Matthias Goldmann

The Exercise of Public Authority by International Institutions

Concept.- Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities.- From Public International Law to International Public Law: A Comment on the #x201C Public Authority#x201D of International Institutions and the #x201C Publicness#x201D of their Law.- To Tame and to Frame.- International Bureaucracies from a Political Science Perspective #x2013 Agency, Authority and International Institutional Law.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivduals - Decisions.- The UN Security Council Al-Qaida and Taliban Sanctions Committee: Emerging Principles of International Institutional Law for the Protection of Individuals?.- WIPO#x2019 s International Registration of Trademarks: An International Administrative Act Subject to Examination by the Designated Contracting Parties.- International Institutions and Individualized Decision-Making: An Example of UNHCR#x2019 s Refugee Status Determination.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivduals - Recommendations.- Effective Governance through Decentralized Soft Implementation: The OECD Guidelines for Multinational Enterprises.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivduals - Information.- The Administration of Information in International Administrative Law #x2013 The Example of Interpol.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivdual States - Decisions.- Flexibility and Legitimacy #x2014 The Emissions Trading System under the Kyoto Protocol.- The UNESCO Regime for the Protection of World Heritage as Prototype of an Autonomy-Gaining International Institution.- The UNESCO Regime for the Protection of World Heritage.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivdual States - Recommendations.- Regulating Minority Issues through Standard-Setting and Mediation: The Case of the High Commissioner on National Minorities.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivdual States - Information.- Governance through Promotion and Persuasion: The 1998 ILO Declaration on Fundamental Principles and Rights at Work.- The WTO Committee on Trade in Financial Services: The Exercise of Public Authority within an Informational Forum.- The Exercise of Public Authority through General Instruments: Secondary Law.- The Administration of the Vocabulary of International Trade: The Adaptation of WTO Schedules to Changes in the Harmonized System.- Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) #x2013 Conservation Efforts Undermine the Legality Principle.- The Exercise of Public Authority through General Instruments: International Public Standards.- Legal Challenges of Non-binding Instruments: The Case of the FAO Code of Conduct for Responsible Fisheries.- Why Would International Administrative Activity Be Any Less Legitimate? #x2014 A Study of the Codex Alimentarius Commission.- The Exercise of Public Authority through General Instruments: Public Authority through Private Law Instruments.- ICANN #x2013 Governance by Technical Necessity.- International Administration of Holocaust Compensation: The International Commission on Holocaust Era Insurance Claims (ICHEIC).- Cross-Cutting Analyses.- Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority.- Goldmann Variations.- General Principles of International Public Authority: Sketching a Research Field.- Is There a Global Administrative Law?.- Procedures of Decision-Making and the Role of Law in International Organizations.- The Contributions by Jochen von Bernstorff and by Maja Smrkolj.- The Enforcement Authority of International Institutions.- The Enforcement Authority of International Institutions #x2013 Some Remarks and Suggestions for Further Analysis.- Holding International Institutions Accountable: The Complementary Role of Non-Judicial Oversight Mechanisms and Judicial Review.- International Composite Administration: Conceptualizing Multi-Level and Network Aspects in the Exercise of International Public Authority.- International Composite Administration.- Legitimacy of International Law and the Exercise of Administrative Functions: The Example of the International Seabed Authority, the International Maritime Organization (IMO) and International Fisheries Organizations.- Context.- The Internationalization of Administrative Relations as a Challenge for Administrative Law Scholarship.- Procedural Due Process of Law Beyond the State.

Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority

This article suggests a tentative model for the legal conceptualization of the great variety of instruments by which international institutions exercise public authority, brought to light by the thematic studies of this project. If one were to display this variety of instruments on a scale that ranges from binding international law to non-legal instruments, hardly any thinkable step on this scale would remain empty. Situated at the top end of the scale one would find binding instruments such as international treaties, periodic treaty amendments, decisions on individual cases with binding effect or decisions having the potential to become binding by way of domestic recognition. While these instruments clearly have external legal effects, other instruments seem to be purely internal rules of procedure, although they have in fact considerable repercussions for national administrations. Next come various types of soft, i.e. non-binding legal instruments. Some of these instruments operate in the shadow of binding instruments. Others are kept in purely soft form, like product standards or codes of conduct, but also decisions concerning individuals. In the lower part of the scale one would find instruments containing non-binding rules that are foremost aimed at facilitating consultation, or soft private law instruments. At the bottom end one would discover non-legal instruments that are devoid of any deontic elements, but nevertheless have a high legal or political impact on the affected policy area. Examples of this class of instruments include factual assessment reports, indicators, reports on implementation and compliance, and databases.

Sovereign Debt Restructurings as Exercises of International Public Authority: Towards a Decentralized Sovereign Insolvency Law

This paper argues that sovereign debt restructurings as agreed between defaulting states and their multilateral, bilateral, or private creditors constitute exercises of international public authority. Their authoritative character results from their effects on the citizens of the defaulting state, especially through adjustment programs. They also affect taxpayers in lending states as well as shareholders of commercial creditors. Their public and international character derives from their legal basis in hard or soft public international law.As a consequence of their qualification as exercises of international public authority, sovereign debt restructurings need to be framed by public law in order to ensure their legitimacy. This paper is based on a discursive approach to legitimacy and shows how legal scholarship might promote the development of such a public law framework.The paper then proposes a set of legal principles for sovereign debt restructurings. Some of them might already exist de lege lata, while others should be understood as proposals de lege ferenda. Legal scholarship is especially useful for developing procedural requirements, while substantive issues require a political decision, with the exception of the need to respect fundamental human rights. Most importantly, however, the qualification of sovereign debt restructurings as exercises of public authority requires domestic and international courts and tribunals to defer to them and to stay proceedings as long as such restructurings are being negotiated or implemented. Domestic and international courts and tribunals might thereby control the legitimacy of these exercises of public authority.

A Discourse Theoretical Approach to Sovereign Debt Restructuring: Towards a Democratic Financial Order

This chapter studies the role of law for aligning democracy with a market-based financial order. Jurgen Habermas’s discourse theoretical understanding of the role of law in the welfare state establishes a structure for exploring this issue. According to this approach, law needs to be enforceable, law-making and law-application need to be institutionally separated, and public law needs to be distinguishable from private law. The contemporary practice of sovereign debt restructuring reveals some empirical and normative challenges to this understanding of the law. Based on these findings, this chapter proposes several conceptual and institutional improvements that might lead to a more stable relationship between democracy and financial order. In particular, we argue that sovereign debt restructuring should tap the legitimating potential of existing transnational discourses that are characterized by cross-border cleavages in public discourse.

The Great Recurrence - Karl Polanyi and the Crises of the European Union

In his seminal 1944 book “The Great Transformation�?, Polanyi describes the rise and fall of liberal capitalism during the long 19th century. Many have realized that Polanyi has a lot to tell about the European Union in the aftermath of the financial crisis. The paper begins with an overview of Polanyi’s historiography of the failure of 19th century liberal capitalism and his account of the four elements that helped liberal capitalism thrive, while precipitating its collapse - the idea of the self-regulating market, the gold standard, international peace, and liberal constitutionalism. Thereafter, the paper describes the particular transformations that these four elements underwent in the course of European integration and after the financial crisis, with a particular focus on the case law of the Court of Justice. The paper argues that their current constellation has a destructive potential that exceeds the economic dimension of the Union and might pave the way for a much greater failure, one that might defeat Europe’s greatest success: the establishment of peace. Ultimately, the paper assesses current reform proposals in light of these insights and makes a number of proposals for re-embedding the economy in society.

United in diversity? The relationship between monetary policy and banking supervision in the banking union

This paper analyzes the relationship between monetary policy and financial stability in the Banking Union. There is no uniform global model regarding the relationship between monetary policy-making on the one hand, and prudential supervision on the other. Before the crisis, EU Member States followed different approaches, some of them uniting monetary and supervisory functions in one institution, others assigning them to different, neatly separated institutions. The financial crisis has underlined that monetary policy and prudential supervision deeply affect each other, especially in case of systemic events. Even in normal times, monetary and supervisory decisions might conflict with each other. After the crisis, some jurisdictions have moved towards a more holistic approach under which monetary policy takes supervisory considerations into account, while supervisory decisions pay due regard to monetary policy. The Banking Union puts prudential supervision in the hands of the European Central Bank (ECB), the institution responsible for monetary policy. Nevertheless, at its establishment there was the political understanding that the ECB should follow a policy of meticulous separation in the discharge of its different functions. This raises the question whether the ECB may pursue a holistic approach to monetary policy and supervisory decision-making, respectively. On the basis of a purposive reading of the monetary policy mandate and the SSM Regulation, the paper answers this question in the affirmative. Effective monetary policy (or supervision) requires financial stability (or smooth monetary policy transmission). Moreover, without a holistic approach, the SSM Regulation is more likely to provoke the adoption of mutually defeating decisions by the Governing Board. The reputation of the ECB would suffer considerably under such a situation - in a field where reputation is of paramount importance for effective policy. As any meticulous separation between monetary and supervisory functions turns out to be infeasible, the paper explores the reasons. Parting from Katharina Pistors legal theory of finance, which puts the emphasis on exogenous factors to explain the (non)enforcement of legal rules, the paper suggests a legal instability theorem which focuses on endogenous reasons, such as laws indeterminacy, contextuality, and responsiveness to democratic deliberation. This raises the question whether the holistic approach would be democratically legitimate under the current framework of the ESCB. The idea of technocratic legitimacy that exempts the ECB from representative structures is effectively called into question by the legal instability theorem. This does not imply that the independence of the ECB should be given up, as there are no viable alternatives to protect monetary policy against the time inconsistency problem. Rather, any solution might benefit from recognizing the ECB in its mixed technocratic and political shape as a centerpiece of European integration and improving its transparency, responsiveness, and representativeness without removing its technocratic character.

Public Law and Finance: A History of Misunderstandings and a Discourse Theoretical Proposal

This paper departs from the observation that many legal conflicts which emerged in the aftermath of the recent financial crisis are characterized by fault lines between the economic and the legal disciplines. These fault lines derive from two reasons which I describe as immanence and differentiation. Both are deeply rooted in the self-understanding of the economic and legal disciplines. In the economic literature, a mechanical view of the law prevails that has little to do with the self-understanding prevalent in the legal discipline. The legal discipline, in turn, is just as much to be blamed of immanence. However, the rationality of the legal discipline has become blurred, and there is great uncertainty how to deal with the rationalities of neighboring disciplines. As the idea of democratic capitalism relies on an autonomous law, this problem is of utmost urgency. The paper develops a discourse theoretical proposal that sees the rationality (or autonomy) of the law to reside in a specific kind of discourse. This understanding allows some hints as to how to integrate economic knowledge in legal decision-making. The paper then applies this understanding to the examples. This approach has certain repercussions for recent regulatory activities.

A Meta-Theory of the Sources of International Law: Exploring the Hermeneutics, Authority and Publicness of International Law

The purpose of this chapter is to identify common assumptions characterizing the sources doctrine in international law. Those are the autonomy of international law from politics, morality, economics, etc.; the focus on binding, enforceable rules; and state consent as the source of legitimacy of international law. Today, each of these assumptions is challenged. To address these challenges, the chapter proposes to further develop the sources theory and elaborate the concept of principles of international law (as they ensure international law’s autonomy), a concept of authority (as non-binding acts may have similar effects as binding law), and to distinguish international legal rules (or authoritative acts) which require democratic legitimacy from those which do not.

International investment law and financial regulation: Towards a deliberative approach

The paper analyzes conflicts between investment law and other fields of financial regulation, namely sovereign debt, bank regulation, and monetary law. While international (and domestic) economic law had long been based on the theory of functional separation according to which each segment of economic law and policy should pursue its objectives irrespective of the others, the financial crisis has cast serious doubts on this approach as it revealed their interdependence. Applying a deliberative approach to interpretation, the existing legal framework is capable of taking such interdependence into account. The paper uses holdout litigation in case of sovereign debt restructurings, bail-ins in case of bank insolvencies, and unconventional monetary policies as examples to demonstrate the deliberative approach.

Teil 1: Alternative Instrumente – Diskrepanz zwischen gesellschaftlicher Bedeutung und juristischem Diskurs

Dieser Teil erarbeitet die Diskrepanz zwischen der gesellschaftlichen Bedeutung alternativer Instrumente und der Art und Weise ihrer Rezeption im juristischen Diskurs. Eine historische Analyse zeigt, dass alternative Instrumente sich parallel zum verbindlichen Volkerrecht entwickelt haben. Ihre Zahl sowie ihre Formenvielfalt erhohten sich parallel zu jeder neuen Entwicklungsstufe des Volkerrechts (A).