Transnational Law: Practice Inspiring Theory
23 Pages Posted: 20 Dec 2011 Last revised: 17 Apr 2012
Date Written: December 19, 2011
The impetus behind this paper is unease. It is unease with a current discourse on international financial standards and their nature and role in international markets. The new discourse looks to gradations of normativity, "soft" through "hard" law, and points in-between, such as "coercive soft law." “Hard law” having disappointed, can "soft law," in the form of international standards, substitute for or augment traditional national legislation. This article examines some of the difficulties associated with this "international standards as soft law" discourse.
First of all, conceptual problems in the "soft law" discourse itself reveal profoundly different patterns of legal thought cutting across national boundaries. Secondly, recent experience, over the past decade, with some "soft law" international financial standards as both diagnostic and prophylactic tools, has been decidedly mixed, in fact, largely unsatisfactory. Thirdly, the "soft law" discourse in international finance appears strangely remote from the daily grind of international commercial practice, where the discourse is largely unknown. But perhaps in this disconnect between theory and practice lie clues to the normative forces at work in international finance, and in particular the international capital markets. The more one considers the world of international finance, the more obvious become the outlines of centuries old transnational merchant law, the contentious lex mercatoria.
Several intriguing implications arise from viewing international finance as a form of lex mercatoria. Was the global financial crisis triggered, in part, by a breakdown in the operation of lex mercatoria? Have the efforts to create international financial standards been an attempt to reinvent a lex mercatoria of finance?
A better understanding of the normative forces at work in the international capital markets, lex mercatoria being among them, can point to better ways of regulating them. As Gunther Teubner has noted, lex mercatoria may be "soft law," but it is not weak law.
Keywords: transnational law, lex mercatoria, international financial standards, IOSCO Principles, international capital markets
JEL Classification: F30, G19, G28, K20, K22
Suggested Citation: Suggested Citation