Dissonance in Global Financial Law

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This article explores whether the post-GFC global financial architecture is likely to provide efficient regulation capable of preventing a future crisis from occurring. The article starts with a brief overview of the emergence in the 1970s of global financial architecture. A thorough descriptive analysis of the post-crisis architecture follows, raising serious doubts regarding the current architecture’s ability to accomplish its goal. This analysis is performed in two stages, taking first an outsider’s perspective on the changes the architecture underwent after the crisis and moving then to the inside — the structure and contents of the architecture. Using macro-prudential methodological tools, the establishment of the Financial Stability Board is reviewed, along with three cutting edge regulations: the Basel III framework for banking, the IOSCO’s recommendation for money market funds, and the FSB’s recommendations regarding repurchase agreements. Pointing out the architecture’s perceived failure to provide stability due to severe regulatory arbitrage, the article then widens the lens to explore the implications of the above regulation. The article suggests that the current architecture encourages ‘financialisation’ and pushes the financial system and the real economy further apart. Consequently, the article raises normative concerns regarding the legal foundations of the global financial architecture, and its legitimacy.

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Revisiting the concept of transgovernmentalism, originally developed by Robert Keohane and Joseph Nye, can shed considerable light on the nature of interstate cooperation in contemporary global financial governance. Transgovernmentalism highlights how certain technocratic policy communities, composed of finance ministries, central banks, and regulators, dominate the global financial architecture. It also provides insights into the political and social basis of these actors' interactions and deliberations. Most importantly, renovating the concept of brings the participatory deficits in the current global financial architecture into sharp focus and points us in the direction of a workable reform agenda that would expand inclusion and participation. This article advocates basing future reform on efforts to achieve a closer realization of the principle of Unfortunately, transgovernmentalism is incompatible with deliberative equality, meaning that it is precisely the transgovernmental characteristics of the current global financial architecture that have to be challenged and overturned if we are to arrive at anything approximating deliberative equality. KEYWORDS: global financial architecture, transgovernmental politics, G7, G-20, deliberation. ********** Over thirty years ago, Robert Keohane and Joseph Nye published a seminal article in the journal World Politics that outlined the concept of transgovernmental relations. (1) In the intervening period, political scientists have rarely applied the concept in empirical research, fewer still sought to revise it for the contemporary era. In this article, I make the argument that a renovated version of the concept of can make a significant contribution to our understanding of the political dynamics of the current global financial architecture (GFA). (2) As a concept, not only reveals much about the nature of interstate cooperation in contemporary global financial governance, but also brings the participatory deficits in the current GFA into sharp focus and points in the direction of a modest, workable reform agenda that would increase inclusion and participation. The review of the GFA undertaken after the Asian financial crisis involved three distinct trends. There was both a partial privatization of financial governance evident in the creation of twelve codes and standards that were designed to enhance market scrutiny of national policies and practices (3) and a limited shift away from the club model of diplomacy evident in the creation of the G-20, which challenged the monopoly of leading developed countries. Most significantly, the architectural exercise consolidated and deepened the transgovemmental characteristics of the GFA. The transgovernmental nature of the GFA restricts participation in key deliberative spaces to a limited number of regulators and central state agencies (almost exclusively finance ministries, central banks, and specialist regulatory agencies), which dominate and control the deliberations that determine the terms and content of global financial governance, resulting in a narrow, technocratic, closed insider policy process that remains largely impenetrable to a wider range of concerned societal interests. While there is some evidence of a shift in global governance arrangements toward a more polycentric form of complex multilateralism in which various civil society groupings, nonstate actors, and developing countries participate alongside more traditional advanced capitalist state bureaucracies in the form of trisectoral networks, (4) I argue in this article that the principal defect of the global financial architecture is that it remains insufficiently pluralist and that this is a direct result of its overriding transgovernmental character. I begin with a brief discussion of the growing significance of the concept of deliberation for the study of global governance, including some consideration of the importance of the issues of participation and representation in the act of deliberation. …

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