has threatened to establish an international regulatory takings doctrine like that under the Fifth Amendment to the US Constitution. But the arbitral tribunals in these cases have expanded elements such as the definition of property, making for a broader definition of regulatory taking than US courts have established. Such an exanded takings doctrine is not desirable nor necessary.

Legal issues & crime, Government regulation (cont), Government regulation, Legal/Government Regulation, Interpretation and construction, International trade, Compensation (Law), International trade regulation, Property law

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