International Investment Law and Soft Law

International Investment Law and Soft Law

Edited by Andrea K. Bjorklund and August Reinisch

This important book examines the development of soft law instruments in international investment law and the feasibility of a ‘codification’ of the present state of this field of international economic law.

Chapter 4: Assessing the Effectiveness of Soft Law Instruments in International Investment Law

Andrea K. Bjorklund

Subjects: law - academic, international economic law, trade law, international investment law

Extract

4. Assessing the effectiveness of soft law instruments in international investment law Andrea K. Bjorklund* The term ‘soft law’ entered the international lexicon in the 1970s as a descriptive and differentiating phrase:1 soft law was anything that was not, in fact, hard law promulgated by a governmental body authorized to enact it, but that nonetheless was designed to affect, or actually did affect, behavior and that might in time solidify into hard law or otherwise affect the development of hard law.2 Though the phraseology was perhaps new, the existence of non-binding written instruments designed to influence the development of the law or designed themselves to become law at an ´ I thank Lee Ann Bambach and Sean Duggan for helpful suggestions. Lord McNair is usually credited with the first use of the expression. Dinah Shelton, ‘Introduction: Law, Non-Law and the Problem of ‘‘Soft Law’’’ in Dinah Shelton (ed), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (OUP 2000) 1, 22. See also Jan Klabbers, ‘Reflections on Soft International Law in a Privatized World’ (2005) XVI Finnish YB Int’l L 313, 314 (noting that prior to the introduction of ‘soft’ law one did not need to describe law as ‘hard’.). 2 There are numerous definitions of soft law. Francis Snyder describes soft law as ‘rules of conduct which, in principle, have no legally binding force but which nevertheless may have practical effects’. Francis Snyder, ‘Soft Law and...

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