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Soft Law (soft + law)
Selected AbstractsEastern Donors and Western Soft Law: Towards a DAC Donor Peer Review of China and India?DEVELOPMENT POLICY REVIEW, Issue 5 2010Sebastian Paulo The international system is still governed by a normative framework designed mainly by OECD countries, especially with regard to soft-law standards in the field of development co-operation. However, the growing relevance of ,Eastern donors' is weakening its efficiency and raises the question of how compliance with these standards can be assured in a changing donor landscape. Despite efforts to integrate emerging countries into the traditional approach of the OECD Development Assistance Committee (DAC) to monitoring compliance through peer reviews, the aid architecture of the future might turn out to be a synthesis of established and new approaches. [source] Resolving Deadlock: Why International Organisations Introduce Soft LawEUROPEAN LAW JOURNAL, Issue 2 2006Armin Schäfer Instead the EU relies on soft law that does not legally bind governments in the same way as the Community Method used to. The literature assumes that soft law is chosen to achieve common objectives given considerable diversity among the Member States. In contrast, this paper suggests that non-binding coordination is first and foremost a means to foster compromises in the absence of substantial agreements. Three case studies demonstrate that international organisations have repeatedly relied on soft law to overcome disagreements among their members. The IMF, the OECD, and the EU introduced soft coordination at times of institutional crisis to prevent a breakdown of negotiations. [source] Forms of Governance in European Union Social Policy: Continuity and/or Change?INTERNATIONAL SOCIAL SECURITY REVIEW, Issue 2 2006Gerda Falkner This article addresses the question of the evolution of regulatory and distributive social policy at European Union (EU) level, with special emphasis on its quantitative aspects. Data collected in meticulous detail on the EU's powers in the area of social policy and their practical implementation from the early days of European integration through to the end of 2002 are presented in a range of figures and tables. It becomes apparent that, quantitatively speaking, the body of EU social law in existence to date is impressive. Contrary to expectation, non-binding forms of action have not replaced those which are binding, or at least not yet. Soft law and the "open method of coordination", the subject of so much recent debate, are rather a complement to classic legislation, entailing a minimum of harmonization. In terms of political science and legal theory this means that while the neo-voluntarism and legalization hypotheses highlight important aspects of EU social policy, neither of them represents the whole story. [source] Why Adopt Codes of Good Governance?CORPORATE GOVERNANCE, Issue 1 2008A Comparison of Institutional, Efficiency Perspectives ABSTRACT Manuscript Type: Empirical Research Question/Issue: Given the global diffusion and the relevance of codes of good governance, the aim of this article is to investigate if the main reason behind their proliferation in civil law countries is: (i) the determination to improve the efficiency of the national governance system; or (ii) the will to "legitimize" domestic companies in the global financial market without radically improving the governance practices. Research Findings/Insights: We collected corporate governance codes developed worldwide at the end of 2005, and classified them according to the country's legal system (common or civil law). Then, we made a comparative analysis of the scope, coverage, and strictness of recommendations of the codes. We tested differences between common law and civil law countries using t-tests and probit models. Our findings suggest that the issuance of codes in civil law countries be prompted more by legitimation reasons than by the determination to improve the governance practices of national companies. Theoretical/Academic Implications: The study contributes to enriching our knowledge on the process of reinvention characterizing the diffusion of new practices. Our results are consistent with a symbolic perspective on corporate governance, and support the view that diffusing practices are usually modified or "reinvented" by adopters. Practitioner/Policy Implications: Our results support the idea that the characteristics of the national corporate governance system and law explain the main differences among the coverage of codes. This conclusion indicates the existence of a strong interplay between hard and soft law. [source] Will Executive Pay Globalise Along American Lines?CORPORATE GOVERNANCE, Issue 1 2003Brian R. Cheffins In the United States, the remuneration packages of top executives are characterised by a strong emphasis on pay,for,performance and by a highly lucrative "upside". There is much discussion of the possibility that executive pay practices will globalise in accordance with this pattern. This paper assesses whether such convergence is likely to occur. It does so by considering market,oriented dynamics that could constitute a "global compensation imperative". It also takes into account possible obstacles to the Americanisation of executive pay, such as legal regulation, "soft law" and "culture". The paper concludes with a brief series of normative observations. [source] What are the Future Prospects for the European Social Model?EUROPEAN LAW JOURNAL, Issue 3 2010An Analysis of EU Equal Opportunities, Employment Policy The aim of our article is to examine the future prospects of the European Social Model (ESM). First, the article defines the ESM as a mixture of hard law, soft law and underlying norms and values. Second, the article analyses the ESM on a more detailed level in the case of the law of equal opportunities and employment through a historical account and the legal dynamics of integration. The results of the analysis indicate a growing integration capacity of the ESM. Yet, this runs counter to the current neoliberal preferences of the Barroso Commission which has moved from a strategy of combining economic growth and social cohesion, to one in which economic growth creates social cohesion. [source] Resolving Deadlock: Why International Organisations Introduce Soft LawEUROPEAN LAW JOURNAL, Issue 2 2006Armin Schäfer Instead the EU relies on soft law that does not legally bind governments in the same way as the Community Method used to. The literature assumes that soft law is chosen to achieve common objectives given considerable diversity among the Member States. In contrast, this paper suggests that non-binding coordination is first and foremost a means to foster compromises in the absence of substantial agreements. Three case studies demonstrate that international organisations have repeatedly relied on soft law to overcome disagreements among their members. The IMF, the OECD, and the EU introduced soft coordination at times of institutional crisis to prevent a breakdown of negotiations. [source] Why has the Stability and Growth Pact Failed?INTERNATIONAL FINANCE, Issue 2 2004Jakob De Haan This paper evaluates the Stability and Growth Pact. After briefly examining the rules in place and the experience so far, the Pact is analysed from a political economy perspective, focusing on the choice of hard versus soft law and drawing inferences from characteristics of successful fiscal rules at the state level in the USA. The main argument of the paper is that the Pact's enforcement mechanisms are too weak. It is also argued that big countries are less likely to adhere to the fiscal policy rules in place. Reform of the Pact should aim at stricter, instead of more flexible, rules and should not rely on cyclically adjusted deficit estimates. [source] Transnational Governance in Global Finance: The Principles for Stable Capital Flows and Fair Debt Restructuring in Emerging Markets1INTERNATIONAL STUDIES PERSPECTIVES, Issue 3 2010Raymond Ritter This paper analyzes and assesses the "Principles for Stable Capital Flows and Fair Debt Restructuring in Emerging Markets," which have emerged as an important instrument for crisis prevention and crisis resolution in the international financial system. The paper argues that, notwithstanding their low profile, the Principles which were jointly agreed between key sovereign debtors and their private creditors in 2004 have proved to be a useful instrument in spite of their voluntary and non-binding nature. Indeed, an increasing number of sovereign debtors and private creditors have adopted the Principles' recommendations on transparency and the timely flow of information, close dialogue, "good faith" actions, and fair treatment. The paper, taking a rational choice perspective, appraises the Principles as the product of a transnational public-private partnership as well as a soft mode of governance. Moreover, it shows how the Principles have moved somewhat along the continuum of soft law and hard law toward the latter. Finally, the paper makes the case that the Principles and their design features can provide some lessons for the current international policy debate on codes of conduct in global financial regulation. [source] Sharks, skates and rays in the northeast Atlantic: population status, advice and managementJOURNAL OF APPLIED ICHTHYOLOGY, Issue 2009M. W. Clarke Summary The fisheries management system in the northeast Atlantic is complicated. It was not designed with management or conservation of elasmobranchs in mind. Gradually, however, the system has taken elasmobranchs into account. Managers have asked science to provide advice, and in some cases management actions have followed. The purpose of this short review is to explain the system of assessment and advice, especially how it relates to sharks, skates and rays. Emphasis is on the legal framework, however, soft law and the role of the conservation movement are also discussed. [source] Contested hybridization of regulation: Failure of the Dutch regulatory system to protect minors from harmful mediaREGULATION & GOVERNANCE, Issue 2 2010Bärbel R. Dorbeck-Jung Abstract The hybridization of regulatory modes and instruments is currently a popular way to improve public regulation. However, it is still unclear whether combinations of hard law and soft law, co-regulation, and legally enforced self-regulation really make regulation more effective. Using the analytical framework of the "really responsive regulation" approach, in this article we explore effectiveness problems in a hybrid regulatory system that tries to protect minors from harmful media. In our analysis of low compliance rates in the context of system failures, we argue that effectiveness problems seem to arise from poorly informed staff members, lack of internal and external controls, low rule enforcement, insufficient overlap between public and private interests, poor social responsibility in the Dutch media sector, deficiencies in the institutional framework, an inconsistent regulatory strategy, and inadequate responses from responsible regulators. Furthermore, based on our case study we argue that institutional dynamics of standard-setting activities can be detrimental to regulatory goal achievement if there is no compensation at the systemic level. Ongoing "regulatory care" through control, corrective responses, and rule enforcement seems to be crucial for a hybrid regulatory system to perform well. [source] Discretion unbound: Reconciling the Charter and soft lawCANADIAN PUBLIC ADMINISTRATION/ADMINISTRATION PUBLIQUE DU CANADA, Issue 4 2002Lorne Sossin This study explores the relationship between discretion and the Charter and argues for a broader, more contextual approach to remedying the source of unconstitutional discretion. Guidance as to how to exercise broad discretionary authority comes in the form of "soft law," which encompasses a variety of non-legislative instruments such as policy guidelines and training materials, and which, more informally, extends to administrative culture. Administrative discretion involves choices and judgements usually shaped by a range of legal, bureaucratic, social and personal factors. Under present jurisprudence, the less precise a statutory discretion and the greater the reliance on non-legislative guidelines, the more difficult that discretion will be to subject to constitutional scrutiny. This article challenges this logic and concludes that respect for governmental accountability and the rule of law require bringing soft law out of the constitutional shadows. The first part of the analysis examines the regulation of discretion generally and soft law specifically outside the Charter. The second part analyses the leading case law on the regulation of discretion under the Charter. The third section explores the intersection of discretion, soft law and the Charter. Finally, the fourth section considers the problem of remedying unconstitutional exercises of discretionary authority. Alternative principles are suggested for the development and application of soft law, which envisions a central role for the Charter in rendering the discretionary decision-making process more accountable and just. A version of this paper was first presented at a workshop for the Twenty Years Under the Charter Conference, Association of Canadian Studies, Ottawa, 19 April 2002. The author is associate professor, Faculty of Law, University of Toronto. He is grateful to those who participated in that workshop for their suggestions and comments, as well as to Robert Chamey, David Dyzenhaus, Ian Greene, Nicholas Lambert, Ian Morrison and David Mullan, who commented on an earlier version of this paper. He is also indebted to his colleagues Sujit Choudhry and Kent Roach, who have shared their work on related themes. He would like to thank Laura Pottie and Aaron Delaney for their superb research assistance. He wishes to acknowledge the Social Sciences and Humanities Research Council, the Faculty of Law, University of Toronto, and the Connaught Foundation for their generous financial support of this research. Finally, he acknowledges the Journal's anonymous reviewers for their comments. [source] The Current Status and Prospects of the ,Strategic Partnership' between the EU and China: Towards the Conclusion of a Partnership and Cooperation AgreementEUROPEAN LAW JOURNAL, Issue 6 2007Antoine Sautenet In the absence of a category of ,emerging countries' in international economic law, the Union must adapt its foreign policy with regard to this major economic and commercial power. Relations between the European Community and China are currently governed by a second-generation agreement from 1985. However, a new dynamic has been set in motion since 2003, by the drawing up of preparatory documents by both parties and joint declarations at annual summits bearing on the ,strategic partnership'. Seen in a long-term perspective, this partnership helps provide a measure of predictability in relations between the two partners, through combining elements of ,soft law' and ,hard law'. If the insertion of political dialogue into the strategic partnership seems to alter the coherence of the Union, notably with regard to the difficulties of implementing the dialogue on human rights, the added value of the partnership lies essentially in its economic and commercial aspects, through not only the putting into place of non-binding ,economic dialogues' which cover a large spectrum of the relationship, but also by the multiplication of sector-based accords in numerous areas (maritime transport, customs cooperation, etc.). This constant development has thus allowed parties, at the last annual summit, to envisage the conclusion of a new framework agreement: this is the origin of the mandate given to the Commission in December 2005 to conclude a partnership and cooperation agreement. This article will sketch out a forecast of the legal framework, measured against the yardsticks of Asiatic regional reconfigurations and the law of the World Trade Organisation (WTO). The commercial risks of the relationship could imply the integration of the domains known as ,WTO plus' into the future agreement, notably in the field of investments and intellectual property rights, which would introduce a greater variety into the agreement. That being the case, the negotiations risk being equally fragile at the political level, in particular concerning the insertion of a clause of democratic conditionality in the future agreement. Also, any clash between the values and the interests of the EU would be uncomfortably highlighted during negotiations. [source] Law, ethics and pandemic preparedness: the importance of cross-jurisdictional and cross-cultural perspectivesAUSTRALIAN AND NEW ZEALAND JOURNAL OF PUBLIC HEALTH, Issue 2 2010Belinda Bennett Abstract Objective: To explore social equity, health planning, regulatory and ethical dilemmas in responding to a pandemic influenza (H5N1) outbreak, and the adequacy of protocols and standards such as the International Health Regulations (2005). Approach: This paper analyses the role of legal and ethical considerations for pandemic preparedness, including an exploration of the relevance of cross-jurisdictional and cross-cultural perspectives in assessing the validity of goals for harmonisation of laws and policies both within and between nations. Australian and international experience is reviewed in various areas, including distribution of vaccines during a pandemic, the distribution of authority between national and local levels of government, and global and regional equity issues for poorer countries. Conclusion: This paper finds that questions such as those of distributional justice (resource allocation) and regulatory frameworks raise important issues about the cultural and ethical acceptability of planning measures. Serious doubt is cast on a ,one size fits all' approach to international planning for managing a pandemic. It is concluded that a more nuanced approach than that contained in international guidelines may be required if an effective response is to be constructed internationally. Implications: The paper commends the wisdom of reliance on ,soft law', international guidance that leaves plenty of room for each nation to construct its response in conformity with its own cultural and value requirements. [source] Corporate-Governance Ratings and Company Performance: A Cross-European StudyCORPORATE GOVERNANCE, Issue 2 2010Annelies Renders ABSTRACT Manuscript Type: Empirical Research Question/Issue: Prior studies have failed to unequivocally establish a positive relationship between corporate-governance ratings and company performance, although theoretically, we would expect to find one. In this paper, we try to establish whether a positive relationship exists through modeling the relationship more carefully. Research Findings/Insights: After controlling for selection bias and endogeneity simultaneously, we find a significant positive relationship between corporate-governance ratings and performance. However, the strength of this relationship seems to depend on the quality of the institutional environment. Finally, we find that improvements in corporate-governance ratings over time result in decreasing marginal benefits in terms of performance. Theoretical/Academic Implications: Our paper contributes to the literature by showing that improved corporate-governance ratings lead to better performance, but that econometric problems might obscure this relationship. We also show that for a sample of developed countries the institutional environment affects the relationship between governance ratings and performance. Finally, this paper contributes to the literature on the impact, regarding compliance and effectiveness, of codes of good governance. Practitioner/Policy Implications: Our results are relevant for both companies and policy makers. They indicate that companies can improve performance by adhering to good corporate-governance practices. For policy makers, the findings suggest that soft laws and the invisible hand of the market lead to companies improving their corporate governance. [source] | |||||||||||||