A Public International Law Perspective on the International Cooperation of Financial Regulatory Authorities (La Coopération Internationale Des Autorités de Régulation du Secteur Financier et le Droit International Public)
MONDIALISATION ET DROIT INTERNATIONAL, p. 795, Bruxelles, Bruylant, 2011
Posted: 6 Dec 2011
Date Written: November 18, 2011
International cooperation among financial regulatory authorities has developed in response to insufficient control over increasing internationalization of trade in financial services. Occurring outside the customary diplomatic channels, this process seems to be achieved on the fringes of international law. As such, it has barely been the focus of attention of public international lawyers. However, an in-depth analysis shows the relevance of the public international law angle.
From an institutional perspective, the cooperation of national regulatory authorities is indeed a genuine interstate phenomenon. Their activity is related to the sovereign activity of their state and the agreements they undertake between them are potentially treaties under international law. They have established permanent fora for cooperation such as the Basel Committee on Banking Supervision (B.C.B.S), the International Organization of Securities Commissions (I.O.S.CO.) and the International Association of Insurance Supervisors (I.A.I.S.). The functioning and legal regime of these institutions are similar to those of classic international organizations.
The cooperation of regulatory authorities through the aforementioned new kind of international institutions has also led to spontaneous normative developments. This has resulted in the adoption of common norms – international financial standards – which are meant to be transposed into national legal orders. Although not being public international rules, a multidimensional legalization process of these standards has occurred, unbeknown to their creators, and reflects on the development of new ways of setting and implementing influential international rules.
The analysis is particularly relevant in highlighting novel legal problems arising from the impact, at the international level, of an ill-controlled separation of powers in national legal orders, which result from the rise of independent regulatory authorities.
Keywords: International financial regulation, international financial governance, separation of powers, administration agencies, central banks, financial regulatory authorities, Soft law, Memorandum of Understanding, Basel Committee, Bank for International Settlements, IOSCO, IAIS, IMF, WTO
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