Study On The Implementation Of Soft International Financial Law

From the perspective of international law, soft law means the documentationspromulgated not to have legal binding force, but to intend to have actual orsubstantive effects in some certain areas such as human rights, international crimes,international finance and so on. As a special reflect of soft law in international finance,soft international financial law arises on the background of global financialgovernance, and as such received a popular attention. Soft international financial lawmeans the documentations without legal binding force, promulgated by nations,governmental international organizations or international financial organizations toregulate international financial relationship. As a result, soft international financiallaw obtains a difference with Treaty, customary international law, international usage,simple goodness and any other common value of mankind. In the area of internationalfinance, a large number of soft law do exist and play an important role. However, onlythe IMF and World Bank System and the WTO Financial Service System locate in thedefinition of international law. Present international finance provides three main kindsof soft law, which are best practices, regulatory reports and observations, andinformation-sharing and enforcement cooperation.Theoretically, there is a wide debate on whether soft law is the real law. Somescholars define soft law as regulations with legal effects and as such consider soft lawas law in a broad sense. However, because the general understanding of a legal concept is the concept generally accepted, this paper holds that soft internationalfinancial law is not the law in the usual sense, and as such has no legal binding force.Although soft international financial law has no legal binding force, it can alsoproduce actual or substantive effects in international finance. Compared withinternational trade and other international areas, the implementation in internationalfinance of soft law is harder, because of the double needs of international affairs andfinance affairs. One hand, the traditional international law is born with a disadvantagein the global financial governance, on the other hand, soft law has its own feature:1.Soft law can reduce the negotiation cost and sovereignty cost;2. Soft law encouragesthe shaping of international financial criterion;3. Soft law provides a brand newalternative to the future uncertainty and eliminates the unpredictable legal obligations.As for the implementation, soft international financial law may create actualeffects by translating into domestic law or international law. But this paper focuses onthe implementation of soft international financial law as soft law per se, which is themain way that soft international financial law is implemented. As soft law, softinternational financial law can be implemented incompletely, but some specific rulesof soft international financial law can be implemented perfectly. To explain suchphenomenon, there are four different theories which are Doctrine of Efficient Breach,Doctrine of Natural Law, Estoppel and Self-restriction Doctrine, and Doctrine ofAssurance Game. Practically, this paper holds that the wide range of rule-makers, thespecial nature of soft law, the inner rationality of soft international law and the speedof renovation and update jointly promote the implementation. In the near future, softinternational financial law will develop independently, and the effectiveness will bestrengthened continuously.Present soft international financial law, in a certain extent, reflects thesupervisory idea and value of rich countries and does not necessarily fit the localdevelopment directions of developing countries. China, this paper suggests, may keepa prudent attitude to newly-promulgated soft international financial law, and shouldattempt to strengthen its own voice during the rule-making process of international financial criterion.