Cordero-Moss, Giuditta --- "Soft Law Codifications in the Area of Commercial Law" [2012] ELECD 634; in Bjorklund, K. Andrea; Reinisch, August (eds), "International Investment Law and Soft Law" (Edward Elgar Publishing, 2012)

Book Title: International Investment Law and Soft Law

Editor(s): Bjorklund, K. Andrea; Reinisch, August

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781003213

Section: Chapter 6

Section Title: Soft Law Codifications in the Area of Commercial Law

Author(s): Cordero-Moss, Giuditta

Number of pages: 39

Extract:

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
parties (or, at least, entities acting as private parties). It mainly addresses
...