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Unpublished Paper
THE FUTURE OF HARMONIZATION: SOFT LAW INSTRUMENTS AND THE PRINCIPLED ADVANCE OF INTERNATIONAL LAWMAKING
ExpressO (2009)
  • Robert A Pate, Samford University
Abstract

With vast amounts of financial and intellectual capital already being spent on international harmonization, inefficiencies infecting the lawmaking process render it ineffective and threaten the goodwill of the whole enterprise. This paper represents a synthesis of some of the most meaningful criticism about the perceived failures of the classic vehicle for harmonization—international conventions. In it, we have highlighted these failures, looked for their underlying causes, and searched for compelling soft law alternatives. This paper seeks to show that, above all, conventions suffer from over ambition. By intervening in the legal marketplace, underestimating national distrust and legal conflict, and insisting on uniformity, conventions create a rigid enterprise that simply tries to do too much. Soft law, on the other hand, embraces the organic emergence of law from practice, in which best solutions rise to the top. In doing so, soft law creates rules as they “should” be, while conventions create rules as they “must” be—the fragmentary result of compromised consensus. It would be a misconception to envisage a future of harmonization and unification of commercial law solely driven by the market operators and loosely framed by soft law instruments. However, it would be a similar misconception to envisage a future in which conventions operated on a business-as-usual basis. Thus, in the areas most fraught with failure, this paper seeks to propose ways in which soft law offers compelling solutions

Keywords
  • Soft law,
  • harmonization,
  • UCP,
  • PICC,
  • CISG,
  • Vienna Sales Convention,
  • conventions
Disciplines
Publication Date
August 31, 2009
Citation Information
Robert A Pate. "THE FUTURE OF HARMONIZATION: SOFT LAW INSTRUMENTS AND THE PRINCIPLED ADVANCE OF INTERNATIONAL LAWMAKING" ExpressO (2009)
Available at: http://works.bepress.com/robert_pate/1/