Теорія і практика правознавства (Mar 2016)
International banking law: public or private?
Abstract
The article is focused on the legal analysis of the nature of the international banking law. Nowadays the existence of international finance, and within it, the international banking system can be stated. Having their own subjects, the sources of legal regulation, and principles of interaction in the international arena, and institutions of accountability and supervision, the international banking law forms a homogeneous system of legal norms grouped within the structural units of the law system – "international banking law"; it claims the status of an independent branch of international law. Nowadays the first authors’ concepts of international banking law have formed in the doctrine of international law. They are: a) the integrated field of international private law; b) the specific legal facility of regulation, the subject of which is banking complicated by a foreign element; c) the regulatory unit governing the activities of international banking institutions and consisting of transnational law rules governing international banking in the space between national and international law; it may be a combination of transnational and international private law; g) the interbank relations in the international financial system are governed by norms of domestic and international law. The scientific debate concerning the legal nature of banking and its place in the legal system, from our point of view, serves as a proof to creation of an independent branch of law within the framework of the international economic law. The international banking system is governed by its own legal system – international banking law which has its own subject of regulation, participants and sources. The international banking law is either private, and in this case it is part of the national legal system, or it is part of public international law when its norms are created by subjects of international law. The participants of the legal relations always belong to one and the same legal system (international or national law), there is no "doubling" of legal structures within the framework of international banking law. The subjects of public international law regulate relations in international banking activities, determine basic rules, principles, standards, and requirements, conduct international banking operations involving the development of broad unification of the rules of international banking law by signing international treaties of universal and regional nature. These rules, principles, and standards are implemented according to the domestic legal order by the states which present parties in international agreements
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