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This paper discusses the fundamental underpinnings and some implications of transaction cost regulation (TCR), a framework to analyze the interaction between governments and investors fundamentally, but not exclusively, in utility industries. TCR sees regulation as the governance structure of these interactions, and thus, as in standard transaction cost economics, it places emphasis in understanding the nature of the hazards inherent to these interactions. The emphasis on transactional hazards requires a microanalytical perspective, where performance assessment is undertaken within the realm of possible institutional alternative. In that sense, politics becomes fundamental to understanding regulation as the governance of public/private interactions. The paper discusses two fundamental hazards and their organizational implications: governmental and third party opportunism. Both interact to make regulatory processes and outcomes more rigid, formalistic, and prone to conflict than envisioned by relational contracting

Transaction cost regulation (TCR) consists of the study of the governance features of the interaction between governments and investors fundamentally,1 but not exclusively, in utilities sectors. As in standard transaction cost economics, the nature of contracting hazards is what determines the fundamental features of the governance of these interactions (e.g., Williamson, 1979). Regulation, and regulatory contracts, the forms that take the governance of such interactions, are then to be understood as coming to grips with the inherent hazards of these interactions. Emphasizing regulation as the governance structure of these interactions, and understanding the organizational impact of their inherent contractual hazards, differentiates TCR from other approaches to regulation. In particular, the emphasis on contractual hazards requires assessing real behavior, by real people in real environments within real institutions.2 While understanding real behavior also implies analyzing rent seeking and the role of distributional concerns, these manifest themselves in the interaction of sector hazards with the institutional environment within which they operate. In that sense, although politics is normally not necessary to understand private contracting, it becomes fundamental to understanding regulation as the governance of public/private interactions.3 As emphasized first by Coase (1964) and subsequently by Williamson (1979), the analysis of regulation must be done within the proper institutional comparison, and with a heavy micro-analytic dose. Thus, the supposed inefficiency of regulatory contracts, and of regulatory outcomes, must be assessed in reference to all relevant alternatives.4

I have presented here a comparative framework to understand both the rise and evolution of regulatory institutions over time and across jurisdictions. This framework, which I have called Transaction Cost Regulation, emphasizes that the fundamental determinants of regulatory institutions and regulatory performance are the hazards characterizing the particular government/investors interactions. These hazards vary across sectors (e.g., nature of assets, consumption patterns, political saliency), and their intensity varies with the institutional environment of the jurisdiction in question. The emphasis on transaction hazards, rather than distributional politics or optimal contracting, differentiates TCR from other approaches to regulation. Hence empirical implementation of TCR must focus on deep understandings of both basic institutional environments and transaction hazards. Much of the extant empirical work on institutions and investment, for example, falls within the governmental opportunism framework, as its emphasis on policy stability, corruption and transparency, reflects the underlying TCR concern about protecting, and motivating, investments in long term, and non-redeployable assets.65 On the other hand, there is much less empirical research on the impact of third party opportunism on regulatory structure and outcomes,66 making this a particularly fertile research area.