Soft and Hard Strategies: The Role of Business in the Crafting of International Commercial Law

Abstract

What motivates the choice between hard and soft law in the drafting of international commercial law, and what role does business play in the preference between the two? Broad disagreement exists in international law (IL) commentary as to motivations for reliance on soft international law. Traditionally, this commentary cast a wide gaze across both international public and private law, but debate about the use of hard or soft law is sharpened by focusing exclusively on international commercial lawmaking. Traditionally, IL commentary considered only on states' interests in crafting international law and ignored business interests. But recent scholarship has begun to question the primacy of nation-states in the making of IL. Some of this criticism is the result of empirical work – such as in the recent book Global Lawmakers, co-authored by Terence Halliday and me – which demonstrates that the state-centric focus of conventional IL theory is incomplete. These empirical studies, in turn, stand on the shoulders of theory questioning whether states alone are involved in international lawmaking. Looking specifically at international commercial lawmaking invites examination of the involvement of both public and private actors, and in particular businesses, financial institutions, and the international associations that represent their interests, in this process. States and businesses hold potentially divergent interests in the production of international commercial law, depending on the sort of law reform proposed, whether regulatory or otherwise. Soft law aids in bridging these differences in various ways – through its gap filling, advocacy, and socializing functions.