Judicial Accountability and New Governance

To many legal analysts, accountability presupposes at least a minimum level of judicial oversight. This article addresses the appropriateness of this belief in the context of new governance. Taking the networked system for the enforcement of European competition and electronic communications law as a case study, it is shown that this mode of governance is at present characterized by a judicial accountability deficit as regards soft law instruments. Thereafter, this article directs a critical inquiry into the desirability and feasibility of introducing judicial oversight, including a cost-benefit analysis to determine the economic prospects of such a development. The analysis reveals that ensuring judicial oversight seems beset with legal difficulties and generates considerable economic cost. Finally, this article examines the possibility of relying on participation of affected interests to achieve the ends pursued by judicial review. Although it cannot be said that participation and judicial review are perfect substitutes or that the former is without problems of its own, in the new governance setting discussed here, participation has good prospects of realizing the more desirable, because efficient, outcome.