scholarly journals Overcoming the hard law/soft law dichotomy in times of (financial) crises

2012 ◽  
Vol 1 (1) ◽  
pp. 8-14 ◽  
Author(s):  
Rolf Weber
Keyword(s):  
Financial Markets ◽  
Financial Crises ◽  
Dispute Settlement ◽  
Soft Law ◽  
Legal Doctrine ◽  
Organizational Issues ◽  
Hard Law ◽  
Multilateral Agreements ◽  
Recent Financial Crisis ◽  
The One

Traditional legal doctrine calls for hard law to regulate markets. Nevertheless, in financial markets, soft law has a long tradition, not at least due to the lack of multilateral agreements in this field. On the one hand, the recent financial crisis has shown that soft law does not suffice to avoid detrimental developments; on the other hand, a straight call for hard law would not be able to manage the recognized regulatory weaknesses. Therefore, emphasis should be put on the possibilities of combining hard law and soft law; specific areas allowing realizing such kind of “combination” are organizational issues, transparency requirements, and dispute settlement mechanisms.

Which Future for the Scholarly Concept of Soft International Law? Editors’ Introductory Remarks

2012 ◽  
Vol 25 (2) ◽  
pp. 309-312 ◽  
Author(s):  
JEAN D'ASPREMONT ◽  
TANJA AALBERTS
Keyword(s):  
International Law ◽  
Public Authority ◽  
Soft Law ◽  
Legal Scholarship ◽  
Binary Nature ◽  
Hard Law ◽  
Deja Vu ◽  
The One ◽  
Déjà Vu

Engaging with a mundane topic like the softness of international law may certainly look surprising to the readership of a journal known for its avowed and constant quest for an intellectually and conceptually rigorous ‘off-Broadway’ scholarship. Why would a journal that tries to establish itself as a leading alternative voice in the field replay a comedy so often staged in mainstream scholarship? It is with the full awareness of such an anticipated feeling of déjà vu that the editors of the Leiden Journal of International Law have decided to open the ensuing pages to an oft-debated topic with the ambition of evaluating the possibility of transcending the traditional pitched battle between opponents and advocates of soft law. It is well known that, after the juvenile success of the concept1 and its embrace by a great number of international scholars, soft law became the object of severe criticisms, resulting in a chasm in the international legal scholarship. Indeed, the debate about soft law came to literally split authors into two camps, firmly pitted against one another. On the one hand, there are the advocates of the notion for whom the binary nature of law is incapable of explaining the complexity of the international exercise of public authority in a pluralized world2 or who see soft law as an instrument of (programming of the) development of hard law.3 These apostles of the notion of soft law are opposed by those who see the notion as redundant because it turns into either hard law or not law at all,4 it is self-serving for the profession,5 it is dangerously deformalizing our instruments of law ascertainment,6 or it is weakening the general authority of law.7 The fierce character of that confrontation originates in soft law's being intrinsically intertwined with one's core and inner understanding of (international) law, thereby making these discrepancies seem irreconcilable.

scholarly journals Soft Law in Jus in Bello and Jus ad Bellum: What Lessons for Business and Human Rights?

AJIL Unbound ◽  
2020 ◽  
Vol 114 ◽  
pp. 174-178
Author(s):  
Alonso Gurmendi Dunkelberg
Keyword(s):  
Human Rights ◽  
The Other ◽  
Soft Law ◽  
Recent Experience ◽  
Jus In Bello ◽  
Jus Ad Bellum ◽  
Direct Participation ◽  
Business And Human Rights ◽  
Hard Law ◽  
The One

This contribution, rather than focusing on the debates within the Business and Human Rights (BHR) domain itself, offers a comparison between soft law regulation in the BHR context, on the one hand, and in the jus in bello (JIB) and jus ad bellum (JAB) contexts, on the other. Specifically, this contribution looks at the recent experience in JIB and JAB wherein states and other actors have tried to address the indeterminacy of treaty law provisions through soft law proposals that advance a disputed interpretation of hard law, producing legal uncertainty and scholarly debate. I use as examples the 2009 Interpretive Guidance on Direct Participation in Hostilities and the 2012 Bethlehem Principles as a way to extract lessons for the codifying momentum underway in BHR.

scholarly journals COVID-19 in Stock Markets: A Complexity Perspective

2020 ◽  
Author(s):  
Eder Johnson de Area Leão Pereira ◽  
Paulo Ferreira ◽  
Hernane Barros de Borges Pereira
Keyword(s):  
Financial Markets ◽  
Stock Markets ◽  
Financial Crises ◽  
Financial Risk ◽  
Transport Networks ◽  
Complex Character ◽  
Epidemic Disease ◽  
Fiscal Deficits ◽  
The Public ◽  
Recent Financial Crisis

This paper aims to analyze the effects of Covid-19 on financial markets from the perspective of Complexity. The Covid-19 pandemic has caused turmoil in financial markets and is already one of the most important financial crises in history, causing a fall in several stock markets as well as great volatility. Unlike past crises, which in most cases were caused either by problems of fiscal deficits or in the financial system, this crisis has its origin in an epidemic disease, which occurred in Wuhan, China, and quickly spread across the globe affecting transport networks, commerce and finance, and will affect the public debt of many countries. This is a systemic situation in which there is a need to consider several interconnected systems, financial instability and high financial risk, something that econophysics and some complexity theorists already do. Therefore, this paper intends to show, theoretically, the systemic and complex character of the recent financial crisis caused by Covid-19.

scholarly journals Legally Binding of the World Trade Organization Dispute Settlemet Body’s Decision

2017 ◽  
Vol 3 (2) ◽  
pp. 160 ◽  
Author(s):  
Triyana Yohanes ◽  
Adi Sulistiyono ◽  
M. Hawin
Keyword(s):  
Data Analysis ◽  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
Judicial System ◽  
Soft Law ◽  
Settlement System ◽  
Hard Law ◽  
The World ◽  
Dispute Settlement System

Dispute settlement system of the WTO DSB can be categorized as a judicial dispute settlement system. Decision (rulings and recommendations) in a dispute settlement made by the WTO DSB is binding and should be performed. In some cases, decisions made by the WTO DSB were not performed, and there is no sanction against the non-compliance with the decisions. The objective of this study is to analyze the legally binding character of the WTO DSB’s decision as a decision of a judicial organ. From the data analysis, it can be concluded that the WTO does not provide adequate sanctions against the non-compliance with the DSB’s decision. It leads to the interpretation of the DSB’s decision is international soft law norm which is not legally binding. Moreover, it can hamper the enforcement of the WTO Agreement and the achievement of the WTO’s goals. The WTO judicial system should be strengthened and improved by creating WTO independent court or tribunal, which has authority to make legally binding decision as international hard law.

scholarly journals Financial Markets are Not Efficient: Financial Literacy as an Effective Risk Management Tool

2021 ◽  
Vol 9 (1) ◽  
pp. 65-73
Author(s):  
Costas Siriopoulos
Keyword(s):  
Risk Management ◽  
Financial Markets ◽  
Systemic Risk ◽  
Financial Literacy ◽  
Financial Crises ◽  
Efficient Market Hypothesis ◽  
Management Tool ◽  
Market Risks ◽  
Expected Benefits ◽  
Recent Financial Crisis

This paper advances the view that the deep confidence of market regulators in the assumptions and premises of the Efficient Market Hypothesis (EMH) has led to the underestimation of market risks, thus inactivating the market education of existing and future investors. Hence, they have not responded to financial illiteracy, which exacerbated the recent financial crisis. Investor education may be considered as a systemic risk management tool for future financial crises and, especially, financial literacy can drive a wedge between the regulation and the prevention of severe financial crises based on expected benefits versus losses. This also will help to regain investors’ trust in the market after the crisis and instill investors with more confidence. This approach has not yet received the attention it deserves.

Mega-Regional Trade Agreements: CETA, TTIP, and TiSA

2017 ◽  
Keyword(s):  
International Economic ◽  
Financial Services ◽  
Dispute Settlement ◽  
Economic Relations ◽  
Economic Law ◽  
Legal Perspective ◽  
International Economic Law ◽  
Regional Agreements ◽  
The One ◽  
International Experts

The contributions in this volume examine CETA, TTIP, and TiSA as prime examples of ‘mega-regional’ agreements that are central to a new orientation in international economic law in general and EU external economic relations in particular. While concentrating on CETA, TTIP, and TiSA as the main EU instruments in the worldwide turn to regional and mega-regional agreements, the book places these initiatives in the broader context of other mega-regional projects such as TPP. In the first two chapters, this book examines main motivations for negotiating mega-regional agreements and changing conceptions of international economic law. In nine further contributions, international experts examine sectoral issues such as the trade, investment, and dispute settlement disciplines envisaged in these ‘mega-regional’ agreements. Moreover, the progress made in intellectual property protection, the problems associated with data protection, disciplines on financial services, human rights, labour and environmental standards, issues of transparency and legitimacy, and the relationship between CETA, TTIP, and TiSA on the one hand and EU law on the other are analysed. Finally, four short contributions discuss fundamental questions surrounding these mega-regional agreements from an economic, a political science, and a legal perspective. The last chapter of this volume summarizes principal conclusions presented in the chapters of the book and highlights themes that recur in them.

Disruptive Soft Law and Post-Crisis US Reform

2018 ◽  
Author(s):  
Abraham L. Newman ◽  
Elliot Posner
Keyword(s):  
Financial Markets ◽  
Great Recession ◽  
Regulatory Reform ◽  
The United States ◽  
Soft Law ◽  
Long Term Effects ◽  
The Great Recession ◽  
The Us ◽  
International Interaction

Chapter 6 examines the long-term effects of international soft law on policy in the United States since 2008. The extent and type of post-crisis US cooperation with foreign jurisdictions have varied considerably with far-reaching ramifications for international financial markets. Focusing on the international interaction of reforms in banking and derivatives, the chapter uses the book’s approach to understand US regulation in the wake of the Great Recession. The authors attribute seemingly random variation in the US relationship to foreign regulation and markets to differences in pre-crisis international soft law. Here, the existence (or absence) of robust soft law and standard-creating institutions determines the resources available to policy entrepreneurs as well as their orientation and attitudes toward international cooperation. Soft law plays a central role in the evolution of US regulatory reform and its interface with the rest of the world.

scholarly journals Killing me Softly? Scrutinising the Role of Soft Law in Greece’s Response to COVID-19

2021 ◽  
Vol 12 (1) ◽  
pp. 59-76
Author(s):  
Evangelia (Lilian) TSOURDI ◽  
Niovi VAVOULA
Keyword(s):  
Asylum Seekers ◽  
Personal Data ◽  
Fundamental Rights ◽  
Soft Law ◽  
Freedom Of Movement ◽  
Hard Law ◽  
Primary Basis ◽  
Full Swing ◽  
Second Wave

Greece emerged as the EU’s poster child in the fight against COVID-19 during the first few months of the pandemic. In this contribution, we assess Greece’s use of soft regulation in its regulatory response to COVID-19. Using “acts of legislative content”, which can be broadly conceptualised as softly adopted hard law, the Greek government largely achieved flexibility and simplified adoption procedures without having to resort to soft law per se. The role of soft law was limited - it complemented hard law rather than constituting the primary basis of COVID-19 restrictions - but not completely negligible. Soft law instruments regulated the processing of personal data, and was also pivotal in clarifying the criminal sanctioning of COVID-related rule violations. Greece’s success in handling the first wave of the pandemic, while effective, was arguably unfair to asylum seekers who saw their right to apply for asylum curtailed, and their right to freedom of movement restricted when limitations on the rest of the population were lifted. With a second wave of infections currently in full swing, it is imperative to keep scrutinising regulatory responses to ensure that they place the health and dignity of every individual (whoever they might be) at their core and fully respect their fundamental rights.

Measuring the quality of the “comply or explain” approach

2015 ◽  
Vol 30 (4/5) ◽  
pp. 373-412 ◽  
Author(s):  
Michail Nerantzidis
Keyword(s):  
Content Analysis ◽  
Web Sites ◽  
Stock Exchange ◽  
The Body ◽  
Content Type ◽  
Athens Stock Exchange ◽  
Recent Financial Crisis ◽  
The One ◽  
Comply Or Explain

Purpose – This paper provides evidence regarding the efficacy of the “comply or explain” approach in Greece and has three objectives: to improve our knowledge of the concept of this accountability mechanism, to elevate auditors’ potential role in the control of corporate governance (CG) statements and to contribute to the discussion about the reform of this principle; a prolonged dialogue that has been started by European Commission in the light of the recent financial crisis. Design/methodology/approach – The approach taken is a content analysis of CG statements and Web sites of a non-probability sample of 144 Greek listed companies on the Athens Stock Exchange for the year 2011. Particularly, 52 variables were evaluated from an audit compliance perspective using a coding scheme. From this procedure, the level of compliance with Hellenic Federation of Enterprises (SEV) code, as well as the content of the explanations provided for non-compliance, were rated. Findings – The results show that although the degree of compliance is low (the average governance rating is 35.27 per cent), the evaluation of explanations of non-compliance is even lower (from the 64.73 per cent of the non-compliance, the 40.95 per cent provides no explanation at all). Research limitations/implications – The research limitations are associated with the content analysis methodology, as well as the reliability of CG statements. Practical implications – This study indicates that companies on the one hand tend to avoid the compliance with these recommendation practices, raising questions regarding the effectiveness of the SEV code; while on the other, they are not in line with the spirit of the CG code, as they do not provide adequate explanations. These results assist practitioners and/or policy-makers in perceiving the efficacy of the “comply or explain” approach. Originality/value – While there is a great body of research that has looked into the compliance with best practices, this study is different because it is the first one that rates not only the degree of the compliance with the code’s practices but also the content of the explanations provided for non-compliance. This is particularly interesting because it adds to the body of research by providing a new approach in measuring the quality of the “comply or explain” principle in-depth.

Nuclear Powers' Disarmament Obligation under the Treaty on the Non-Proliferation of Nuclear Weapons and the Comprehensive Nuclear Test Ban Treaty: Interactions between Soft Law and Hard Law

2013 ◽  
Vol 27 (1) ◽  
pp. 169-188 ◽  
Author(s):  
ALESSANDRA PIETROBON
Keyword(s):  
Nuclear Weapons ◽  
Nuclear Test ◽  
Good Faith ◽  
Soft Law ◽  
Legal Obligation ◽  
Hard Law ◽  
The Us ◽  
Test Ban ◽  
Nuclear Test Ban ◽  
Test Ban Treaty

AbstractThe Comprehensive Nuclear Test Ban Treaty (CTBT) will not be effective until all the 44 states listed in its Annex 2 ratify it. A special link has been established between the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the CTBT. The disarmament obligation set by Article VI of the NPT, which has not yet been complied with, remains highly controversial. The relevant subsequent practice of the states parties to the NPT shows that the ratification of the CTBT is to be considered the first of the practical steps towards compliance with Article VI. However, as the practical steps do not set any legally binding norms, there is no legal obligation to ratify the CTBT, not even for the 44 states listed in Annex 2 whose ratification is essential. The paper deals with the position of nuclear powers party to the NPT that have not yet ratified the CTBT (most prominently the US and China) and demonstrates that these states should at least provide detailed motivation for their conduct. Otherwise, other states parties to the NPT could consider them as not complying in good faith with Article VI of the NPT and invoke the inadimplenti non est ademplendum rule to justify breaches of their own obligations under the same treaty.

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