Research On The Soft Law In The Global Financial Governance

Because of the emergence of the Global Governance and the effects of the2008-2009Financial Crisis, Global Financial Governance has become a popular topic both in practice and theory. Many issues need be resolved through global governance, with the deepening process of globalization, including the governance of international financial crisis and the reform of international financial system which are currently discussed by the international community. In the process of global financial governance, soft law has played a unique and important role and therefore become the focus of this study.Besides the Introduction, this dissertation comprises five chapters.Chapter One refers to the theoretical basis of the global financial governance. This chapter introduces the characteristics and the reality needs of the international financial community, and these analyses show the necessity for global financial governance. Then, the use of global governance theory further specifies the meaning of global financial governance. It means the global governance of international financial sector, which includes all elements of global governance. Global financial governance has the characteristics of diversification of rules and the subjects. The value of global financial governance is to establish and maintain the international financial order, improve efficiency, maintain financial interests of consumers, and in particular the implementation process to achieve good governance in the financial field. Meanwhile, This chapter laid the foundation for further discussion through analysis and concluding the basic issues of international soft law, including concepts and content, classification, function and meaning, binding and the relationship between soft law and hard law,Chapter Two refers to the status and role of soft law in Global financial governance.Traditional sources of International Law, such as Treaty and International custom, have limitations so that they can not achieve the goal of Global Financial Governance. And owing to the the theory of Global Governance and the characteristics of finance, Global Financial Governance has the special needs of soft law. In the course of Global Financial Governance, soft law plays its role in saving negotiation costs, saving sovereignty costs, allowing divergent preferences, providing uniform standards, coping with the uncertainty and reaching a basis for the next negotiation. And also this chapter use the examples of Basel Accords, Santiago Principles and the decision of establishment of Financial Stability Board to explain the Important role of soft law.Chapter Three discussed the enactment of soft law in global financial governance. As the enactment of soft law in global financial governance was distinctive, this chapter first studied the enacting subjects, indicting the subjects contained traditional international organizations, international Financial Standard-setting Bodies and Financial Stability Board, among which Financial Standard-setting Bodies were the main subjects. At the same time, this chapter analyzed the decisive factors when considering enacting traditional hard law or soft law:the text version, the participants’attitudes, the content and topics. At last, the international soft law for regulating Sovereign Wealth Funds——the Santiago Principle was discussed, aiming to show the unique enacting procedure of international financial soft law and gaining some inspirations, through analyzing the enacting procure and the organizations and institutions which had decisive influence in the enacting procure.The fourth chapter discusses the effectiveness of soft law in global financial governance. Based on the understanding of the law discussed in the first chapter, this chapter introduces the theory of traditional international law to understand of the basis for the force of international law. The second section of this chapter from natural law, positive law school and law school of social solidarity point of view, explains respectively why the States will comply with the commitment between them, and gets a conclusion that the traditional international law can not explain this very well. Therefore, the next part focuses on to figure out how the country to Compliance with commitments from the point of views of international relations theory, international regulation theory and social control theory. The third section of this chapter is a case analysis about typical international soft law in the financial fields, and gives the More specific understanding of the compliance theory.Chapter Five is about the development of soft law in the process of global financial governance. In order to achieve the goal of global financial governance, the specific rules of soft soft law will increase the number and quality, will be gradually improved, and some of them will be possible to harden. For the purpose to support these claims, There are some reality examples to given. The second part of this chapter refers to the existing international financial regulatory system, which has few provisions legally binding. Some scholars believe that such an international financial regulation system should be hardened. This opinion are investigated in a variety of different ways:first choice is the existing international institutions such as WTO, IMF; next is about to learn the experience of the European Union; and the last choice is to conclude a new treaty. After all these discussion, we find unfortunately the only realistic choice is the Financial Stability Board. And this fact has proven the functions of soft law and indicated the development of it in a short term. It is sure that the numerous international financial soft laws won’t disappear in a sudden, and are still important and special in international financial fields.