International Commercial Law Soft Law

1
International Commercial LawSoft Law

• University of Oslo
• Giuditta Cordero Moss, Ph.D., Dr.Juris
• Prof.ass., International Commercial Law,
• Oslo University

2
Soft Law

• A set of rules regulating international
  transactions
• Does not emanate from national sources of law or
  international treaties

3
Soft Law- Grounds in Favour

• National law is primarily aimed at regulating
  domestic relationships
• National laws differ from one another
• National laws are confusing and an hindrance for
  international trade
• International commercial usages and practices are
  more adequate to regulate transactions across
  national borders

4
Soft Law Grounds against

• Not a system but a fragmentary collection of
  rules
• Rules are too vague
• Rules are difficult to determine
• Rules are not issued by competent authorities

5
Sources of Soft Law

• Principles rooted in the good sense and common
  practice of the generality of civilised nations
• Usages and practices
• Model Laws
• E.g. UNCITRAL Model Arbitration Law
• Private Codifications
• E.g. INCOTERMS, UCP 500
• Restatements
• E.g. UNIDROIT Principles, European Principles

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International Conventions - Sources of Soft Law?

• If they are applicable, they are not soft law but
  applicable law
• If they are not applicable Can soft law achieve
  application of convention in lieu of ratification?

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Private Codifications

• International Chamber of Commerce, ISDA, branch
  associations
• INCOTERMS, UCP 500, Model Agreements, Codes,
  Definitions
• May be considered as expression of trade
  practices
• Are applicable if incorporated by the parties
• May not prevail over conflicting madatory rules
  of the applicable law
• Have a clearly determined scope of application

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INCOTERMS

• Terms of sale
• Passage of risk
• Division of costs
• Obligations in connection with delivery (customs
  formalities, transportation, etc.)
• Integration of applicable law (e.g. Art. 66 CISG-
  Incoterms are not in contradiction, are
  specification of when risk passes)
• Do not replace applicable law (e.g. Validity,
  Limitation, Interests, Remedies, etc.)

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UNIDROIT Principles of International Commercial
Contracts

• Drafted in 1994 by the International Institute
  for the Unification of Private Law
• Establish a balanced set of rules designed for
  use throughout the world
• No binding effect
• Persuasive authority

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UNIDROIT- Irrevocable Offer

• Art. 2.4 An offer cannot be revoked if it
  indicates that it is irrevocable (by fixing a
  time for acceptance or otherwise).

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UNIDROIT Definition of Force Majeure

• Art. 7.1.7 non-performance excused if due to an
  impediment beyond the partys control and that
  could not be expected to be foreseen or avoided

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UNIDROIT- Partial Impediment

• Not regulated

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UNIDROIT- Amendments to a contract

• Art. 1.3 Contract may be modified in accordance
  with its terms or by agreement

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Application of UNIDROIT Principles

• As an integral part of the contract, if they have
  been incorporated by the parties
• Not applicable if contrast with mandatory
  governing law (art. 1.4)
• As an expression of trade uses, if they have not
  been incorporated
• To corroborate governing law
• Rarely as an independent source of law

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Soft Law Scope of Application

• Soft law is mostly compatible with national laws
• Soft law is a desirable integration of national
  law
• If conflict, the applicable national law prevails