Regulation in the age of sustainability and algorithms

Abstract

The paper deals with the transformation of the regulatory model established since the 80s produced primarily by two crucial factors: the new guiding role of the state regarding economic activities and operators to steer market mechanisms towards predefined objectives; the obligation for operators to put in place conducts to pursue new public interests such as sustainability, beyond the established interests in business and corporate law, or fairness, beyond contestability as a traditional objective of competition law. This requires to define their behaviours ex ante by imposing detailed obligations at different levels. Furthermore, it highlights how the coexistence of different and ‘eccentric’ interests, alongside those traditionally protected by law, leads to redifine the traditional regulation, primarily seen as a response to market failures. In this perspective it analyses, on one hand, how sustainability emerges as a criterion to shape and adapt operators by means of imposing sustainability reporting obligations and corporate due diligence. On the other hand, it examines how imposing a set of obligations on specific kind of digital platforms defines their conducts ex ante with the aim at preventing unfair and anticompetitive practices. Lastly, it seeks to demonstrate that the regulatory model developed in the framework of the “regulatory state” has been progressively challenged by both the re-expansion of the state as a guide of economic activities and the different paradigm of interaction of market actors, regulators, regulated subjects and third parties or stakeholder who represent interests different from those of regulated firms but able to influence their behaviours. Briefly, the emerging model is characterized, on one side, by flexible and experimental regulation and, in the other, by partecipative regulation or co-regulation.