Psychosocial risks: policies in Europe

Analytical review of the Australian policy context for work-related psychological health and psychosocial risks

This article examines the development of “soft law”, the comply or explain corporate governance regulation of the listed UK plc, over the decade from 2003, to revisions in October 2014. We will also consider the “hard law” of governance regulation, as it has developed through the codification of directors’ duties under the Companies Act 2006 (CA 2006). Our particular focus is on provisions in both soft and hard law that have sought to promote and enhance board effectiveness, and in particular, how that can be achieved through the work and function of the non-executive director. The article seeks to create a behavioural perspective which we hope complements the jurisprudential analysis of these provisions. The article highlights the behavioural and relational emphasis within these legislative and regulatory provisions, as a significant feature of the ongoing corporate governance reform agenda.

The world today is changing rapidly, and technological developments make it highly unpredictable. In this situation, legal order and binding rules are essential for consistency and stability. Hence, hard law norms are still of vital importance, particularly in the areas dominated by the development of technology, such as Space Law. Following this line of thought, the European Space Policy Institute stepped out of its usual role and decided to dedicate a Report that not only deals with other area than policy (in this case international and Space Law) but also delivers insights and recommendations relevant not only for Europeans but also for global community in general. In this Report, legal mechanisms for the creation of hard law norms in the space domain, and beyond, are analysed. The objective was to examine the various ways of creating normative instruments, which also come from other areas and use other methods, that have been neglected by the space community so far. The Report is structured in three major parts: Cape Town Convention approach; existing space treaties and other hard and soft law norms; other areas and their secondary law creation mechanisms. In conclusion, it is underlined that in areas that are dominated by technical development and that have high national security implications, the Space Law community should not stop at soft law. It is not enough, and it does not provide for sufficient protection of the space environment. Hence, where issues are neither technically dynamic nor highly security-relevant, hard law creation should be the ultimate aim. But even when rapid technical development is involved and security sensitivity is present, it should not be assumed that soft law is the only tool available. Hard law instruments can be remarkably flexible and can take care of security concerns when designed correctly, as the examples in the third part of the Report show. Setting this background, the aim of this paper will be to depict the results of the ESPI Report, relevance that it has and what possible future steps should be.

In the wake of increasing corporate disasters, there has been an urgent need to address business impacts on human rights. Yet business responsibilities for human rights are mainly voluntary and likely best termed ‘soft law’. Recently, however, several states have begun negotiations for an international binding treaty in this area suggesting a need to turn to ‘hard law’ to increase the efficacy of business and human rights (BHR) initiatives. This article argues that because soft and hard law concepts are not dichotomous, BHR governance need not become ‘hard law’ to be effective. Rather ‘hardened’ soft law instruments can be equally effective.

This article investigates the stringency of the hard law continuum as well as the flexibility of the soft law in the development of CSR. The effectiveness of both the soft law and hard law in making CSR a mandatory part of global business has also been described in this study. Soft law being flexible has helped in many ways to make the CSR approach accessible to the consumer, shareholder and the stakeholders as well. However, the softness that this ideology of the soft law provides in some cases has posed itself to be a challenge in the path of developing CSR. Similarly, hard law and its strictness and biding factor is an effective way to make CSR a prominent factor to enhance various factors in business. The occupation of health and safety, sustaining natural resources that are being used in a business, effective corporate governance, upholding social responsibility and saving climate are part of the CSR activities. This study demonstrates various characteristics of the soft and hard law that has changed CSR and helped portray itself in the global business forum. It has also analysed the multiple issues both the soft and hard law possesses and the way mitigating which the CSR has developed its effectiveness and performance gradually.

On both transnational and national levels, a variety of hard and soft law, legal and law-like initiatives are applied and proposed to address the impact of subcontracting on labour rights. The basic idea of all subcontracting-related regulatory experimentations is to make actors other than the direct employer co-responsible or liable for ensuring some (or all) labour and social rights of workers employed in the supply chain. This ‘co-responsibility’ can be advanced by ways of both soft law and hard law. The contribution offers an overview of these emerging mechanisms within the global legal space and tries to highlight their implications, interconnectedness and ‘spill over’ effects in terms of labour law.

The interplay between soft law and hard law and its implications for global marine fisheries governance: A case study of IUU fishing

Directive 2014/95/EU of the European Parliament and of the Council (22 October 2014) amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups has not only attracted global attention on the significance of disclosure of CSR performance, but also raised an even broader corporate governance question: Is it now time to move on from a soft law approach to a hard law approach? In my opinion, both soft law and hard law are equally important. Neither type of law can guarantee the effectiveness of good corporate governance. Soft law will not be jettisoned even after some soft law rules have been transformed into hard law. That said, both soft law and hard law require comprehensive renovation, instead of minor patch-ups. Despite the particularities of corporate governance norms created by unique legal traditions and cultures in individual jurisdictions, globalisation requires further convergence, coordination or harmonisation of corporate governance norms in terms of both soft law and hard law.

The internet has become a necessary tool for the development of people’s lives. It is impossible to imagine a life without the internet since the vast majority of human beings use it in almost all of their daily activities. However, it is controlled by many government authorities around the world. This achievement of mankind, the world wide web, must not be arbitrarily deprived by the ruling authorities of any state. The question that this paper addresses is how the right of access to information through the internet is protected and restricted through international human rights instruments. Particularly, it identifies that “soft law” human rights instruments provide an access to information through the internet as an individual’s claim-right, whereas “hard law” provides it as a freedom. The method of the comparison of “hard law” and “soft law” instruments make it possible to understand that the human right is still better protected by a “soft” tool. The first part of this paper will compare the degree of protection provided by “hard law” and “soft law” instruments on the right of access to information through the internet. The second part of this paper will identify to what extent the “hard law” and “soft law” instruments justify the restrictions applied on the right of access to information through the internet.

The risks posed to global financial stability by the crisis that followed after the collapse of the BW showed that the international financial system had entered a new stage characterised by high levels of inter-relation and inter-dependence between the national financial systems. Liberalisation and deregulation of international financial markets besides the advantages of improved resource allocation and lower costs of capital delivered also high market volatility that in turn fuels contagion, increasing in this way the potential for systemic crisis that generate economic inefficiencies (Eatwell and Taylor 2000). These issues bring to our attention the need to reconsider the whole regulatory framework wherein financial systems and actors operate today. It is the purpose of this paper to identify some of the problems international financial regulation needs to address, the different types of legal arrangements (hard and soft law) used for the international financial regulation, focus on the strengths and weaknesses of soft law as a regulation mechanism as well as give an opinion on the choice of soft or hard law as a legal arrangement to regulate international financial issues.

In the wake of increasing corporate disasters, there has been an urgent need to address the impact of business on human rights. Yet business responsibilities for human rights are mainly voluntary and best understood as ‘soft law’. Recently, however, States have begun negotiations for an internationally binding treaty in this area, suggesting that there is a need to turn to ‘hard law’ to increase the efficacy of business and human rights (BHR) initiatives. This article argues that because soft and hard law concepts are not dichotomous, BHR governance need not become ‘hard law’ to be effective. Rather ‘hardened’ soft law instruments can be equally effective.

Contents: Foreword Introduction PART I: OF REFUGEE 'CRISIS', NORMATIVE 'SOFT LAWS' AND 'HUMAN RIGHTS' 1. Refugee Law as Perpetual Crisis Catherine Dauvergne 2. The UNHCR Handbook and the Interface between 'Soft Law' and 'Hard Law' in International Refugee Law Satvinder Singh Juss 3. Is Humanity Enough? Refugees, Asylum Seekers and the Rights Regime Colin Harvey PART II: OF THE ADVENT OF NEW REFUGEES 4. A Child-rights Framework for Assessing the Status of Refugee Children Jason M. Pobjoy 5. Protecting Trafficked Persons from Refoulement: Re-examining the Nexus Susan Kneebone 6. Draft Dodger/ Deserter or Dissenter? Conscientious Objection as Grounds for Refugee Status Penelope Mathew 7. Gender Asylum Law: Providing Transformative Remedies? Siobhan Mullally PART III: OF THE SECURITIZATION, EXCLUSION AND INTERNAL RELOCATION OF REFUGEES 8. The Securitization of Asylum and Human Rights in Canada and the European Union Idil Atak and Francois Crepeau 9. Ethics and the Exclusion of Those who are 'Not Deserving' of Convention Refugee Status James C. Simeon 10. Internal Relocation Alternative in Refugee Status Determination: Is the Risk/Protection Dichotomy Reality or Myth? A Gendered Analysis Rebecca Wallace Index

The first frameworks defining standards of human rights protection specifically for business enterprises were non-binding “soft law” like the UN Guiding Principles on Business and Human Rights. In recent times, a “hardening” of corporate human rights law has taken place. Several acts of “hard law” have been implemented at a national and EU level. This article provides an overview of the most important ones. The “hard law” provisions differ in their scope: some obligate companies to report on human rights, others stipulate concrete obligations to conduct human rights due diligence. Another way of tackling the issue of human rights compliance has been demonstrated by the prosecution of companies in the United States. While procedural guidelines abstractly stipulate an effective compliance system to be a mitigating factor, the US Department of Justice regularly defines concrete compliance obligations in deferred or non-prosecution agreements. This development could lead to comprehensive liability for negligence due to organisational and monitoring deficiencies. But who defines the standards? This article examines how the changing practice of human rights compliance may have “feedback effects” on hard law, particularly by changing the scale of negligence. Regarding the lack of effectiveness of some due diligence measures, especially in the “certification industry”, it is then asked how legislation may proactively exert influence by defining effective CSR instruments necessary to prevent civil and criminal liability. Using the example of German law, a proposal is made to implement an obligation of human rights due diligence in “hard law” and, simultaneously, set up an independent expert commission that drafts guidelines specifying the necessary measures for different kinds of companies.

The arbitration regime is a multidimensional system. Together with ‘hard laws’, ‘soft laws’ are also inalienable components of the arbitration regime. ‘Soft laws’ are non-state enacted texts, which aims at regulating procedural issues in international commercial arbitration. Although ‘soft laws’ are not legally binding, they are of some normativity. ‘Soft laws’ cover various arbitration topics, ranging from arbitration law harmonization, arbitration evidence, arbitration ethics and arbitration management skills to the latest arbitration developments. The functions of ‘soft laws’ are evidenced therefrom. The history of arbitration, global governance, and social interrelation all help to explain why ‘soft laws’ are created, developed and somewhat complied with. Facing the difficulties in modifying the 1995 Chinese Arbitration Law and the rapid developments of the Chinese arbitration market, it is time to shift minds from the ‘hard law approach’ to the ‘soft law approach’. China is suggested to establish more robust arbitration community, to participate more in ‘soft laws’ enactment, to enact its own ‘soft laws’ regime, to enhance the cooperation among ‘hard laws’ and ‘soft laws’, and to wisely take advantage of the functions of ‘soft laws’.

With the proliferation of European Union soft law instruments (Oana Andreea Ştefan, European Union Soft Law: New Developments Concerning the Divide Between Legally Binding Force and Legal Effects, 75(5) Modern L. Rev., 879, 879 (2012).) since the nineties, the legal bindingness of these measures has been the subject of several studies, (Most prominently, Gustaaf M. Borchardt & Karel C. Wellens, Soft Law in European Community Law 14(5) Eur. L. Rev. (1989); Linda Senden, Soft Law in European Community Law (Hart 2004); Linda Senden, Soft Law and Its Implications for Institutional Balance in the EC, 1(2) Utrecht L. Rev.(2005); Jürgen Schwarze, Soft Law im Recht der Europäischen Union,1 EuR (2011); Anne Peters, Soft Law as a New Mode of Governance, in The Dynamics of Change in EU Governance, 21–51 (Udo Diedrichs, Wulf Reiners & Wolfgang Wessels eds, Edward Elgar 2011); Oana Andreea Ştefan, Soft Law and the Enforcement of EU Law, in The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (András Jakab & Dimitry Kochenov eds, Oxford University Press 2016).) indeed, various approaches (rationalist, constructivist, hybridity) (David M. Trubek, Patrick Cottrell & Mark Nance, ‘Soft Law’,‘Hard Law’, and European Integration: Toward a Theory of Hybridity, 02(05) Jean Monnet Working Paper (2005); Oana Andreea Ştefan, Hybridity Before the Court: A Hard Look at Soft Law in the EU Competition and State Aid Case Law, 37(1) Eur. L. Rev. 49–69 (2012).) have been deployed to define and delimit soft law from hard law, even arriving at a sophisticated taxonomy of soft and hard measures. (Fabien Terpan, Soft Law in the European Union – The Changing Nature of EU Law. Working Paper Nr. 7 Sciences Po Grenoble (Nov. 2013); Anne Peters, Typology, utility and Legitimacy of European Soft Law, in Die Herausforderung von Grenzen. Festschrift für Roland Bieber, 405–428 (Astrid Epiney, Marcel Haag & Andreas Heinemann eds., Nomos 2007); Peter Christian Müller Graf, Das Soft Law der Europäischen Organisationen: Einführung, in Das soft law der europäischen Organisationen, 146–154 (Julia Iliopoulos-Strangas & Jean-Francois Flauss eds., Nomos 2012).) While these inquiries are of fundamental importance to formulate an ontology of European soft law, national courts and authorities implementing and applying soft law are faced with the more practical problem of the bindingness of these measures in a given case. Member States are often at a loss for which measures they are expected to apply and may ʻunexpectedlyʼ find themselves bound by certain soft law measures. Since the jurisprudence of the Court of Justice of the European Union sheds some light on the legal obligations ensuing from the different types of European soft law, the present article is an attempt to categorize and determine the bindingness of such measures for national courts and authorities based on the relevant case-law of the Court.