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Article
Publication date: 18 January 2021

Ejike Ekwueme

The purpose of this paper is to bring to the fore that soft laws should be taken very seriously because they have demonstrated their importance in helping to reduce…

Abstract

Purpose

The purpose of this paper is to bring to the fore that soft laws should be taken very seriously because they have demonstrated their importance in helping to reduce corruption and money laundering. Liberalisation of the markets and globalisation, undoubtedly, enabled the increase in the volume of commercial and economic interactions among natural and legal persons. As a result, the generation of profits and losses are noticeable. However, it became evident that some of the actors involved in corruption endeavour to dock the regulatory radars by way of laundering their illicit wealth. It is as a result of this, that the authorities reacted to checkmate this by way of fashioning out legislations that have cross-border and national characteristics. However, it was as a result of the inadequacies noticeable in the Conventions and their inability to contain the malaise that the soft laws surfaced to fill the lacunae to help dampen the momentum of corruption and money laundering. These significant soft laws include but not limited to the Financial Action Task Force (FATF), Organisation of Economic Development and Cooperation (OECD), Basel Committee on Banking Supervision (BCBS), Wolfsberg Group (WG) and International Chamber of Commerce (ICC). Although reservations were raised as to the composition of their decision-making apparatus, it is evident that countries still adhere to their pronouncements by way of adaptation, and they have made significant contributions in reducing corruption and money laundering.

Design/methodology/approach

This paper relies on primary legal documentations such as but not limited to the Financial Action Task Force, Basel Committee on Banking Supervision, Organisation of Economic Cooperation and Development, Wolfsberg Group, International Chamber of Commerce, the United Nations Convention on Corruption 2003, the Foreign Corrupt Practices Act 1977 and the United Kingdom Bribery Act 2010.

Findings

There is undoubtedly glaring indications that soft laws have made very significant impact to slow down the level of corruption and money laundering in many polities. It is evidently clear that most countries usually adapt the nuances of these laws into their domestic legislations in order not to be frozen out from the financial and economic activities of the dominant wider members. Evidentially, some of these countries may have been excluded from the core decision-making apparatus of the organisations with particular reference to mostly the developing countries. On the whole, the soft laws are a welcome relief in view of the impact that they have made.

Research limitations/implications

This paper is addressed to policy makers who are concerned on the negative implications of the scourge of money laundering and corruption. They should continue to inculcate the emissions that usually come from soft laws when formulating their policies in planning for economic growth.

Originality/value

The originality of this paper lies on the fact that it is essential that we awaken the importance of soft laws in containing the malaise as it has become evident that excuses have been made that it was forced on some of the recipient participants.

Details

Journal of Money Laundering Control, vol. 24 no. 4
Type: Research Article
ISSN: 1368-5201

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Article
Publication date: 13 August 2019

Victor Dostov, Pavel Shust, Anna Leonova and Svetlana Krivoruchko

The purpose of the paper is to explore the initial coin offering (ICO) statements as “soft law” instrument used to regulate disruptive innovations.

Abstract

Purpose

The purpose of the paper is to explore the initial coin offering (ICO) statements as “soft law” instrument used to regulate disruptive innovations.

Design/methodology/approach

The research is based on the qualitative content analysis of 40 ICO statements issued by regulators in 37 countries by applying a custom-made coding table.

Findings

The research shows that “soft law” is used predominantly by high-capacity jurisdictions. “Soft law” allows for more flexibility and less technological and business neutrality. The findings also show the contradiction between empirical evidence and public sentiment: it seems that the widespread notion that virtual currencies have connotations with money laundering/financing of terrorism (ML/FT) is not shared by the regulators, who are more concerned by the fraud. Finally, it was found that the standard-setting bodies are lagging behind in providing guidance on the emergence technologies.

Research limitations/implications

The content analysis is based on 40 statements, which is a limited set of data. The method might be subject to interpersonal bias, although arrangements were made to ensure the uniformity of coding process.

Practical implications

The findings imply that soft law is an attractive risk-mitigation tool when the object of regulation is still evolving but the risks are present. Soft law also might contradict with the “technology and business neutrality” principle which requires further research. Finally, the findings show the need for more active involvement of the standard setting bodies.

Originality/value

This is the first in-depth research of the ICO-related statements as “soft law” instruments. It also offers a new perspective on the issue of financial innovations regulation.

Details

Digital Policy, Regulation and Governance, vol. 21 no. 5
Type: Research Article
ISSN: 2398-5038

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Article
Publication date: 3 October 2016

Emmanuel Ebikake

The purpose of this paper is to provide an assessment of soft law as a technique for repressive and preventive anti-money laundering control (hereinafter AMLC).

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Abstract

Purpose

The purpose of this paper is to provide an assessment of soft law as a technique for repressive and preventive anti-money laundering control (hereinafter AMLC).

Design/methodology/approach

This article focuses heavily on understanding the nature of international anti-money laundering (AML) law-making process. The approach towards this question is interdisciplinary and looks at the treaty and non-treaty AML obligations through a prism of two theoretical lenses (legal positivism and liberal/legal process theory) to explain the role of soft law in the area.

Findings

Current international effort to combat money laundering (ML) is fragmented (as evident in the enormous variety of law-making processes), despite the role of soft law. Part of the problem is the divergent nature of domestic criminal legislation, which is reflected in the choice of predicate crime and a lack of procedural rule to identify and enforce the law at the state level. To address the limit of current efforts, the paper will propose a uniform codification of AML law directed by a more representative body or commission of experts offering means of restating, clarifying and revising the law authoritatively and systematically.

Research limitations/implications

The research is focused mainly on the theoretical issues relating to the subject of ML and less on any empirical case study.

Practical implications

The paper will focus on the role of soft law as a technique for repressive and preventive AMLC. Based on current analyses of the role of soft law as an alternative to hard law or as a complement to hard law (leading to greater cooperation), it attempts to outline the possible advantages and disadvantages that soft law could have in the context of AMLC. For example, the use of soft law promotes harmonisation of international AML standards through the Financial Action Task Force, while the role of the FATF remains unclear in international law. This is important for the purpose of responsibility, as the law on state responsibility clearly states when a State is responsible, in the event of a breach, and the consequence in international law.

Social implications

The implication of the paper is that it contributes to the on-going debate about the increasingly role of soft law-making in international law.

Originality/value

The research perspective to the study of ML is theoretical and focuses on the nature of the law.

Details

Journal of Money Laundering Control, vol. 19 no. 4
Type: Research Article
ISSN: 1368-5201

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Article
Publication date: 2 February 2015

Anne Galander, Peter Walgenbach and Katja Rost

– The aim of this study is to apply the concept of social norm dynamics to explain how corporate governance soft law is enforced.

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3510

Abstract

Purpose

The aim of this study is to apply the concept of social norm dynamics to explain how corporate governance soft law is enforced.

Design/methodology/approach

Using data of German listed stock companies and of economic media coverage between 2001 and 2010, the authors observe the complex relationship between sanctions and behavior in the social context of corporate governance soft law.

Findings

The authors find the public discussion of normative demands related to corporate governance issues increases if firms do not comply with the German Corporate Governance Code. The authors show that groups of actors, such as DAX companies, represent the addressees of normative demands, i.e. targets of expectations about what is appropriate and what is not. The authors also find that normative demands tend to be personalized, as public discussion is greater when initiated by a specific individual or firm. Finally, the authors demonstrate that social control in terms of public sanctioning positively influences a firm’s compliance with the soft law whereby negative statements (disapproval) outweigh the effects of positive statements (approval).

Originality/value

We corroborate the social character of normative demands in the context of corporate governance soft law, and contribute to a better understanding of why soft law can work, despite it having no legally binding force. The results of our study suggest that sanction mechanisms in the context of social norms underpin the strength of soft law as an alternative to, or extension of, hard law.

Details

Corporate Governance, vol. 15 no. 1
Type: Research Article
ISSN: 1472-0701

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Article
Publication date: 10 October 2016

Kevin Jackson

The paper aims to extend deliberation on legal and political aspects of debate over globalisation versus cosmopolitanism into the field of jurisprudence – philosophy of law

Abstract

Purpose

The paper aims to extend deliberation on legal and political aspects of debate over globalisation versus cosmopolitanism into the field of jurisprudence – philosophy of law. It gives particular attention to questions of the legitimacy of international law and emerging forms of economic governance for business enterprises, soft law, rule of law, accountability and human rights.

Design/methodology/approach

In terms of research method, the paper proceeds from normative, as opposed to empirical studies. The paper develops arguments connected with cosmopolitan jurisprudence, a value-based frame of reference for corporate social responsibility. In legal and moral philosophy, normative statements derive from arguments concerning what states of affairs ought to be, how they are to be valued, which things and actions are good or bad. Normative claims contrast with positive (descriptive or explanatory) claims with respect to types of theories, beliefs or propositions. Value is both independent of fact and, at the same time, of an objective nature.

Findings

A cosmopolitan jurisprudence frame of reference for economic governance treats human communities as interdependent and takes seriously the human rights obligations and ethical and legal responsibilities of international business enterprises presupposed by international rule of law. In contrast to globalisation jurisprudence, the cosmopolitan philosophy of international law seeks justificatory ground, not only exclusively for traditional forms of centralised governmental authority but also for decentralised, polycentric, private and hybrid public–private forms of authority.

Research limitations/implications

The paper demonstrates the insufficiency of just describing, as political science and economics does, the emergence of new arrangements for global economic governance. As well, it is insufficient for management theory to propose instrumental strategies for managing various stakeholder interests at play in emerging forms of governance. Efforts of empirical researchers in documenting, classifying and providing empirical analysis of power shifts do not provide moral justifications or groundings of legitimacy from human rights and rule of law. The paper shows how a cosmopolitan jurisprudence standpoint is a fertile theoretical source for addressing such justificatory issues.

Practical implications

In the context of a rapidly globalising economy, the justification of responsible business conduct across borders and cultures is more and more becoming a pressing practical concern. Increasingly, private actors are operating in authoritative positions, fulfilling governing functions once perceived to be the exclusive domain of nation-states.

Social implications

The paper suggests that more important than focusing exclusively on descriptive, coercive and instrumental features of law, and seeking some overarching sanctions system that would necessitate pledging allegiance to a global super-sovereign, is cultivating social awareness of the importance of non-instrumental internal dispositions of actors to respect the normative obligatory nature of norms. The intrinsic value of rule of law and human rights provides a vital intellectual pathway for surmounting legitimacy gaps in global economic governance.

Originality/value

The paper breaks new ground by developing a cosmopolitan jurisprudence as an alternative to globalisation jurisprudence. This new articulation of cosmopolitan jurisprudence serves to provide analysis of philosophical justifications for emerging soft law syndicates that purport to establish obligations for business enterprises and other participants towards soft law regimes touching upon sustainability and human rights responsibilities.

Details

Society and Business Review, vol. 11 no. 3
Type: Research Article
ISSN: 1746-5680

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Article
Publication date: 22 February 2011

Adefolake Adeyeye

The purpose of this paper is to examine in detail the positive and negative aspects of selected soft law initiatives and the relevance of hard laws in the pursuit of

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7157

Abstract

Purpose

The purpose of this paper is to examine in detail the positive and negative aspects of selected soft law initiatives and the relevance of hard laws in the pursuit of corporate social responsibility (CSR).

Design/methodology/approach

Soft law initiatives are categorized into company codes, industry‐initiated codes, and general codes in order to determine more accurately the effectiveness of the codes in enforcing CSR standards. A number of factors relevant in determining the effectiveness of such codes are identified and applied. Partnerships between soft law initiatives and hard laws are illustrated.

Findings

Soft law initiatives are necessary tools in CSR. However, transparency, implementation, monitoring and compliance mechanisms are core areas in which the effectiveness of the initiatives needs improvement. Categorizing the initiatives helps to identify specific areas needed for improving effectiveness.

Research limitations/implications

The initiatives examined are limited to those relevant for human rights, the environment and anti‐corruption. The paper selects a number of relevant initiatives and does not attempt to examine all initiatives in these sectors. The reference to hard laws focuses on anti‐bribery laws.

Practical implications

The paper provides useful information on improving the effectiveness of soft law initiatives, which are the current modes for enforcement of CSR; the relevance of hard laws in CSR; and the role of NGOs in ensuring CSR.

Originality/value

The paper identifies the evolution of universal standards in CSR and calls for a universal approach which aims to address the need for adequate and effective enforcement.

Details

Corporate Governance: The international journal of business in society, vol. 11 no. 1
Type: Research Article
ISSN: 1472-0701

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Article
Publication date: 8 April 2014

Rémi Bazillier and Julien Vauday

This paper aims to provide a theoretical approach of Corporate Social Responsibility (CSR) in order to assess whether CSR will develop as a concept pushing efficiently for

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5807

Abstract

Purpose

This paper aims to provide a theoretical approach of Corporate Social Responsibility (CSR) in order to assess whether CSR will develop as a concept pushing efficiently for more de facto social responsibility or will become a pure marketing artefact. The trade-off between the development of CSR behaviour and lobbying over regulations is a key element that will influence the evolution of CSR. The result is that if the world consolidates or if it tends towards multilateralism to a large extent, then CSR is less likely to have an efficient impact.

Design/methodology/approach

Theoretical approach based on three fields: credence goods, greenwashing and political economy.

Findings

The coordination is harder for lobbies in the more multilateral scenario. The more politically powerful group would lose its influence on the decision body in the multipolar scenario. If lobbies keep influencing their state governments, the efficiency would also be reduced in the regionalization or multipolar scenarios. The easiness of the greenwashing strategy is also crucial in order to determine the possible evolution of the CSR as a real commitment that benefits environment and society.

Research limitations/implications

Countries may take advantage of CSR by offering an advantage to firms willing to develop CSR thanks to public regulations if greenwashing is easy and if the evolution of the world that prevails is similar to the tripolar or regionalization scenarios. This may also occur under the multipolar scenario but it would necessitate an effective international coordination.

Originality/value

This is the first work that brings together the strategic behaviour of firms with respect to Corporate Social Responsibility and political economy determinants. The predicted evolutions of these two features according to the degree of multilateralism as well as how they are intertwined are also novelties of this paper.

Details

Foresight, vol. 16 no. 2
Type: Research Article
ISSN: 1463-6689

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Article
Publication date: 22 April 2020

Guillaume Delalieux and Anne-Catherine Moquet

The purpose of this paper is to analyze the functioning of the French Law No 2017-399 relating to the duty of vigilance of parent companies and ordering companies, a law

Abstract

Purpose

The purpose of this paper is to analyze the functioning of the French Law No 2017-399 relating to the duty of vigilance of parent companies and ordering companies, a law defended by labor unions and non-governmental organizations (NGOs) as an answer to the ineffectiveness of corporate social responsibility (CSR) mechanisms of multi-national corporation.

Design/methodology/approach

The authors try to determine to what extent the new mechanisms brought by this law could improve or not the failure of existing CSR mechanisms.

Findings

The authors find out that internal weaknesses of the law, which is based on voluntary CSR instruments and without penalties, internal mechanisms of the French judicial system or external economic factors, might considerably limit the effectiveness of the law.

Originality/value

Even if for the first time, French judges might be asked to evaluate the reasonableness of the CSR practices of firms, one of the paradoxical effects of this law might be to institutionalize soft law mechanisms such as CSR certification or reporting, the proponents of this law precisely wanted to get rid of at the origin.

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Article
Publication date: 13 November 2017

Norman Mugarura

This paper aims to explore the role of public and private international law and how they are used differently in regulation of global markets. Data were sourced from both…

Abstract

Purpose

This paper aims to explore the role of public and private international law and how they are used differently in regulation of global markets. Data were sourced from both primary and secondary materials – journal papers, court decisions, textbooks and international legal instruments to gain insights into the role of law and the varied contexts in which it is used in regulation of markets. In an ordinary sense of the word, law sets operational limits to protect normative values and practices in a state – trade, peace, security, just to mention but a few. However, law cannot be confined to deterring undesired behaviours or to settling disputes, but more importantly, a good law should prevent disputes from happening. Law dictates the way of life of a society and its efficacy often depends on how well it is used to order the proper functioning of the system. International law is the set of rules which govern and foster effective relations of states. The paper explores the chasm between public and private international law, with a view to demonstrate how they are used differently in regulation of markets. Public and private international law encompass norms evolved by multilateral treaties, customs, judicial decisions, model laws and soft law instruments by different oversight bodies governing states and other stakeholders in their relationship with each other. These norms/rules create a platform for interstate cooperation on varied regulatory issues of shared interests. While treaties create a uniform framework of rules in all signatory states, their implementation often depends on individual states willingness to transpose them into national law. Owing to the inherent challenges of public international law (interstate practice), it has become imperative for markets to use rules of private international law. While public regulates the relationship of states and their emanation, private international law helps to bridge gaps in the mainstream international legal systems of states and in so doing enhances their co-existence on overlapping regulatory issues. The engendered trans-national norms will over time generate a positive impact on local sustainability and co-existence of different regulatory domains.

Design/methodology/approach

This paper uses cases studies and experiences of countries to demonstrate the complimentary relationship of public and private international law and how they work in tandem in international legal practice. The paper has also used the varied experiences of states to demonstrate how public and private international law interact in regulation of global markets. Data were sourced from both primary and secondary sources – journal papers, court decisions, textbooks and international legal instruments – to gain insights into the law and the varied contexts in regulation of markets. The case law and experience of states alluded to undertaking this research reflect the complimentary relationship of states for markets to operate effectively.

Findings

The findings of the paper comport with the hypothesis that markets cannot effectively work unless they are pursued within the framework of rules of public and private international law. The paper has alluded to the experience in national jurisdictions and global to highlight the chasm between different regulatory domains for markets to operate effectively. The paper articulates important practical issues relating to public and private international law in regulations of markets.

Research limitations/implications

The practical implication of the paper is that it underscores significant legal issues relating to regulation of markets drawing examples within national jurisdictions and globally.

Social implications

The paper has social implications because markets affect people, jobs and social life in varied ways. It addresses pertinent issues related to the complementarity of public and private international law and how they are manifested in national jurisdictions.

Originality/value

The paper is original because it nuances the interrelationship of public and private international law, teasing out their interaction in regulation of global markets in a distinctive way.

Details

International Journal of Law and Management, vol. 59 no. 6
Type: Research Article
ISSN: 1754-243X

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Article
Publication date: 5 July 2013

Norman Mugarura

The purpose of the paper was to examine the challenges inherent in harnessing the UN and other AML counter‐measures, paying particular attention to the United Nations…

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1025

Abstract

Purpose

The purpose of the paper was to examine the challenges inherent in harnessing the UN and other AML counter‐measures, paying particular attention to the United Nations Resolutions on countering financing of terrorism and why the UN Security Resolutions have not been easy to invoke. As regards other AML counter‐measures, the paper examined the legal status of soft law instruments, articulating the possible reasons why they are easy to implement.

Design/methodology/approach

The paper was written by the analysis of UN and other AML counter‐measures – which were evaluated in the gaze of how they have been implemented across states. While states are under an obligation to implement UN AML counter‐measures such as international treaties and soft law instruments, private banks as non‐state actors have exploited some loopholes in the law to flaunt them. This has undermined the efficacy of global AML counter‐measures. Many banks have been fined for violating UN sanctions on countries like Iran and Sudan. These examples were utilized in appraising the current UN and other AML counter‐measures across states.

Findings

The findings of the paper were compelling in demonstrating that global anti‐money laundering laws are often emasculated by the fact that they are implemented in the realm of international law. International law manifests itself within independent member states' vested strategic self‐interests. In the event of conflicts, national self‐interests will prevail. But again, money laundering is an opportunistic crime because it generates both synergies and externalities and the response of individual states often depends on how it is affected by it. It is wrong to assume as doing things in the realm of international law is not as easy as it is presumed to be.

Research limitations/implications

It would have been better to carry out interviews so as to corroborate secondary data sources used in writing this paper. But due to some constraints, this option was not possible. It would also have been better to undertake the analysis of data based on a large sample of countries rather than cherry picking. While implementing AML counter‐measures in the realm of international law is necessary to foster international co‐operation, there are still some loopholes that need to be paid more attention.

Originality/value

The paper was written, analysed and evaluated based on the most recent literature on implementation of UN and other AML counter‐measures across countries. It also utilized the recent cases involving violations of UN AML counter‐measures by banks on sanctioned countries such as Iran and Sudan.

Details

Journal of Money Laundering Control, vol. 16 no. 3
Type: Research Article
ISSN: 1368-5201

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