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International Standards in Swiss Financial Market Law: A Brief Overview and Critical Assessment

Type of publication Peer-reviewed
Publikationsform Original article (peer-reviewed)
Publication date 2015
Project International Law and Domestic Law-Making Processes
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Original article (peer-reviewed)

Journal Jusletter
Page(s) 1
Title of proceedings Jusletter

Abstract

International standards have become an important element of today’s global financial market regulation. Although formally they are non-legally binding soft laws, to a large degree they are binding de facto. For Switzerland, the de facto binding force of these international standards results in important consequences: first in many cases it practically limits parliament’s scope of decision-making to the question of whether to accept and follow international standards, or to get over with a limited access to international financial markets. Second, among other factors, due to this reduced scope of decision-making, to a substantial material degree the implementation of international standards in Swiss financial market regulation is directly or indirectly delegated to the Federal Council and the Swiss Financial Market Supervisory Authority (FINMA). As a result, the regulatory powers shift from the Legislative to the Executive and the Administration. Third, for the implementation of international standards in Swiss law, the method of referring to international standards is often used. This method might be practical, but it involves several legal issues. Fourth, both the shift of regulatory powers and the legal concerns that arise in connection with the method of referring to external (private) rules demand for an effective judicial protection. With the Swiss Federal Administrative Court the latter requirement is given in principle, but limited in practice. This paper discusses these issues and proposes suggestions for improvement. The latter involve concepts to enhance the legitimacy of international standards, the precise declaration of relevant international standards in national legal enactments, the creation of a «FINMA regulatory board» and the extension of judicial protection in financial market law.
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