Edited by Andrea K. Bjorklund and August Reinisch
Chapter 6: Soft Law Codifications in the Area of Commercial 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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