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 6: Soft Law Codifications in the Area of Commercial Law

Giuditta Cordero-Moss

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


6. Soft law codifications in the area of commercial law Giuditta Cordero-Moss In the process of evaluating whether, to what extent and in what form investment law may usefully be the subject of soft law codifications, it may be relevant to look to the experience in soft codification in the field of commercial contracts. After a short introduction to the structural differences between contract law and investment law (section 1 below), this chapter will analyse the effectiveness of various soft codifications in the field of contract law mainly from the point of view of whether they achieve their intended purposes, which I have defined as ensuring predictability (section 2 below), and compatibility with enforceability (section 3 below). I will also consider whether soft codifications may be addressed to any user or need to be tailored to the intended user, and whether their effectiveness may be affected by the descriptive or prescriptive character of the soft rules or by the drafting process (section 4 below). At the end of each section I will present my considerations on the relevance that the experience in soft codification of contract rules may have to soft codification of investment law. 1. PARALLELS BETWEEN CONTRACT LAW AND INVESTMENT LAW? There are similarities but also structural differences between the regulation of the parties’ interests in a commercial setting and the regulation of foreign investment. Commercial law regulates obligations of private law as between private...

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