Getting familiar with the country legal system and practice

  School of Drafting Regulations

Regulations, often termed subsidiary legislation or bylaws, are rules promulgated by the government or by expert governmental bodies to control specific ways to apply the provisions of the law in a sector, such as the nuclear and radiation safety sector. The elaboration of regulations shall be subjected to the provisions of the national legal system which are specific to that end. The literature describes a reduced number of basic legal systems but in practice the structure of domestic judicial systems varies considerably from country to country. The figure below shows the traditional normative pyramid.

While this model can represent the hierarchical organization of the legal framework of many countries, still the legal system of each country is shaped by its unique history and so incorporates individual variations. The various acts that make up the normative pyramid can have different denominations from one country to another, even between in countries sharing the same mother language. Furthermore, different countries may have specific provisions and procedures dictating how to initiate, elaborate, process, and promulgate legal instruments at different scales. Participants in the School are strongly encouraged to familiarize themselves with the organization and specific features of their national legal system, as well as with the administrative procedures governing the elaboration of regulations. The structure and specific features of the national legislation and procedures used to promulgate regulations may have strong impact in the process to elaborate them. Typically, the elaboration of regulations is subject to compliance with the specific provisions regarding:

1. Geographical scope: depending on the subject matter, the provisions of the regulations can have effect at federal, state, regional or local scale and have to be made and promulgated by at the corresponding level of geographical scope.
2. Authority: regulations can only be made by the agency or the branch of the executive responsible for regulating the subject matter. Often, different aspects of the subject matter of a regulation are under the responsibility of more than one agency or branch of the executive. In those cases, specific proceedings shall be followed for elaborating, promulgating and implementing the regulation to ensure that all parties with authority in the subject matter.
3. Conformance to the law: regulations are subsidiary legislation and, as such, the provisions of the regulations must conform to the provisions of the law or to the provisions of other acts with a higher rank within the legislative hierarchy.
4. Hierarchy of regulations: regulations can be issued by different authorities of the executive branch with different hierarchical level. Regulations issued by an authority with lower hierarchical level must conform regulations issued by authorities with a higher hierarchical level.
5. Date of effect and transitory regimes: in most countries the date of effect of a regulation corresponds with the date of publication in the State’s official gazette, either at federal or al state/regional level. It is also frequent that some regulations, or portions of it, may have a delayed effect creating a transitory regime until takes full effect. Typically, this is intended to give enough time for the subjects of the regulations to take appropriate measures for compliance. Finally, regulations may also repeal or modify existing regulations or portion of them.
6. Supporting studies: in most cases, the promulgation of legal acts, including regulations, are subjected to the preparation of several reports justifying the benefit of the regulation and the absence of impact on certain areas of priority attention. Typically, mandatory reports are needed on topics including, but not limited to, legal consistency, cost-benefit analysis, environmental impact, gender considerations…
7. Consultation with advisory bodies and the public: it is quite frequent that the administrative procedure for promulgating legal acts, including regulations, are subject to undertake mandatory consultation with designated advisory bodies and the public before promulgation. Failure to undertake these consultations will render the regulation void and null.

Participants in the School are encouraged to familiarize themselves with the provisions in the legislation regulating the administrative procedure to address these subjects. They are also encouraged to seek advice from experienced officials with an authoritative voice regarding the domestic legal practice, either within their organizations or from other governmental organizations responsible for legal and administrative affairs.