Legitimacy of Soft Law in International Law

SCC Online Web Edition, © 2021 EBC Publishing Pvt. Ltd.
Page 1 Monday, November 01, 2021

Printed For: PRATAPSINH BHIMSEN SALUNKE, SCC Online MyLOFT Remote Access
SCC Online Web Edition: http://www.scconline.com
© 2021 EBC Publishing Pvt.Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
(2019) 3.1 IJLIA 29
The Legitimacy of Soft Law in International Disputes Settlement
THE LEGITIMACY OF SOFT LAW IN INTERNATIONAL DISPUTES SETTLEMENT

by
Urmil Shah1
ABSTRACT
This piece of work seeks to highlight the issues with regards to acceptance and
legitimacy of soft law instruments in the area of International Disputes Settlement
with a major emphasis on international arbitration where not enough clarity is laid
down in respect of the alleged legitimacy. The formation of soft law plays a centralized
role in further its development as legitimate source of resolving conflict and its several
aspects with regards to normativity, codification, harmonization, judicialization and
crystallization are further elucidated. The discussion delves into types and methods of
evolution of soft law to aid the legitimacy aspect of conflict management resolving
disputes in an “efficient” and “fair” manner making them as cornerstone to success of
international arbitration. The inherent and nascent facets of discretion, flexibility and
party autonomy helps in analyzing the impact of soft law instruments in 21st century
where the tide is slowing turning towards International Disputes Settlement as key
area of dispute resolution.
INTRODUCTION
A good settlement is better than a good lawsuit
- Abraham Lincoln
Conflict is one such phenomenon which has its roots dated since a long time. There
can be no culture or community where there is no conflict or difference
Page: 30
of opinions or for that matter, disagreement in the minds of people. This disagreement
doesn't only give rise to skepticism and eventually logical reasoning but also forms as
a base for evolution of the human society. This area of conflict has gradually seen a
rise in development of conflict management, which is in turn becoming a grassroots
area of research for many legal scholars. Alternative Dispute Resolution (ADR) is being
accepted as a valid legal field to resolve conflicts so that the burden of litigation
reduces and unsurprisingly ADR has proved immensely successful within the legal
framework of many jurisdictions.
ADR and conflict management are becoming a necessity before even going for
litigation and as a result there has been a drastic rise in the mechanisms of ADR from
mediations and arbitrations (Med-Arb) to several unusual methods like Ombudsman,
Private Judging and Mini-trials. Although the level of efficiency and popularity attained
by the conventional methods is tough to be replicated by these new methods, but
these unconventional methods are gradually being recognized as a forum for effective
dispute management. The need for Trade and Commerce has increased quite
drastically leading to emergence of several dispute settlement mechanisms at
international level to resolve conflicts arising between states and private parties. It is
because of disagreement and difference in minds that leads to conflicts and therefore
the development of efficient rules and laws for functioning of conflict resolution at
-----------------------------------------------------------------------------------------------------------------------------------------------------------
international stage becomes the need of the hour.

The complexity of these rules lies at the heart of the discussion because of gradual
and continuous evolution of varied set of procedures and rules for different
mechanisms. It is in this context that the debate with regards to legitimacy of soft law
in International Disputes Settlement (IDS) comes into the forte with a prime emphasis
on international arbitration. International
Page: 31
arbitration has been one such field that has developed exorbitantly in past two
decades and the increased transaction cost with regards to litigation2 further increases
the scope for international arbitration.
The immense success of international arbitration lies in its flexible system of

operations than other mechanism. However, it must be acknowledged that this form of
dispute settlement isn't free of flaws as it has also been a central ground of debates
for many research scholars in the past decades with regards to the excessive
autonomy to parties, concerns of impartiality of the arbitrators, lack of transparency
and the lack of a universal codified system of rules is the biggest issue. It is in
international arbitration that soft law is constituted of utmost importance if parties are
willing to be bound by it. However, it must be noted that if one of the parties is
reluctant to bind by soft law then it is criticized heavily with regards to its normativity
and noncodification, increasing “judicialization” of arbitration and its solidifying effect
in terms of harmonization. Thus, it is quintessential to understand the formation of
soft law in the field of international disputes settlement to further any discussion with
regards to its legitimacy and acceptance.
ELUCIDATION OF SOFT LAW
Soft Law refers to rules or quasi-legal instruments which generally do not have any
sort of binding effect on the courts and tribunals in international law.3 They are also
sometimes referred to as instruments whose binding force
Page: 32
is weaker in comparison to traditional law.4 Although there is no universally accepted

standard form for soft law but they can be in form of guide, notes, rules, codes,
protocols, techniques, guidelines, recommendations etc. These laws are very general
in nature and are not considered positive, therefore reducing the binding effect of
these rules.5 These soft laws although uncertain in nature have a great guiding effect
in field like international arbitration which is still improving. Unlike, national courts,
arbitral panels are most likely to use these soft law instruments to render a fair
decision and are willing to take them as legitimate sources of international arbitration.6
Soft laws with regards to international arbitration can narrowly be classified as

substantive and procedural soft laws. Also known as Para-regulatory texts (PRT's),
procedural soft law mainly acts as assistants and guides for arbitration practitioners in
the field of international arbitration where the laws are still deficient in practice and
are usually codified when compared to substantial soft laws.7 Some examples of
procedural soft law in international arbitration are quasi-legal instruments developed
by the International Bar Association (IBA) including the IBA Guidelines on Conflicts of
Interest in International Commercial Arbitration and IBA Rules on the Taking of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Evidence in International Commercial Arbitration. The professional arbitration rules

including institutional and ad-hoc rules like ICC Arbitration Rules and UNCITRAL
Arbitration Rules also form a base for procedural soft law. The UNCITRAL Model Law on
International Commercial Arbitration
Page: 33
developed by the General Assembly of the UN in 1966 for unification of international

trade law also constitutes a part of procedural soft law. The most common types of
substantive soft laws include the Lando Principles on European Contract Law (PECL),
trade customs (also known as lex mercatoria), the OCED Principles of Corporate
Governance and the UNIDROIT Principles of International Commercial Contracts. It in
this context that we understand that procedural soft law is more important than
substantive soft law in international arbitration mainly because of its “peculiarity” and
the fact that they are codified in nature or in words of Kauffman-Kohler, “normative”.
However, it is not that substantive soft laws are not applied in international arbitration
as UNIDROIT Principles are one of the most relied upon source when it boils down to
the substance of the dispute.8 It is not an unheard fact that over the last decade
various guidelines and procedural rules have become a part of arbitration at both
domestic and international level. However, it must be understood that these rules and
guidelines could at best codify the internationally accepted practice and try to offer a
certain degree of consistency and predictability in the arbitration practice.9 As for the
nature of soft law, it must be ascertained that such norms are soft in nature as they
are too unclear to be applied to specific circumstances and are general in its
application leading to lack of public force.10 Further as soft law is primarily made by
non-state parties which are
Page: 34
outside the scope of sovereignty of state, such norms are created independently of the
traditional sources of law and are merely considered academic pieces of works. Soft
law has started to become an increasingly important and critical area in various forms
of arbitration right from commercial to investment and is growing as body of soft rules
recognized as “soft codes”11 . One of the advantages of soft law is that it is not subject
to prolonged process of ratification and it saves several years of enforcement.12 As
party autonomy, voluntary acceptance and flexibility are increasingly becoming raison
d'etre in international arbitration13 , the acceptance of such soft norms are becoming
the need of the hour as arbitration professionals as well as national and domestic
courts are being guided by these “codes” for a fair and efficient dispute resolution.
THE “SOFTNESS” OF LAW

The “softness” of Law has always been an area of debate in the contemporary law-
making process and in a social context it is described nothing more than a
troublemaker because of its ficklable nature.14 To understand the ficklable aspect of
soft law it is quintessential to apprehend the formation and existence of soft law.
There are generally three ways in which soft law comes into application in international
arbitration:
1. Through codification and legislation: Statutory legislation is the most
primary way of formation of any law where the bill passed in the Parliament of a
domestic country becomes an act of law upon the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Page: 35
approval of authorities. One of the most common examples of soft law legislation in
international arbitration is the UNCITRAL Model Law International Commercial
Arbitration which has been adopted by 80 States in total of 111 jurisdictions.
2. Through party autonomy/agreement: The contract plays a key role in

application of soft law as party autonomy is raison d'etre in international
arbitration. Where the contract and will of the parties expressly provides for
application of certain soft law then it becomes contractual in nature eventually
converting into hard law. The customary example for such type of soft law is
application of IBA Guidelines in the arbitration where the parties are willing to
consensually bind by such laws.
3. Through arbitration practice: One of the most complex formation and
application of soft law in the interaction of these laws with the arbitral practice
where such application is not expressly provided for in the contract and depends
upon the discretion of the tribunal. This type of application is where there
emerges a conflict between institutional and ad-hoc types of arbitration.
Institutional form of arbitration usually provides for the broadest manner of
discretion to the arbitral tribunal in adjudicating the matter. For e.g. Article 14.5
of the London Court of International Arbitration (LCIA) Rules, 2014 states:
“The Arbitral Tribunal shall have the widest discretion to discharge the
general duties conferred upon them by the above said articles”15
Whereas, Article 17.1 of UNCITRAL Arbitration Rules, 2010 provides for limited
discretion in comparison to institutional arbitration rules:
Page: 36
“Subject to the Rules, the arbitral tribunal may conduct the arbitration in a
fashion as it finds suitable, provided the parties are treated with equality and is
given a reasonable opportunity of presenting its case.”16
The modern reasoning for the application of soft law is for guidance and
interpretation of ambiguous rules of arbitration. The application of IBA Guidelines on
Conflicts of Interest in International Arbitration contains provision of “Red”, “Orange”
and “Green” lists which provides for stipulated conditions and circumstances with
regards to conflict of interest concerning an arbitrator's impartiality and independence.
Therefore, it can reasonably be concluded that although soft law doesn't begin as
positive law yet becomes positive law in due course of time with their application in
international arbitration. There is often a dispute between soft laws themselves in
matters concerning impartiality and independence an arbitrator providing for a
contradictory ground for acceptance of rules and therefore lacking force of law. The
IBA Guidelines as explained earlier provides for several lists where there are only
certain circumstances where disclosure of impartiality is required whereas the
International Chamber of Commerce (ICC) Rules require complete disclosure of all
circumstances leading to impartiality and independent of the arbitrator.17
As international arbitration dwells in an area of ethical no-man's land18 , it is
necessary to understand the legitimacy of these soft law instruments in the modern-
day dispute resolution where fairness and efficiency is the cornerstone for success of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
these methods of conflict management.
Page: 37
THE “LEGIT” DISCUSSION

“Legitimacy” is one such term that has multiple aspects when it comes to
international arbitration and its peculiarity in popular culture is understood as the
acceptance of the law as authority.19 The legitimacy aspect of soft law has led to much
of its criticism and the most prominent of them being that its creation delineates
objectives to be achieved in future than strict duty-bound obligations to be
performed.20 Critiques also argue that the acceptance of soft laws suffers from
democratic legitimacy under the heading of social reflexivity.21 It is also in this context
it has been said that the law is used as a medium by arbitration to maintain and
prosper its control over international arbitration.22 The legitimacy discussion includes
several facets like the noncodification of the law, its normativity and over-
judicialization in the light of harmonization and the nascent crystallization of soft law.
In recent times, it is seen that the increased involvement and influence of
governmental and sub-governmental bodies have led to decrease in the application of
that soft law instrument.23 For e.g. the success of UNIDROIT Principles has primarily
been because of their non-binding and non-influential nature and as such the
acceptance of such laws lies not in the chatter but in the peaceful usage. The major
problem associated with legitimacy is that more often than not soft laws are produced
on their own without any planned objective to create one. As these laws don't have the
force of law, their codification becomes irrelevant and a part of the normed
Page: 38
procedure or what Kauffman-Kohler terms it as “normative”. Normativity plays a key

role in reluctance for acceptance of soft laws as legitimate sources as we have already
discussed that they are created by non-state actors lacking public enforceability and
trust.
There is always a defined role of soft law in any form of international dispute
resolution24 and its legitimacy in international arbitration depends wholly and solely
upon the parties and the users to render upon themselves a fair and equitable
decision. It is thus not a surprise that one of the often heard criticisms of soft law is
that it leads to judicialization of arbitration.25 This judicialization of arbitration is one
topic touched upon by several scholars and depending upon the fairness and efficiency
expected by the parties equilibrium with regards to arbitration's flexibility and
predictability is struck.26 There are often competing goals that have to be faced by
arbitrators when deciding the matters based upon fairness and efficiency where
efficiency necessitates less amount of time and cost whereas fairness demands
fulfillment of legal rights even when there is extra cost and time involved and thus
there is a need to fix the role legal authority. 27 Another crucial ground for legitimacy
of soft law is harmonization of positive law where best attributes of both domestic and
international law are integrated to form upon a comprehensive and extensive
legislation. However,
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Page: 39
the practical application of the same isn't necessarily easy as more often than not
domestic laws of every country differ because of the varied culture and the scope of
those existing are far different from the legal traditions and nuances of modern soft
law instruments. Initiatives for harmonization have taken place in international law
since 1980's by unification of commercial arbitration laws like the UNCITRAL Model
Law.28 Crystallization or what academics call articulation of a prior view is also cited as
critique for the acceptance of soft law in international arbitration where although the
prior views are non-legal in nature reflects more of an inchoate view and has a
potentially solidifying effect.29
Despite all the talk about the legitimacy of soft law, it is important to understand
the empirical application of these laws in modern times to get an idea of the realist
picture. As per a report published by a 120-member subcommittee of the IBA
Arbitration Committee in 2016 led by L&W, LLP and practitioners from 11 countries30
concluded that the IBA Guidelines on Conflicts of Interest in International Commercial
Arbitration and IBA Rules on the Taking of Evidence in International Commercial
Arbitration are referred in 69-93% of the cases. A more nuanced view with this regard
was that the usage of these rules will grow further in the field of international
arbitration and clearly depict the high level of self-regulation achieved. However, the
explanation behind non-reflection of this contradictory result in terms of legitimacy of
soft law lies in the common law bias where arbitrator
Page: 40
practitioners are used to following the domestic or institutional laws in conducting

arbitration proceedings and are reluctant to regard the successful usage of soft law
instruments. The most customary criticism in this respect is the over-regulation of the
arbitration process by over-burdening the arbitration and therefore converting the
alleged dispute resolution methods to a court-like interface and over-judicializing it.
Also, as the arbitral awards and judgments are more often confidential the usage of
these guidelines remains a mystery. Furthermore, the purpose of IBA Guidelines is to
encourage a trade-off of information worldwide and promote independence of judiciary
and not to assist in dispute resolution per se.
There have been several examples in international law where the usage and
application of soft law played a determining role in delivering justice and fairness to
the parties. Lex mercatoria was one such body of English commercial laws functional
as international law of commerce 31 , was effectively formed by group of persons
(merchants) serves as a classic example of impact of soft law.32 It was often seen that
merchant communities would effectively bind themselves to the laws made by them.33
Indeed, it is always argued that arbitral panels are more often a remnant of lex
mercatoria and is a matter of soft law.34 Another important aspect of lex mercatoria
was that it seldom included interference from regulatory authorities, something of
which we find very common in international arbitration. The discretionary application
of Islamic financial law is also a good example of the receptivity
Page: 41
-----------------------------------------------------------------------------------------------------------------------------------------------------------
of arbitral tribunals towards acceptance of soft laws.35 Various postmodern scholars

have asserted that soft laws are one such instrument that has improved the area of
international dispute resolution and unless otherwise provided for laws must be kept
as soft to increase its validity and significance.36 Another innovative example for such
application is the use of the Tallinn Manual on the International Law Applicable to
Cyber Warfare in the field of International Humanitarian Law (IHL) which is nothing
more than an academic piece of study applying to cyber-warfares analyzing the cyber
impact on the critical infrastructure of a nation and the ways of reducing and
regulating such warfare. Although, it being merely a non-binding piece and a part of
soft law when it comes to jus ad bellum has been very successful in bringing about a
certain degree of authoritative clarity in this area.37
Therefore, there is a pressing need on the part of the academic and professional
authorities to regulate ethics and further the wide acceptance of the soft law
guidelines as cited in the IBA Arbitration Committee shows that international
arbitration has been successful in holding the central tenet of the concerned area of
law.38 It is because of this ambiguity and paradoxical aspect of soft law that it is
considered either a blessing or a plague.39
CONCLUSION
Soft law as understood in the modern context is considered as a paradoxical term
defining a further ambiguous process of justice delivery mechanism at
Page: 42
the international level where from a conventional viewpoint rule of law is considered
hard and in its basic sense binding but with the introduction of several other legal
instruments, the binding value has reduced. 40 The significance of soft law in the field
of international arbitration cannot be undermined just because of the fact that they
don't have the force of law or are made by non-state entities. Their contribution
towards various critical areas within international arbitration has been of great
magnitude and documents of the IBA have attained a strategic position in arbitral
practice.41 It is not an astonishing fact that soft law is used and applied by several
national legislations and therefore there is a greater international responsibility upon
on the drafters42 of soft law to produce it efficiently without any conflict so that the
future of “soft codes” is sustained. However, with regards to soft law instruments
attention must be focused towards the non-generalization of these norms. There are
noteworthy differences between different forms of these instruments and their impact
upon the tribunal and the parties thereof thus depends upon the application and
creation of these norms. Thus the duty of creator of soft law is doubled that the law
must be clear whether it is procedural or substantive in nature to have a “fair” impact
upon the parties which is the quintessential expected outcome of this form of dispute
settlement mechanism.43 All the discussion about application and
Page: 43
legitimacy of soft law boil down to ethics of the creators, arbitral panels, practitioners,
the parties and the dependence of it is upon these parties in a more formal way of ‘veil
of ignorance’44 . It is because of this reason there have been scholars demanding
legalization and codification of substantial soft laws to deal with strategic uncertainties
and the laws with no proper coherence gets eliminated. 45 The proper channelization of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
soft law at international level can lead to impeccable harmonization of international

trade and commerce46 which has been going on since the development of lex
mercatoria and the need therefore is to bring renaissance in the field of international
arbitration. As soft law is often cited in arbitral proceedings as faute de mieux, more
and more of soft law instruments are produced at national and international level for
further clarification in this field which still looks mysterious and bewildering to explore.
Non-interference of governmental agencies in this non-governmental form of dispute
resolution not seems paradoxical but also hampers the growth at the expense of
regulation.
This discussion on legitimacy is a never-ending debate, but what we as lawmen

must look at the bottom line is that the system of international arbitration will never
be perfect and is therefore in the interest of the arbitral community that all the parties
involved themselves weigh the balance of competing interests of application of soft
law to eradicate the legitimacy and
Page: 44
to avoid jeopardizing the field of international arbitration. 47 It is in this context has

been said that soft law is not just a customary process but product of international co-
operation among States in the contemporary world community.48
———
1
BA.LL.B, 2nd Year, Auro University.
2
Jeff Sovern, The Coase Theorem and the Power to Increase Transaction Costs, McGeorge L Rev, Vol. 40.
http://www.mcgeorge.edu/Documents/Publications/05 Sovern MasterMLR40.pdf (Last accessed: Aug 17, 2018);
See also. R.H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 1 (1960).
3 B.H. Druzin, Why does Soft Law have any Power anyway?, Asian Journal of International Law, 7, pp. 361-378
(2017).
4
Anna Di Robilant, Genealogies of Soft Law, The American Journal of Comparative Law, Vol. 54, No. 3 pp. 499-
554. (Summer, 2006).
5 G. Kauffman-Kohler, Soft Law in International Arbitration: Codification and Normativity, Journal of International
Dispute Settlement, pp. 1-17 (2010); Available at https://lk-k.com/wp-content/uploads/Soft-Law-in-
Intemational-Arbitration-Codification-and-Normativity.pdf (Last accessed: Aug 17, 2018).
6 S. Vogenauer, Sources of Law and Legal Method in Comparative Law, The Oxford Handbook of Comparative
Law, Oxford University Press 879 (2006).
7
Favalli Daniele, An Overview of Existing PRT's: Analysis, Facts and Figures, ASA Special Series No. 37, p. 1-16;
https://arbitrationlaw.com/library/overview-existing-para-regulatory-texts-prts-analysis-facts-and-figures-
chapter-01-sense-and (Last accessed: Aug 17, 2018).
8 Mayer, The Principles in ICC arbitration practice; UNIDROIT Principles: New Developments and Applications, ICC
Int'l. Court Arb. Bull. 2005, Special Supplement, No. 662. For a generalized view, See. M.J. Bonell, An
International Restatement of Contract Law: The UNIDROIT Principles of International Commercial Contracts, Ed.
3, ISBN: 97890-04-19469-4.
9 Paula Hodges, The Proliferation of “Soft Laws” in International Arbitration: Time to Draw the Line?, Austrian
Yearbook on International Arbitration 2015. http://hsfnotes.com/arbitration/wp-
content/uploads/sites/4/2015/03/Arbitration-Yearbook.pdf (Last accessed: Aug 18, 2018).
10
F. Luth, Dr. P.K. Wagner, Soft Law in International Arbitration - Some Thoughts on Legitimacy,
http://studzr.de/medien/beitraege/2012/3/pdf/StudZR 2012-3 Lueth-Wagner international arbitration.pdf (Last
accessed: Aug 18, 2018).
11 G. Kauffman-Kohler, supra, 4.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
12H.D. Gabriel, Advantages of Soft Law in International Commercial Law: The Role of Unidroit, Uncitral, and the
Hague Conference, 34 Brook. J. Int'l L. 655 (2009).
13
M.J. Bonell, The UNIDROIT Principles of International Commercial Contracts and the Principles of European
Contract Law: Similar Rules for the Same Purposes?, 26 Uniform L. Rev 229-246 (1996);
https://www.cisg.law.pace.edu/cisg/biblio/bonell96.html (Last accessed: Aug 18, 2018).
14 O. Schachter, The Twilight Existence of Nonbinding International Agreements, The American Journal of
International Law, Vol. 71, No. 2, pp. 296-304 (Apr, 1977).
15 See. LCIA Rules, Art. 14.5 (2014).
16
See. UNCITRAL Arbitration Rules, Art. 17.1 (2010).
17J. Fry & S. Greenberg, The Arbitral Tribunal: Applications of Articles 7-12 of the ICC Rules in Recent Cases, 20
(2) ICC International Court of Arbitration Bulletin, 12 (2009).
18C.A. Rogers, Fit and Function in Legal Ethics: Developing a Code of Conduct for International Arbitration, 23
Mich. J. Int'l L. 341 (2002).
19
G. Kauffman-Kohler, supra, 4.
20
P.M. Dupuy, Soft Law and the International Law of the Environment, 12 Mich. J. Int'l L. 420 (1991).
21Berger, Klaus Peter, The Creeping Codification of the Lex Mercatoria, Kluwer Law International the Hague,
London, Boston 1999.
22
A. D'Amato & K. Engel, International Environmental Law Anthology, Anderson Publishing Co, Cincinnati 59
(1995); See also, Anna Di Robilant, supra 3.
23 S. Gopalan, New Trends in the Making of International Commercial Law, 23 J.L. & Com. 117, 153-55 (2004).
24
H.D. Gabriel, supra 11.
25
J.D. Becker, International Arbitration in the 21st Century: Towards Judicialization and Uniformity?, The
American Rev of Int'l Arb (1995); See also, L.A. Mistelis & J.D.M. Lew, Pervasive Problems in International
Arbitration, Kluwer L Int'l (2006), ISBN 9789041124500.
26 W.W. Park, The Procedural Soft Law of International Arbitration: Non-Governmental Instruments,
https://www.arbitration-icca.org/media/4/55731340797964/media012571307206490park soft law.pdf (Last
accessed: Aug 18, 2018); See also. G. Phillips, Is Creeping Legalism Infecting Arbitration?, 58 Disp. Res. J. 37
(Feb./April 2003).
27Id. At 23; See also. J.H. Weiler, The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal
and external Legitimacy of WTO Dispute Settlement, 13 Am. Rev. Int'l Arb. 177 (2002).
28
H. Krone, From Intl Uniform Conventions To Model Laws - From Guides To Principles: The Choice Of Approach,
L. Perret, A-F Bisson, N. Marini.
29 T. Gruchalla-Wesierski, A Framework for Understanding “Soft Law, 30 McGill L.J. 37 (1984),
http://www.lawjournal.mcgill.ca/userfiles/other/2630755-wesierski.pdf (Last accessed: Aug 18, 2018). See also,
Compensation for Nationalized Property (U.S.A. v. Libya), (1977) 17 I.L.M. 1.
30 A. Ross, How are IBA soft law instruments received worldwide?, Global Arb Rev, Sept 22, 2016,
www.globalarbitrationreview.com; Retrieved from https://www.lw.com/thoughtLeadership/how-are-soft-law-
instruments-recieved-worldwide (Last accessed: Aug 18, 2018).
31 L.S. Sealy, R.J.A. Hooley, Commercial Law: Text, Cases, and Materials, ISBN No.: 9780199299034, Ed. 4.
32 HJ. Berman & C. Kaufman, The Law of International Commercial Transactions (lex mercatoria), 19 Harv. Int'l
L.J. 221 (1978).
33R. Cotterrell, What Is Transnational Law?, Law & Social Inquiry, Journal of the Amercian Bar Foundation, Vol. 7,
Iss. 2; See. Also, V. Heyvaert, The Transnationalization of Law: Rethinking Law through Transnational
Environmental Regulation, Transnational Env L, 6(2), 205-236, Vol. 6 Iss.2.
34 O. Lando, The Lex Mercatoria in International Commercial Arbitration, ICLQ 34 747 (1985).
35 L.A. DiMatteo, Soft law and the principle of fair and equitable decision making in international contract
arbitration, CJCL (2013) pp. 35. http://cisgw3.law.pace.edu/cisg/biblio/dimatteo7.pdf (Last accessed: Aug 18,
-----------------------------------------------------------------------------------------------------------------------------------------------------------
2018).
36L. Spagnolo, CISG as Soft Law and Choice of Law, Ch.11, L.A. DiMatteo International Sales Law: A Global
Challenge, ISBN No.: 978-1107020382, Cambridge University Press (2013).
37 Schmitt, Michael, Tallinn Manual on the International Law Applicable to Cyber Warfare, New York, United
States of America: Cambridge University Press.
38
Paula Hodges, supra 8.
39 W.W. Park, supra 25.
40 F.A. Cardenas Castaneda, A Call for Rethinking the Sources of International Law: Soft Law and the Other Side
of the Coin, Mexican Yearbook of Int'l L., Vol. XIII, 2013, pp. 355403.
http://www.scielo.org.mx/pdf/amdi/v13/v13 a8.pdf (Last accessed: Aug 18, 2018).
41L. Parsons, Independent, Impartiality and Conflicts of Interest in Arbitration, 2nd IPBA ASIA-PAC Arbitration
Day Conference, 8th Sept. 2016. https://www.quadrantchambers.com/images/uploads/documents/Luke Parsons
QC-IPBA paper.pdf (Last accessed: Aug 18, 2018).
42M. Sharmila, Translating Legal Norms into Quantitative Indicators: Lessons from the Global Water, Sanitation,
and Hygiene Sectory, William & Mary Environmental Law and Policy Review, Vol. 42, No. 2, 2018.
https://ssrn.com/abstract=3148130 (Last accessed: Aug 18, 2018).
43A.M. Kubalczyk, Evidentiary Rules in International Arbitration - A Comparative Analysis of Approaches and the
Need for Regulation, GroJIL 3(1) (2015), 85-109 https://groiil.files.wordpress.com/2015/05/groiil volume-3 issue-
1.pdf (Last accessed: Aug 18, 2018).
44 D.A. Desierto, Rawlsian Fairness and International Arbitration, 36 U. Pa. J. Int'l L. 939 ().
http://scholarship.law.upenn.edu/iil/vol36/iss4/3 (Last accessed: Aug 18, 2018).
45K. Abbott, & D. Snidal, Hard and Soft Law in International Governance. International Organization, 54(3), 421-
456, (2000); See also, G. Bertucci & A. Alberti, Globalization and the Role of the State: Challenges and
Perspectives, https://pdfs.semanticscholar.org/9edd/97224bb2978453e6ff5c08afc56dd9e6064e.pdf (Last
accessed: Aug 18, 2018).
46 B.H. Druzin, Why does Soft Law have any Power anyway?, Asian JIL, 7, pp. 361-378 (2017).
47 F. Luth, Dr. P.K. Wagner, supra 9. See also. M. Erdem, Soft Law in International Arbitration,
http://www.mondaa.com/turkev/x/575696/Arbitration+Dispute+Resolution/Soft+Law+in+I
nternational+Arbitration (Last accessed: Aug 18, 2018).
48 G.F. Handl, R.B. Simma, P.M. Dupuy & C. Chinkin, A Hard Look at Soft Law, ASIL, Vol. 82, pp. 371-395 (1988).
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

Legitimacy of Soft Law in International Law

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Legitimacy of Soft Law in International Law

Uploaded by

Copyright:

Available Formats

SCC Online Web Edition, © 2021 EBC Publishing Pvt. Ltd.

Page 1 Monday, November 01, 2021

(2019) 3.1 IJLIA 29

The Legitimacy of Soft Law in International Disputes Settlement

THE LEGITIMACY OF SOFT LAW IN INTERNATIONAL DISPUTES SETTLEMENT

international stage becomes the need of the hour.

The immense success of international arbitration lies in its flexible system of

is weaker in comparison to traditional law.4 Although there is no universally accepted

Soft laws with regards to international arbitration can narrowly be classified as

Evidence in International Commercial Arbitration. The professional arbitration rules

developed by the General Assembly of the UN in 1966 for unification of international

THE “SOFTNESS” OF LAW

2. Through party autonomy/agreement: The contract plays a key role in

these methods of conflict management.

THE “LEGIT” DISCUSSION

procedure or what Kauffman-Kohler terms it as “normative”. Normativity plays a key

practitioners are used to following the domestic or institutional laws in conducting

of arbitral tribunals towards acceptance of soft laws.35 Various postmodern scholars

soft law at international level can lead to impeccable harmonization of international

This discussion on legitimacy is a never-ending debate, but what we as lawmen

to avoid jeopardizing the field of international arbitration. 47 It is in this context has

You might also like