International Soft Law Research Articles

Joint and several liability at the interface of national and international law and the FIDIC conditions of contract

Abstract The international terms of the 2017 FIDIC Red Book (reprinted and amended in 2022) state that, when the contractor is a joint venture (JV), all members are jointly and severally liable to the employer. These terms also establish certain procedural rules—the most important ones being the submission to the employer of the JV undertaking and the appointment of a leader. However, these international terms do not provide for substantive rules pertaining to the plurality of the JV members. These require reference to the applicable law that governs the construction contract. The applicable law can be domestic law, such as Qatari law, or an international soft law, such as the Unidroit Principles. Comparing these two possibly applicable laws, it becomes evident that there are no significant differences between the two regarding the substantive rules concerning a plurality of obligors. Furthermore, it is argued that the majority of these substantive legal rules, whether national or international, are inoperative in a construction contract incorporating the international terms of the FIDIC Red Book.

Towards Greater Freedom of Expression for Judges. The Rejection of a Culture of Judicial Silence and Its Benefits for Liberal Democracy*

The current study asserts that the rejection of a culture of judicial silence is beneficial to the architecture of liberal democracy, as judicial expression outside a courtroom assists in maintaining a balance between its components. On the one hand, this can create defence mechanisms against the alienation of the law from society (which appropriately appreciates the democratic component), while on the other, it aids in the actualization of the constitutionally determined role of the judiciary within the political system (safeguarding the liberal element). The discussion, which is essentially based on an analysis of international soft law, commences by examining two areas pertaining to judicial expression outside a courtroom: public discussion on the law and generally understood social life involvement. Subsequently, the limits of judges’ expression during such activities are analysed, and three proposals for their definition are put forward. As a next step, the paper highlights the diversity of judges as relevant to the problem at hand. The work concludes by outlining its findings, which also include the potential risks associated with the proposed project.

Ketinimas šaliai būti saistomai sudarant sutartis automatizuotai

The progress of automation is bringing back doubts in legal research about whether a party should be bound by the steps taken through automated systems used in contract formation. In response to these doubts, the article presents a critique of the so-called ‘separation’ theories, based on the arguments of the asynchrony of the will of the parties, objectivity, and the computer as a tool. It also aims to determine whether international soft law initiatives, as well as national legislation, are developing a universal and unified approach to the impact of automated systems on the conclusion of contracts. The UNCITRAL Commission, the European Law Institute, as well as legislators in both common and civil law jurisdictions, consistently reinforce the principle that contracts concluded by automated means must be recognized as binding, and legal consequences must be attributed to parties using automated systems. In the cases examined from the court practice related to automatically concluded contracts, the problem of assigning legal effects to the party using an automated system does not arise in principle.

Preferential Personal Income Tax Regimes in the European Union: A New Form of Permitted (Harmful) Tax Competition?

The aim of this contribution is to examine whether the current normative framework of the European Union is adequately equipped to deal with the potentially harmful effects of the so-called preferential personal income tax regimes (PPITRs). For that purpose, after providing an overview of these special tax measures within the EU landscape, the article analyses whether these regimes could be considered a new form of harmful tax competition under the international soft law instruments developed by the OECD and European Union. It is highlighted that these instruments at present do not cover personal income tax rules, although the effects of PPITRs can be as harmful as those of preferential corporate income tax regimes. With regard to other EU instruments (State aid rules, fundamental freedoms and the fundamental right to equality), it is concluded that they are not adequate to tackle in a systematic way the potential harmful effects of special tax regimes targeting individuals. To remedy this hiatus, a proposal is made to extend the mandate of the EU Code of Conduct and adapt the currently applicable criteria under the Code to enable it to capture harmful PPITRs.

Constitutionalization of Environmental Protection: Comparative Dimension

Modern comparative constitutional studies go beyond the analysis of traditional institutions. In particular, the process of constitutionalization of environmental protection is developing very dynamically. In the 1970s these issues were enshrined in four constitutions, at present they are contained in 157 constitutions of the countries of the world. The subject of constitutional regulation is significantly expanding: it includes the principles of environmental law, directions of environmental policy, environmental rights of future generations and institutional mechanisms for their protection. The evolution of constitutional provisions follows the drafting of soft international law norms. The countries of the global South are more active in this area of constitutional regulation than the countries of the global North. Certain regional approaches in this area have already emerged. Thus, in Latin American states there is a transition from anthropocentrism to ecocentrism, nature and its individual objects are recognized as subjects of law.

Business and human rights as Swedish foreign policy: The soft implementation of international regulatory norms

AbstractThis article aims to explain why national governments choose soft policies in the domestication of international norms even when those norms may explicitly call for harder measures. The article achieves this aim by exploring domestic adoption of National Action Plans (NAPs) for implementing the United Nations Guiding Principles on Business and Human Rights (UNGPs). The UNGPs are an international soft law instrument that calls for a mix of voluntary and mandatory policies to promote human rights due diligence, and NAPs are soft domestic policy instruments that lack the bindingness of mandatory due diligence legislation now found in several states. Most governments with NAPs have adopted them specifically as foreign policies, treating them not as regulatory initiatives but as tools for enhancing national reputations. Using a range of primary and secondary sources, the article constructs a case study of Sweden to explain why governments might opt for softer implementation of the UNGPs in the form of NAPs. It draws several conclusions: (1) governments may emulate the approach to domesticating international regulatory norms that is promoted by international organisations; (2) support from domestic actors motivates norm implementation, and the policy style selected is likely to reflect power constellations in the state and, under consensus‐based governance systems, the lowest common denominator of actor preferences; and (3) path dependency following institutional venue selection influences the type of policy developed and adopted. These findings shed new light on the reasons why international policy norms are implemented in ‘softer’ ways than perhaps intended by their architects.

The International Law Dilemma of Autonomous Weapon System

This paper aims to highlight the potential for serious humanitarian disasters caused by the rapid development of autonomous weapons systems, as they are currently unable to fully grasp the ability to analyze their targets and clearly distinguish between combatants and military targets due to current technological limitations. There is also controversy over whether autonomous weapons systems are combatants, and there is a certain degree of regulatory deficiencies in the field of international law. Existing international treaties are unable to perfectly regulate autonomous weapons systems and punish unlawful behavior. The paper mainly uses the method of analyzing specific problems based on legal principles and draws conclusions by referring to some cases. The conclusion of this paper is that the international community needs to establish a new, targeted international legal treaty, establish a more reasonable and realistic international soft law, establish and improve a broader international exchange system, and encourage countries to work together to solve this problem.

Climate Litigation in Indonesia: Lessons from the Royal Dutch Shell Case

This article compares the concept of unlawful act in the Indonesian and Dutch Civil Codes, with specific attention to the notorious decision of the Milieudefensie et al v. Royal Dutch Shell Case. Therein, the Dutch Court applied unwritten law under Article 6:612 of the Dutch Civil Code, calling for reduction in carbon emissions through policy changes by the Shell group. The use of unwritten law allowed for a comprehensive assessment of legal bases, including international soft law instruments, such as the United Nations Guiding Principles on Business and Human Rights. Inspired by such a decision, this article aims to unveil the readiness of Article 1365 of the Indonesian Civil Code in entertaining a similar case. It compares the approach taken in the Milieudefensie et al. v. Royal Dutch Shell Case with pertinent decisions by the Indonesian court concerning the implementation of Article 1365 of the Indonesian Civil Code. Furthermore, it focuses on two prongs of civil liability that are necessary for establishment: 1) unwritten law; and 2) causality. By doing so, this article aims to contribute to the evolving realm of climate litigation, specifically within the framework of civil law.

Legal aspects of investment facilitation of the Shanghai Cooperation Organization member states

One of the main goals of the Shanghai Cooperation Organization (SCO) is to implement economic and trade cooperation on the basis of equal partnership. Frequent events on economic and trade cooperation between the SCO member states not only contribute to the process of trade and investment facilitation, but also put forward higher requirements for the simplification of investment procedures in the economy and trade. The “Declaration on the Establishment of the Shanghai Cooperation Organization proposed to start negotiations on the simplification of investment procedures, the “Charter of the Shanghai Cooperation Organization” facilitated the process of simplifying investment procedures, and the signing of memoranda and protocols, etc. jointly contributed to the simplification of investment procedures in the form of soft laws. However, the maincontent of the SCO investment facilitation is reflected in international soft law documents. The lack of simplification of procedures at the stage of access to investments and the inability of the existing mechanism for settlement of investment disputes to meet the needs of the SCO limit the development of economic and trade cooperation of the SCO. Therefore, it is recommended to draw lessons from the experience of facilitating simplification of procedures, according to which member States should review or negotiate bilateral investment treaties, gradually introduce a model of a preliminary national regime plus a negative list, create amechanism for resolving SCO investment disputes and support the establishment of SCO economic and trade cooperation.

Frontrunners vs Free Riders? Mapping the Institutional Implementation of Human Rights Due Diligence in France and the Netherlands

This paper analyses the institutionalisation process of human rights due diligence (“HRDD”), from its origins as an international soft law doctrine into national hard law. The paper offers a comparative overview of the implementation process of HRDD in France and the Netherlands, with the aim to understand how and why institutional change took different forms in the two jurisdictions. The analysis applies the theoretical framework of historical institutionalism in order to understand the nuances of institutional change and assess whether this is a tale of frontrunners and free riders.

International Nuclear Security Law: The Use of ‘Soft Law’

Abstract International nuclear security law includes treaties such as the Convention on the Physical Protection of Nuclear Material and its amendment (A/CPPNM), as well as a series of soft law instruments, such as the International Atomic Energy Agency’s (IAEA) Nuclear Security Series (NSS). These treaties and law instruments function as guidelines providing policy direction and ensuring that the various nuclear facilities are properly protected. Traditionally, soft law has been typified by its flexibility and normativity. However, within the field of nuclear security law, nuclear security is mainly assessed using instruments that are properly implemented by relevant regulatory authorities or operators (in the case of soft law instruments), and regulatory bodies are given the authority to order operators to comply with mandatory instruction on the level of municipal law. This delegation of authority is necessitated by the potentially serious consequences of nuclear and radioactive material, as well as the associated facilities and activities. When the provisions of such instruments are transposed into municipal law, they somewhat function as hard laws despite having originated in international soft law. This is because nuclear security is a sensitive topic intimately related to national security. In conclusion, this unique combination of legally binding instruments and non-legally binding ones, which are often converted into legally binding documents as per municipal law in the case of Japan, enables robust control over nuclear security while also providing sufficient flexibility to ensure that a variety of nuclear facilities can fully adapt to the conditions required to protect these facilities.

"Common but Differentiated Responsibilities” in the Paris Agreement

The Paris Agreement, adopted in 2015, epitomizes a political approach to climate action, devoid of scientific oversight at its inception. This political nature underscores its essence, emphasizing action over guaranteed results. With a foundation in "common but differentiated responsibilities" (CBDR), nations set diverse climate goals based on unique circumstances. However, this diversity complicates policy alignment and raises challenging questions, such as the feasibility of carbon border adjustments and intellectual property dilution. Analyzing CBDR within the Paris Agreement framework unveils its evolution, shaped by political negotiations and national actions. This study delves into the intricate interplay between politics, policy, and international soft law, illuminating the agreement's dynamic nature.

Dynamic References To International Soft Law Agreements: Flexibility With Limits

The European Union relies increasingly on non-binding international agreements as a blueprint for its legislation on direct taxation. This implies converting a flexible soft law instrument into hard law that is subsequently difficult to amend due to the unanimity principle. A nascent trend to ensure that such Union legislation nevertheless stays in sync with future developments of the underlying soft law agreement are dynamic references to the latter. However, the scope for this approach is limited by the requirements of sufficient democratic legitimacy and legality of taxation, and respect for the institutional balance of the Union. Dynamic references to international soft law standards should therefore primarily be used as a source of interpretation or illustration for the concretization of already executable rules in the relevant EU legal act. They do not normally allow to incorporate also amendments and supplements of the original soft law agreement, unless additional safeguards exist that ensure compliance with the aforementioned Union law principles – at the expense of the desired flexibility, however. In this regard, the better approach would be the conferral of delegated powers upon the Commission to ensure a timely yet controlled alignment of the relevant Union tax legislation with new soft law standards. soft law, dynamic reference, democratic legitimacy, legality of taxation, institutional balance

国际软法作用和局限之反思

国际软法作用和局限之反思

IN DEFENSE OF A SPECIAL CYBER LAW FOR INDIA

Attempt to unfold the secrets of nature marks the progress of human civilization. With the extreme advancement of science and technology particularly in the field of information science, man can communicate and act in the virtual space. In the 21st century, it is almost impossible to live in this world without depending on cyber space as most of human activities are going to carry out in such space. The flip side of this advancement is the misuse of cyberspace for various purposes in the contemporary world. Cybercrime, different from traditional crime, is a new form of crime committed in cyberspace having swept and widespread impact on human society. Since cybercrime knows no national boundary, all out effort of nation states is required to combat the menace of cyber crime. However, the international community could not able to negotiate and adopt internationally binding legal instrument for preventing and combating cybercrime. On the other hand, nation states including India meet the challenges posed by cyber criminals, which necessitates to enact specific law for preventing and combating cybercrime. The paper attempts to explore national and soft international law that prevents and combats the menace of cybercrime.

IMPLEMENTATION OF SOFT LAW RELATING TO OUTER SPACE INTO DOMESTIC LAW

Space law is clearly oriented towards creation of soft law instruments and their subsequent implementation directly into national law. However, it is not an ideal method for regulating the peaceful use of outer space. At least a few problematic issues should be noted. Firstly, the lack of scrutiny by parliaments with regard to soft law standards accepted by States. Secondly, the multiplicity of soft law documents on the same subject matter – especially in the case of space debris (IADC, UN, ISO or ESA), which may not be fully identical. Thirdly, developments in space technology mean that existing soft law standards may nevertheless be outdated in practice. Fourthly, the creation of new soft law is not always a quick process. However, implementation of international soft law relating to outer space into domestic law ensures that international norms are binding under national law. It thus strives to guarantee both the development and the effectiveness of international space law, despite the absence of new treaty regulations.

International Soft Law Governance of Artificial Intelligence: Advantages, Approaches, and Credibility

Given the transnational nature of data and algorithms associated with artificial intelligence, individual countries often face challenges in developing an effective governance system. Ensuring a healthy, stable, and sustainable AI ecosystem requires international communication, cooperation, and interaction. However, in the emerging and fast-changing interdisciplinary field of AI, internationally binding laws like treaties and agreements cannot be easily established overnight. Multilateral negotiations and local consultations are necessary, as each provision must be carefully considered and weighed, a process that is time-consuming and slow in yielding results. Therefore, it is clear that non-coercive soft law methods are necessary to achieve rapid international consensus and facilitate action. Soft law intervention provides practical space in the current landscape of Internet governance and is both necessary and feasible. At the very least, soft law can initiate the process of legalizing Internet governance. The application of soft law can encourage countries to reach some foundational and framework agreements, enabling practical and effective preparations for future, more comprehensive agreements that may be reached.

Appraisal of existing evidences of competition law and policy: Bilateral legislative developments of Sino-Pak

Developing nations use contemporary competition laws based on international models for reasons ranging from achieving international legitimacy to achieving domestic economic objectives. Although passing such laws gives these nations competition regimes more legitimacy, doing so does not guarantee that their economic goals will be met unless the laws are also effectively implemented. Comparative legal scholarship suggests that effective enforcement requires, among other things, a positive link between the passed laws and the nation's pre-existing legal systems in light of development economics. The globalization of national competition laws, particularly the application of international soft law, is responsible for the existence of modern competition law. Secondly, the competition regimes in Pakistan and China face a number of long-term difficulties, many of which are the product of globalization, which must be addressed as soon as possible. In order to examine the aims and objectives, this study employs qualitative data analysis. The results of this research suggest that for both nations to successfully implement competition law, innovation and unconventionality are required. Although the goal of competition law is to prevent anti-competitive activities and practices by promoting fair and open market competition, this goal is achieved through protecting consumers from businesses' use of unfair business practices. Because of this, the act encourages the formation of agreements that limit and restrict market dominance. In addition, the law specifies how investigations, acquisitions, mergers, penalties, leniency, and other aspects of law enforcement should be handled. As a result, this law can be seen as extremely important for regulating firms while maintaining consumer and producer welfare. It eventually supports economic growth and social justice. As a result, Voluntary adherence to competition law, rules, and regulations is essential since doing so would significantly lower the societal costs of enforcing the law.

Globalizing from the inside out: national responses to international soft law in Latin America’s banking sector

Building from historical institutionalist contributions, this article explains why domestic regulators implement global rules to govern their banking markets. Although this question is not new, this paper tackles it with a novel approach. It frames regulatory globalization as an inside-out process in which domestic coalitions leverage international soft law’s power resources to advance their local agendas. The article highlights how local players utilize Basel’s power resources to build state regulatory capacities and market compliance conditions and, subsequently, strengthen those capacities and conditions to prompt regulatory convergence. To test this argument, the author conducts comparative case studies with Brazil, Chile, and Mexico, which challenge the conventional wisdom on rule harmonization. While the literature correlates convergence to externally driven, market-based economies and divergence to state-led, crony economies, case studies show the highest rate of convergence in Brazil’s state-led economy and the lowest rate in Chile’s market-based economy, with Mexico in between. The article concludes that regulatory politics is an iterative institutional process that does not necessarily coincide with a country’s variety of capitalism. It also points out that local policymakers are not merely standard followers but political players who mobilize global resources to further their interests while governing finance.

Research on the Status of International Soft Law in the Field of the Law of the Sea

Soft law is a concept opposite to hard law. It is not legally binding in principle, but it has the same effect as hard law. The diversity of international soft law manifestations is mainly reflected in the resolutions, decisions, declarations, statements, recommendations, guidelines, standards, general rules, and action plans of international organizations and international conferences.