INTRODUCTION Contributed by: Charles Brasted and Julia Marlow, Hogan Lovells International LLP
contexts and the interplay between public and private law. • In consequence, governments have adapted their approach to defending claims (including accepting greater levels of litigation risk when making policy) and sought to constrain legal challenge mechanisms. These shifts are also affecting the practice of administrative and public law, such as the grow - ing use of disclosure and expert evidence and more commercial approaches to advocacy. Complex and changing policy environment The ways in which governments interact with their citizens and businesses are constantly evolving, as the role of government changes to meet the challenges of a rapidly changing world. • Shifting geo-political landscapes – States are increasingly implementing measures to guard against foreign influence in their economies and politics, including controls on foreign direct investment, particularly in critical national infrastructure, and sanctions. • Pursuit of growth – The scale of the regulatory burden on businesses continues to be viewed by States as a policy lever to strike the appropriate balance between innovation and growth, on the one hand, and public interest protection (eg, of consumers and the envi - ronment) on the other. In many jurisdictions, governments are seeking to consolidate and streamline regulations, and to put additional pressure on regulators to prioritise growth. • Digital and technological transformation – The rise of innovative industries has prompted governments – and supranational organisa - tions, such as the EU Commission – to design new forms of regulation to tackle the twin policy challenges of protecting citizens and facilitating growth posed by digitalisation,
online platforms, artificial intelligence (AI), and other emerging technologies. Those chal - lenges are inherently international but there is little harmonisation of approach or even regu - latory philosophy. As governments grapple with their approach to these challenges and the balance between consistency and com - petitive differentiations, global digital busi - nesses need to adopt internationally coherent approaches to engaging with governments and regulators. • Environmental and societal imperatives – Administrative and public law is increas - ingly being leveraged in the climate change debate, as governments seek to adapt domestic policy to their political views, and/or international treaty obligations, and activists on both sides of the debate respond to that through the use of novel legal challenges. For example, in a landmark judgment in 2024, the European Court of Human Rights found Swit - zerland in breach of its positive obligations under Article 8 of the European Convention on Human Rights (concerning the right to pri - vate and family life) to tackle climate change due to failures to establish a relevant domes- tic regulatory regime and to meet emission reduction targets. • Limited resources and legislative and policy- making capacity – All of the factors above are driving governments to place increasing reliance on regulators and the private sector for policy delivery. Changes to administrative and public law Against this backdrop, the role of administrative and public law in holding government and regu - lators to account is an increasingly important part of many businesses’ commercial strategy. Legal arguments based on traditional adminis - trative and public law and human rights princi - ples are being adapted and deployed in increas -
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