New regulatory forms and financial markets. A study of comparative law

The legal systems of today aredifferent than those that came into force 40 years ago. The assertion isapplicable particularly to the economic areas under that a kind of law, knownas regulatory systems.

Indeed, a simple look at thecontemporary law shows first; a rise in new entities which have the power ofcreation, the monitoring and the application of law and second; the existenceof adjustments in the design and implementation of the standards that govern anactivity, the development of soft law, self-regulation and standards, amongother examples. This phenomenon, named new forms of regulation, which a fewyears ago was strongly praised by a part of legal doctrine, is now beingquestioned.

Even if the regulation constitutes auniversal phenomenon, we decided to focus in the financial markets. This isbecause the economic sectors under the regulatory systems have a diversesituations in terms of action and their fundamentals that hinders acomprehensive analysis. In this sense, it has been said that the regulatorysystems rules legitimacy cannot be considered abstractly. This must be assessedby the relations between its standards and regulated objects. Financial marketsare, in this context, a privileged test case concerning the experimentation ofnew forms of regulation. In these markets we found the origins of the use ofsoft law, self-regulation and other new forms of regulation, and it isprecisely in the financial markets where that the disputes about the efficacyand the legitimacy arise about new forms of regulation.

Our study concerns the use of newforms of regulation within the framework of the financial markets in sixcountries: France, England, the United States and three Latin Americancountries: Mexico, Colombia and Chile. The reasons for this choice are as follows.Firstly, it seems valid to look at the legislation where the new forms ofregulation came from. The American model is needed, but also the English model,because it was, for a while, the more thorough example of economic liberalism,therefore a source of new forms of regulation. France is also an indispensablereference. Indeed, as we want to show it, France is the most perfect example ofthe quest for a culmination of logical regulation and systematization of regulatory law.