The paper examines the financial markets in order to demonstrate that the soft regulation if, on the one hand, satisfies general goals, on the other hand, it is a tool only apparently soft. The soft regulation could be defined as “crypto-hard”. It contains very tight restrictions against regulated parties, with the aggravating circumstance of the impossibility of applying the traditional means of judicial protection. Since the flexible regulation evokes a phenomenon with undefined contours, the first part of this paper primarily aims to differentiate soft regulation in financial markets from other recent regulatory events sui generis, notably by distinguishing between soft regulation and self-regulation. The second part is rather specifically dedicated to the analysis of soft regulation in financial markets and the special bond existing between soft law and soft regulation; the investigation continues considering the relations of complementarity between soft and hard regulation, which leads to a contamination between the two models of regulation. Finally, the paper examines the nature and constraints deriving from flexible regulation provisions in financial markets. In this investigation it must be distinguished whether recipients of the act of soft regulation are the same acting regulators or other regulators, or, instead, the regulated parties. In the conclusive remarks, paradoxically it emerges the soft regulation does not deal with the problem of its effectiveness –despite the absence if sanctions for its violation –, but rather evokes justiciability issues, in terms of judicial protection and remedies.

Self regulation, soft regulation e hard regulation nei mercati finanziari / M. Ramajoli. - In: RIVISTA DELLA REGOLAZIONE DEI MERCATI. - ISSN 2284-2934. - 2016:2(2016), pp. 53-71.

Self regulation, soft regulation e hard regulation nei mercati finanziari

M. Ramajoli
2016

Abstract

The paper examines the financial markets in order to demonstrate that the soft regulation if, on the one hand, satisfies general goals, on the other hand, it is a tool only apparently soft. The soft regulation could be defined as “crypto-hard”. It contains very tight restrictions against regulated parties, with the aggravating circumstance of the impossibility of applying the traditional means of judicial protection. Since the flexible regulation evokes a phenomenon with undefined contours, the first part of this paper primarily aims to differentiate soft regulation in financial markets from other recent regulatory events sui generis, notably by distinguishing between soft regulation and self-regulation. The second part is rather specifically dedicated to the analysis of soft regulation in financial markets and the special bond existing between soft law and soft regulation; the investigation continues considering the relations of complementarity between soft and hard regulation, which leads to a contamination between the two models of regulation. Finally, the paper examines the nature and constraints deriving from flexible regulation provisions in financial markets. In this investigation it must be distinguished whether recipients of the act of soft regulation are the same acting regulators or other regulators, or, instead, the regulated parties. In the conclusive remarks, paradoxically it emerges the soft regulation does not deal with the problem of its effectiveness –despite the absence if sanctions for its violation –, but rather evokes justiciability issues, in terms of judicial protection and remedies.
soft regulation; soft law; self regulation
Settore IUS/10 - Diritto Amministrativo
http://www.rivistadellaregolazionedeimercati.it/index.php/53-contenuti/2016/fascicolo-2-2016/saggi/215-margherita-ramajoli-self-regulation-soft-regulation-e-hard-regulation-nei-mercati-finanziari
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/2434/723917
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