Soft Law Regulation Research Articles

Integración e incorporación de las normas internacionales de soft law sobre derechos humanos a los sistemas penal y disciplinario en Colombia

Las normas de derecho blando no han sido consideradas como obligatorias, por no aparecer en tratados internacionales. Sin embargo, una interpretación que reconozca la dignidad humana y pretenda la ampliación del alcance de los derechos humanos permite que, a través del control de convencionalidad, dichas normas se integren al ordenamiento jurídico colombiano, por componer el Bloque de Constitucionalidad. Esta novedad ha sido introducida por el Código Penitenciario y Carcelario, desde el cual las normas de derecho blando pueden incorporarse al Código Penal y de Procedimiento Penal; similar ejercicio cabría en el derecho disciplinario, debido a que el sistema penal es uno solo; al igual que el sistema disciplinario.

Examining agency governance in the European Union financial sector – a case-study of the European Securities and Markets Authority

Ever since the outset of the financial crisis of 2009, agencies have emerged as key actors of European Union (EU) financial sector governance. As an organisational form that can be insulated from national political pressures, and committed to the Union interest, agencies proliferated in the financial sector ushering the agencification trend in finance. In this sense, the European Securities and Markets Authority (ESMA) – as part of the European Supervisory Authorities – practically embodies this trend. ESMA presents a radical shift in financial markets’ governance due to the nature of its soft law regulations and the direct impact it exerts on addressees’ behaviour in emergency circumstances. But ESMA’s success in optimising financial sector governance largely depends on its legitimacy, which is centred on independence. At the same time independence demands wider participation and inclusiveness of the decision-making process. This is not easy to achieve in a complex system with multiple stakeholders as is the governance of the EU financial sector (e.g., EU institutions, national actors, private sector). This paper examines ESMA’s interinstitutional relations and independence in light of publicly voiced criticism. We find that ESMA’s main executive bodies are still susceptible to influences by Member States as well as EU institutions (i.e., Commission), which undermines its operational independence.

Current Development of Corporate Legislation

Large-scale and permanent changes in the current conjuncture determine the development of lawand legislation. In context of global business, the issue of competing national legal regimes remains topical. Countries develop dynamically and win greatly if they have a comfortable legal environment, which covers securities market and corporate governance. This paper analyzes the current corporateand securities market legislation. The modern Russian corporate law is at the stage of updating andgradual diverse development involving the activity of public and non-public companies, limited liability companies, exercising a shareholder information right. The article stresses the corporate law reform concerning public and non-public corporations in Russia and the legal assessment of modified rules.The objectives of the paper are to identify the challenges faced by the new corporate law and to comprehend to what extent the Russian experience is correlated with the similar processes in other countries and best international practices of corporate governance. Corporate relationships in limited liability corporations still have own specifics. It demonstrates only a technical convergence of the legalregimes for non-public joint stock corporations and limited liability corporations. Improving corporate law is closely related to the formation of the soft law regulation, in particular in corporate governance.

Responsible Innovation and the Innovation of Responsibility: Governing Sustainable Development in a Globalized World

Earth’s life-support system is facing megaproblems of sustainability. One important way of how these problems can be addressed is through innovation. This paper argues that responsible innovation that contributes to sustainable development (SD) consists of three dimensions: (1) innovations avoid harming people and the planet, (2) innovations ‘do good’ by offering new products, services, or technologies that foster SD, and (3) global governance schemes are in place that facilitate innovations that avoid harm and ‘do good.’ The paper discusses global governance schemes based on deliberation as a means to foster such responsible innovation. These schemes can provide voluntary soft-law regulations that complement and extend national and international hard-law regulations and facilitate collective innovation that contributes to SD goals. The article addresses the facilitative role of governments and international organizations in overcoming problems of deliberation and offers illustrative examples of such governance schemes.

The global prospects of taxation

As the process of establishing international economic and financial relations between national economies is on the rise, many states encounter substantial difficulties in the process of collecting their tax claims. The most powerful countries in the world try to overcome this controversy by changing the international tax rules. The turning point was the financial-economic crisis of2008-2009, when the international community more vigorously embarked on resolving international tax issues. The OECD, the G20, the UN, the EU and a number of other powerful international organizations continued their activities on establishing a stronger framework of the international tax system. Global tax initiatives embodied in the soft law regulations have changed (to a varied extent) the structure of national tax systems as well as the direction of national policies, and ultimately undermined the financial foundations of the social welfare state. The world's 'taxation landscape' is indisputably dominated by two major processes embodied in the concepts of tax harmonization and tax competition. The global crisis in financing contemporary states has weakened their resistance towards more extensive international tax cooperation. As a result, they increasingly accept global tax standards and are more vigorously involved in the international exchange of tax information for the purpose of counteracting international tax fraud. Changes in national tax systems are necessarily accompanied by changing relations between tax administrations and multinational companies as large taxpayers. The traditional public law relations are gradually changed by introducing some elements of 'negotiations and mutual agreement', which are aimed at strengthening mutual trust and avoiding unnecessary disputes and costs. Although they are currently no more than theoretical assumptions and political considerations, there are proposals for introducing global taxes and establishing the world tax organization. Irrespective of the idealistic or utopian nature of these proposals, we simply cannot rule out the possibility that a future world disaster may serve as an valid excuse for accepting global taxes in order to remove the detrimental consequences of a force majeure. In that context, there is a growing number of countries that have been accepting the global tax standard on the automatic exchange of financial information, which has laid a solid legal and technical ground for introducing global taxation. The 'global taxation network' is gradually extending to all tax payers, featuring full fiscal transparency. Unless such global plans are undermined, all natural and legal persons will de lege ferenda become prisoners of the global fiscus. Unfortunately, such an apocalyptic future of taxation is quite probable considering the determination of the powerful international organizations and the world elite acting through these institutions to implement the global political agenda.

Corporate Governance Soft Law Regulations from a Social Norm Perspective

Purpose: This study applies the concept of social norm dynamics to explain how corporate governance soft law is enforced. Design/methodology/approach: Using data of German listed stock companies and of economic media coverage between 2001 and 2010, we observe the complex relationship between sanctions and behavior in the social context of corporate governance soft law. Findings: We find that the public discussion of normative demands related to corporate governance issues increases if firms do not comply with the German Corporate Governance Code. We show that groups of actors, such as DAX companies, represent the addressees of normative demands, i.e., targets of expectations about what is appropriate and what is not. We also find that normative demands tend to be personalized, as public discussion is greater when initiated by a specific individual or firm. Finally, we demonstrate that social control in terms of public sanctioning positively influences a firm’s compliance with the soft law, whereby negative statements (disapproval) outweigh the effects of positive statements (approval). Originality/ value: We corroborate the social character of normative demands in the context of corporate governance soft law, and contribute to a better understanding of why soft law can work despite its having no legally binding force. The results of our study suggest that sanction mechanisms in the context of social norms underpin the strength of soft law as an alternative to, or extension of, hard law.

The Determinants of the Introduction of Soft Law Regulation: The case of Basel Accord

The Determinants of the Introduction of Soft Law Regulation: The case of Basel Accord

Impact of soft law regulation by corporate governance codes on firm valuation: the case of Germany

Purpose – This paper aims to provide insight whether disclosed compliance with the German Corporate Governance Code (GCGC) leads to higher valuation on the German stock market. Design/methodology/approach – Based on agency theory, stakeholder theory and institutional theory, the authors conduct a meta-analysis and evaluate the value relevance of the compliance with the GCGC. Findings – The research finds that compliance with the GCGC is mainly not a value-relevant factor for German companies listed at the Frankfurt Stock Exchange. Research limitations/implications – The research considered is not fully comparable with regard to observation date, full integration of the GCGC rules and company selection/sample size. Future research is encouraged to research the valuation effects of compliance with the GCGC for a longer time horizon, the use of uniform performance measures and the integration of all GCGC rules. Practical implications – Compliance with the GCGC has not proven to be a value-driver for German listed companies. The authors recommend companies to search for opportunities to make their corporate governance more comprehensive by expanding their corporate governance reporting and thus providing deeper insights on how their processes of management and control work. Originality/value – The paper is the first investigation integrating the results of ten years of “code compliance – market valuation” research in Germany. We detect reasons why soft law regulation by corporate governance codes did not function on the German stock market. We additionally address behavioral aspects why investors do not give enough relevance to companies’ corporate governance statements so far.

Реализация международно-правовых норм в сфере противодействия торговле людьми в Российской Федерации

The article examines the legal issues connected with the implementation of the rules of international law on the combating trafficking in persons in the legislation of the Russian Federation. Comparing provisions of treaties, soft law and legal regulations of Russian and foreign legislation concerning combating trafficking in persons the author comes to the conclusion of the necessity of improvement of Russian legislation in the field of prevention of trafficking in persons, its criminalization and penalization, trafficking victims protection. 

Dealing with Scientific Integrity Issues: the Spanish Experience

Integrity has been an important matter of concern for the scientific community as it affects the basis of its activities. Most countries having a significant scientific activity have dealt with this problem by different means, including drafting specific legal or soft law regulations and the appointment of stable or ad hoc committees that take care of these questions. This has also been the case in Spain. After the period of transition between dictatorship to a democratic regime, and, particularly, after the entrance in the European Union, scientific activity has increased in the country. As it could be expected, problems of misconduct have appeared and different institutions have been dealing with these matters. One of the best examples is that of Consejo Superior de Investigaciones Cientificas (CSIC), the largest institution devoted to scientific research belonging to the Spanish Government. The experience of the CSIC’s Ethics Committee in dealing with conflicts related to scientific practices is discussed here.

Input and Output Legitimacy of Multi-Stakeholder Initiatives

ABSTRACT:In a globalizing world, governments are not always able or willing to regulate the social and environmental externalities of global business activities. Multi-stakeholder initiatives (MSI), defined as global institutions involving mainly corporations and civil society organizations, are one type of regulatory mechanism that tries to fill this gap by issuing soft law regulation. This conceptual paper examines the conditions of a legitimate transfer of regulatory power from traditional democratic nation-state processes to private regulatory schemes, such as MSIs. Democratic legitimacy is typically concerned with input legitimacy (rule credibility, or the extent to which the regulations are perceived as justified) and output legitimacy (rule effectiveness, or the extent to which the rules effectively solve the issues). In this study, we identify MSI input legitimacy criteria (inclusion, procedural fairness, consensual orientation, and transparency) and those of MSI output legitimacy (rule coverage, efficacy, and enforcement), and discuss their implications for MSI democratic legitimacy.

The Soft Touch of IO Bureaucrats: A Public Choice View of International Regulation

The crafting of new international regulatory directives is often done within international organizations (IOs). This paper shows how a public choice framework can explain this trend. Models of bureaucracy are presented against which the conditions and incentives of international bureaucrats are contrasted. Politicians can benefit from cooperation with international bureaucrats to promote their political agenda while the latter has the incentives to pursue new projects to further personal goals. By issuing regulations, international bureaucracy and politicians alike can advance their career. The increase of soft law regulations has a high potential of success in this regard, which is why the spread of international norms, codes and principles is likely to continue.

The 'Santiago Principles' for Sovereign Wealth Funds: A Case Study on International Financial Standard-Setting Processes

This article considers the subject of 'multi-level governance' respecting ' financial standard-setting' through the lens of the 2008 'Santiago Principles' and 2009 establishment of the International Forum of Sovereign Wealth Funds. Upon a US initiative, the matter fell on to the policy plate of the G-20 Finance Ministers and was then translated into 'administrative marching orders' for the International Monetary Fund (IMF), Organisation for Economic Co-operation and Development (OECD) and World Bank to work with the major sovereign wealth funds (SWFs) and others in devising a set of 'best practices'. What transpired has been a sui generis, ad hoc, 'multi-level, rule-oriented governance network process'. The immediate 'deliverable' has been a set of 'international best practices' (Santiago Principles). The related International Forum of Sovereign Wealth Funds encapsulates a new ongoing 'institutional', 'administrative', and 'qualified self-regulatory' process for implementing, interpreting, revising, adjusting, monitoring, and assessing these Principles and for further fostering their global acceptance as part of the post-global-financial-crisis 'international architecture'. These developments add a new component to the global capital markets and to the proliferation of 'global administrative networks' and related 'soft law regulation' in the area of international economic financial law. Tangentially, this SWF phenomenon raises the question of the interconnected roles of the IMF, OECD, World Bank, United Nations, International Labour Organization and World Trade Organization, along with the related-linked 'soft law, regulatory network(s)', in the 'new international financial architecture'. Oxford University Press 2010, all rights reserved, Oxford University Press.

Are Codes of Conduct in Global Supply Chains Really Voluntary? From Soft Law Regulation of Labour Relations to Consumer Law

Labour and employment law no longer has a monopoly on regulating labour relations and is facing a crisis as its effectiveness is questioned. Codes of conduct adopted by companies to recognise their social responsibility for the global supply chain are instruments that can usefully complement labour and employment law. The aim of this paper is to analyse in depth the legal nature of codes of conduct and their impact on labour and employment law. Will the use of codes of conduct reinforce the crisis of labour and employment law in the era of globalisation or will these codes be part of a solution to this crisis? Do we have to consider codes of conduct as competitors to labour and employment law or as an opportunity for rethinking the way that labour and employment law norms should be produced and applied?