Peter Nobel, Was heisst „Internationale Standards“?, SZW 2015, p. 556-561.
In this essay, Prof. Dr. Peter Nobel examines the fundaments of standards and their main fields of application, as well as their implementation into positive national law. He also investigates issues of jurisprudential reception, and he concludes by addressing the meaning of standards and providing an outlook for their future development.
With regard to the fundaments of standards, Prof. Nobel delves into their essence whilst also exploring their etymology. With the increasing globalization in financial markets, standards have gained importance. It is noted early on that standards are of an advisory nature only and qualify as soft law.
Thereafter, Prof. Nobel discusses the main fields of application of standards and observes how these are particularly significant in corporate law, mostly in financial accounting (that is with respect to, inter alia, IFRS, IASC, IASB, US GAAP or GAAP FER). Equally important in corporate law are the OECD’s Principles of Corporate Governance, which aim at improving the legal and institutional framework of corporate management and corporate supervision. Since standards play an important role in financial markets law as well, a great number of international standards exist. The Financial Stability Board (FSB) is entrusted with the classification and systematization of standards.
The author enumerates several standards that have been taken over by national accounting law, and he draws attention to the references in existing financial market law. The new Swiss financial markets legislation, consisting of the Financial Market Infrastructure Act (FMIA), the Financial Institutions Act (FinIA) and the Federal Financial Services Act (FinSA) will mark the peak of the implementation of standards into positive national law.
It is contended that, as a general rule, the necessity for a standard arises when there are no binding rules in place in a specific field or, if such rules are in place, they are worded in such general terms that they need concretion. Thus, international standards are often a form of pre-state law, which obtains a binding character through a process of transformation into a national or international public law norm.
The democratic legitimation of standards is criticized by the author, since the latter are triggered not only by market related, but also by power-political factors. Whoever doesn’t comply with such standards incurs the risk of being discriminated against. Additionally, there is no centralized authority responsible for the implementation of standards.
Prof. Nobel welcomes standards, although he is well aware of the fact that they raise considerable concerns in the law. He is of the opinion that in a world of international standards, the unilateral initiatives of national regulators would be largely played off.
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