Edited by Andrea K. Bjorklund and August Reinisch
Chapter 4: Assessing the Effectiveness of Soft Law Instruments in International Investment Law
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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