Soft Law as Governing Law

44 Pages Posted: 28 Dec 2018 Last revised: 18 May 2020

Date Written: January 29, 2019

Abstract

International business transactions increasingly are being conducted under “soft law”—a term referring to non-state rules that may be aspirational or reflect best practices but are not yet legally enforceable. In part, this shift reflects a decline in cross-border treaty-making, which needs widespread consensus and is subject to lengthy negotiations. Soft law’s lack of enforceability, however, is creating uncertainty and undermining predictability. To increase predictability, this Article argues for an innovative use of soft law: as a set of rules to choose as the governing “law” of business contracts. This use of soft law would be transformational, making the soft law enforceable against the contracting parties and providing a flexible and practical alternative to treaty-making. The Article analyzes whether parties should have the right to choose soft law as governing law, and also compares the alternative of incorporating soft law only by reference.

JEL Classification: K12, K22

Suggested Citation

Schwarcz, Steven L., Soft Law as Governing Law (January 29, 2019). Duke Law School Public Law & Legal Theory Series Paper No. 2019-8. Available at SSRN: https://ssrn.com/abstract=3307418 or http://dx.doi.org/10.2139/ssrn.3307418

Steven L. Schwarcz (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7060 (Phone)
919-613-7231 (Fax)

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