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Why Soft Law Dominates International Finance - And Not Trade

Journal of International Economic Law, Vol. 13, No. 3, pp. 623-643, 2010

Georgetown Law and Economics Research Paper No. 11-17

Georgetown Public Law Research Paper No. 11-114

22 Pages Posted: 18 Jan 2011 Last revised: 5 Aug 2011

Chris Brummer

Georgetown University Law Center; The Institute of International Economic Law (IIEL); Atlantic Council; Milken Institute Center for Financial Markets

Date Written: January 17, 2011

Abstract

International financial law is in many ways a peculiar instrument of global economic affairs. Unlike international trade and monetary affairs, where global coordination is directed through formal international organizations, international financial law arises through inter-agency institutions with ambiguous legal status. Furthermore, the commitments made by regulatory officials participating in such forums are non-binding. This divergence is perplexing, especially when comparing international financial law to international trade. Both trade and finance comprise key areas of ‘international economic law’ and their rules have important distributive consequences for global markets and market participants. This article suggests that in order to understand soft law’s value as a coordinating mechanism, an institutional assessment of the way that law is enforced is necessary. Under close inspection, international financial law departs from traditional public international law notions of informality and can in fact be ‘harder’ than its soft-law quality suggests. This feature helps explain why international financial rules, though technically non-binding, are often relied upon. The predominance of international soft law in finance does not, however, imply that it is without flaws, and this article highlights important structural deficiencies that the World Trade Organization, a more mature legal regime, largely avoids.

Keywords: Trade, Finance, Soft Law, WTO, IOSCO, IMF, Basel Committee

JEL Classification: K00, K33, K20

Suggested Citation

Brummer, Chris, Why Soft Law Dominates International Finance - And Not Trade (January 17, 2011). Journal of International Economic Law, Vol. 13, No. 3, pp. 623-643, 2010; Georgetown Law and Economics Research Paper No. 11-17; Georgetown Public Law Research Paper No. 11-114. Available at SSRN: https://ssrn.com/abstract=1742512

Christopher J. Brummer (Contact Author)

Georgetown University Law Center ( email )

Washington, DC 20057
United States

HOME PAGE: http://www.law.georgetown.edu/faculty/brummer-chris.cfm

The Institute of International Economic Law (IIEL) ( email )

Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
United States

HOME PAGE: http://iielaw.org/member/chris-brummer-2/

Atlantic Council ( email )

1101 15th Street, NW
11th Floor
DC 20005
United States

HOME PAGE: http://chrisbrummer.com

Milken Institute Center for Financial Markets ( email )

1250 Fourth Street
Santa Monica, CA 90401
United States

HOME PAGE: http://chrisbrummer.org

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