Capturing Commitment in Informal, Soft Law Instruments: A Case Study on the Basel Committee

Abstract

ABSTRACT The present article investigates the legal nature of the Basel Committee on Banking Supervision and seeks to identify the legal effects of the acts produced by the committee under public international law. It reassesses the most influential contemporary theories that have endeavoured to describe and capture the increasing trend towards ‘de-formalization’ of international law, of which the Basel Committee, with its peculiar composition and standard-setting activities, is generally considered as one of the most significant examples. The articles comes to the conclusion that the Basel Committee’s normative outputs cannot be qualified as legal acts or legal facts under international law as they are best described as the results of flexible and informal standard-setting activities developed by domestic regulators at the international level, with a view to inducing compliance by national legislators and stakeholders. The lack of a formal ‘pedigree’ under international law has not undermined their effectiveness; on the contrary, it can be considered a peculiar feature of a successful model of transnational cooperation where soft law standards have been translated into domestic legislation.