The Dialogic Aspect of Soft Law in International Insolvency: Discord, Digression, and Development

26 Pages Posted: 11 Oct 2019

Date Written: October 2019

Abstract

Soft law is on the ascent in international insolvency, seeming now to occupy a preferred status over boring old conventions. An arguably constitutive aspect of soft law, which some contend provides a normative justification for international law generally, is its "dialogic" nature, by which I mean its intentional exposure to recursive norm contestation and iterative development: soft law starts a dialogue. The product of that dialogue, on a teleological view, may well be hard law. In the international insolvency realm, that pathway is through (soft) model domestic legislation that aspires toward enactment as municipal law.

The happy story is that dialogue within an epistemic community can lead to salutary development. But there are also the pathologies of dialogue: discord and digression. This article discusses all three in international insolvency, with special focus on the shiniest new thing to come out of the bankruptcy technocracy: The United Nations Commission on International Trade Law (UNCITRAL) Model Law on Recognition of Insolvency-Related Judgments. On balance, the happy story can still stand, but it needs to be candidly modified to recognize some of its warts if we are to rely upon it to guide future reform.

Keywords: Insolvency, Bankruptcy, Cross-Border Insolvency, Cross-Border Bankruptcy, International Bankruptcy, International Insolvency, International Law, Soft Law, Private International Law, Recognition of Judgements, UNCITRAL

JEL Classification: K22, K33

Suggested Citation

Pottow, John A. E., The Dialogic Aspect of Soft Law in International Insolvency: Discord, Digression, and Development (October 2019). Michigan Journal of International Law, Vol. 40, No. 3, 2019; U of Michigan Law & Econ Research Paper No. 19-012; U of Michigan Public Law Research Paper No. 649. Available at SSRN: https://ssrn.com/abstract=3465722

John A. E. Pottow (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
734-647-3736 (Phone)

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