ABSTRACT
This article, prepared for a celebration of the career of Professor Symeon Symeonides, the world’s leading Conflict of Laws expert, uses Symeon’s work as a point of departure to consider what role hardlaw and softlaw play in creating and harmonizing private international law.
The article looks at ‘softlaw’ generally and then examines several examples of its use in the harmonization of private international law and international private law. I consider the critical questions of whether softlaw can lead to harmonization and whether it can achieve this goal without hardlaw instruments and treaties. When is softlaw the goal in itself and when is it serving as the second-best alternative? And how does its role and significance differ among legal systems? Does it serve a different role in developing US law than in other legal systems (such as with ALI Restatements and Uniform Law)?
Looking at several areas and examples of softlaw instruments, certain patterns and themes emerge that answer some questions but raise new ones as well. One area where softlaw (and sometimes non-State law) seems to thrive is in connection with conduct that is privately regulated, especially in the area of dispute resolution. We see many examples in the area of cross-border arbitration and mediation and other areas where parties incorporate the softlaw into their contracts and these softlaw instruments create industry norms – UNIDROIT Principles; UNCITRAL Arbitration Rules; and ICC Incoterms and UCP. Another area for softlaw is where there are evolving norms and the law is still unsettled, as with intellectual property, the internet, cyberspace – here softlaw lets us find common values and work towards a consensus and towards harmonization. One also sees softlaw principles, such as the UN Ruggie Principles, leading to emerging consensus on business and human rights and business and sustainable development, even to hard law instruments such as European and national regulations. One finds softlaw also where an area of law is in flux and there is not enough consensus but the softlaw serves as a placeholder until the next step can occur, as we have seen with the UNCITRAL work in Online Dispute Resolution (ODR), and with some of the softlaw gap-fillers to conventions such as Hague Conference Guides to Good Practice. The article concludes with a consideration of the obstacles that remain regarding how to quantify the success of softlaw, how to harmonize softlaw with substantive law, and how to reach a finalized legal instrument.
Teitz, Louise Ellen, Harmonizing Private International Law and International Private Law Through Softlaw (February 14, 2025), Willamette Law Review (Forthcoming).
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