Marija Mijatović, Soft Law in International Commercial Law, Faculty of Law and Business Studies dr Lazar Vrkatić, Novi Sad, 2024 (368 p.)

Автор: Gajinov Ž. Tamara

Журнал: Pravo - teorija i praksa @pravni-fakultet

Статья в выпуске: 2 vol.41, 2024 года.

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Короткий адрес: https://sciup.org/170204380

IDR: 170204380

Текст статьи Marija Mijatović, Soft Law in International Commercial Law, Faculty of Law and Business Studies dr Lazar Vrkatić, Novi Sad, 2024 (368 p.)

^XJ © 2024 by the authors. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https://creativecommons. org/licenses/by/4.0/).

by states and international organizations, and also by businessmen. To the quality of work adds the analysis of significant number of decisions, both court and arbitration, that contribute to the clearance and comprehensiveness to perception of this law phenomena, that is still insufficiently researched.

Using mature and receptive style of presentation, using excellent arguments, in a comprehensive way, soft law is observed as a product of new times and new needs in a study which surely will be noticed not only in the domain of commercial law science, but widely - in legal theory in general, by creators of soft normative instruments, and also by those applying them in their business circles.

The monography in front of us is а proof of tectonic changes of world legal scene lasting for several decades, that lead to emergence of fundamentally different legal instruments bringing dynamism and flexibility to normative flows, as well as the opportunity for ad hoc interventions. At the same time, at the European Union level, there is a redefinition of the traditional division of sources of law into primary and secondary, having a tendency for soft law regulation to make a new, tertiary group. The author underlines that it performs pre-legal, post-legal and para-legal functions, and the scope of these will become clearer in the following years. At the same time, the positions denying soft law instruments the feature of rights were overcome by those who see in them a crucially permissive form of regulatory action of nonbinding force. Believing soft law’s power, possibilities and potential, the author highlight that these are instruments remaining “outside the established boundaries of international law, but are subject to the opus of legal thought and deserve her attention”.

There is not a single complete or similar complementary study, neither in the domestic nor international scientific frameworks. Related to that, it was pointed out firstly that these are written instruments containing rules of conduct. Formally, they are of a non-binding nature, so there is no judicial protection in case of non-compliance. Nonetheless, soft law represents legal sources producing de facto, not de jure, effects predicted by their creators. There are different degrees of obligingness of such acts, depending on the quality of legal solutions, authority and impact of their makers. Afterwards, it is stated that soft sources of law are characterized by a non-traditional procedure for passing, excluded from usual legislative procedure. Regardless of the fact that they are formed by the factual situation generally, soft law sources still keep their normative component in terms of, before all, nomotechnical structures. The author also indicates the fact that it is a legal phenomenon with an exceptionally heterogeneous composition, in terms of the instruments that fall within its volume. They are connected to the international community, the most developed within the EU, and from there it spreads to the national legislation level, in coexistence with traditional legal instruments with its harmonization, unification and globalization role. Soft law completes all the regulation needs of modern and unforeseeable relations in nowadays society in dynamic and flexible manner.

Due to all these characteristics the author bravely sees soft law regulation as a completely “new wave of experimentation” that is gradually transforming the international (European) legal order, examining the ideal of hard legislation that is centuries old and introducing “essentially new, different levels of normative intensity.”

Structurally, with the introduction, the Monography is composed of two comprehensive parts, that are formed from several shorter chapters. Within the first one, bearing the title soft law - part of the new legislative culture, there is the analysis of the complexity of international law and the tendency of the development of legal sources in the context of the influence made by soft law acts. In order to perform the analysis of this term, a previous position was taken with regard to the binary theory of law (according to that theory soft law is logically impossible) and the continuum of the theory of law (which allows the legal foundation of this phenomenon), in order to approach the overview of the possibilities manifested by the hybrid theory that is dedicated to the way of soft instruments usage. Likewise, there is the insight made into the adequacy of re-examining the context of modern legal pluralism, the principle of legality and the criticism of the theoretical analysis of soft law justification. Afterwards, it is underlined that understanding of the international normative order depends on the analysis of the diversity of techniques used in creating the international law, emphasizing the new role of the comparative method in that process. Related to that, the author examines the sources of international law in the context of the traditional classification provided by Article 38 of the International Court of Justice. Then, there is presented assessment of the influence of international organizations and other international entities, globalization process, Americanization and Europeanization of law, as factors influencing the forming of the international legislative system.

The end of the first chapter of the first part, is the author’s presentation of critical view of the legal harmonization contemporary process, with suggestions for reaffirming this process in contemporary conditions. The second chapter of the first part of the Monography, with the title “Defining the term soft law”, discusses the problem of its terminological determination and points at diversity of defining and determining the legal nature of this phenomenon, followed by an overview of existing legal thought and numerous theoretical positions regarding soft law. The following pages include an overview of the concept of soft law historical development, with a comparison of the positions of neo medieval thought and social genealogy in determination of its origin and value. Then, there is analysis of the functions performed by soft law regulations (such as pre-law, additional law, paralaw, i.e. the role of model legislation, i.e. applicable contract law), which have the harmonization of law as their ultimate goal. This part accentuates the diversity of forms in which soft law instruments appear, and also the problems in determining final classification of them. Thereafter, the author examines the peculiarity of the soft law phenomenon and explains why it is considered to be a new, tertiary group of law sources within the European Union. The special review is given to explain the role of soft law sources during COVID -19 pandemic, when their hyperproduction happened. A large number of general and technical recommendations, proceedings, directives, circulars, pandemic plans, administrative guides, codes of conduct and so on, have caused incoherence and over-norming, constitutional violations, and made confusion in the general public. These circumstances created the need for usage of all the acquired experience for reform and the creation of a clearer and better arranged framework for the understanding and application of soft law regulations in the post-pandemic period. At the very end of the second part, the author makes comparison of hard law and soft law sources - primarily with regard to international conventions. Thus, in order to make the picture that would be fully objective, there is an analytic overview of all advantages and disadvantages of soft legal instruments.

In the Monography’s second part, with the title “The role of soft law as an instrument of harmonization in international trade law” , the author primarily analysed the justification of the need for harmonization, through the various methods by which it is performed, as well as the priorities of equalisation in the domain of contractual trade law. Afterwards, there are peculiarities of the legal and political factors of the commercial and contract law harmonization in the European Union. Chapters three and four present the methodological aspects of the so-called bottom-up approach of harmonization, the role and forms of cooperation of certain international organizations in the capacity of formulating agencies, and, at the end, the use of soft law sources. After that, there is an account of soft law instruments in international trade law, which are considered to be a type of modern lex mercatoria .

The sixth chapter of the second part, lists the specifics and advantages of the application of soft instruments, as well as certain types of harmonization functions of soft law in international trade law, namely: the function of soft law as a model law, applicable contract law, rights in arbitrations and on courts, means for interpretation and filling legal gaps in international uniform and national rights. The last chapter of second part analysis the most important soft law sources in international trade law. On the bases of the criteria of success, the following are presented: Principles of European Contract Law, UNIDROIT Principles for International Commercial Contracts, Common Framework for Contract Law, Draft Common Reference Framework for European Private Law and Principles of European Contract Insurance Law and Principles of Reinsurance Contractual Law. For each individual act there is analysis of reasons and conditions of origins, usage possibilities, significance and further legal perspective.

In whole, the Monography provides a comprehensive, objective view of soft law , with evaluation of its potential as a means of harmonizing international trade law, which still does not have a wider application in Serbian law. The fact that it is a highly useful harmonization instrument, that may also be an introduction to hard law as an alternative legal remedy. These facts gradually redefine up to date international normative activities, showing a tendency for this to happen equally within national frameworks. Soft acts as model law, affect the creation of “world merchant law”, and as the author notes, “successfully denationalize the legal regime of cross-border transactions”.

The Monography notices that the usefulness of soft law is placed in its readiness to satisfy the needs for transitional solutions, when some issues are not mature to be regulated by classic legal instruments in the adequate manner. Therefore, soft law is a salvation from discord and a way of filling legal gaps regarding some issues. Sometimes, an individual issue can be regulated in a better and more detailed way using the soft law, in comparison to what could be achieved by classical regulation which is based on, as it was emphasized, “the most general common denominator of the negotiator’s current possibilities”. Fast enactment of laws, and also changes in case of inadequacy, adaptability and flexibility, involving the opportunity for the parties to find the most suitable normative options in accordance to their autonomy of will, are the most important advantages of soft law . Hence, soft law often provides a more ambitious and far-reaching step forward in international legislative flows, in accordance to new needs, conditions and time.

In general, the Monography in front of us fills a significant gap in legal theory, using a thorough and systematic existing knowledge review, analysing the effects of previous judicial practice, and giving a detailed review of all the advantages and disadvantages of soft law, which comprehensively provides a new perspective on this legal phenomenon.

Through the analysis, the author bravely destroys the stereotypes of the conservative understanding of the sources of law, underlining the need for their re-evaluation and expansion, observing the soft-hard law instruments relation. Their skilful combination is the key to regulating international trade, by reintegrating a hybrid legal framework. Following this approach will totally eliminate any existing vagueness related to the roles and functions of soft law.

The extensive study that is available to us, also made an important popularization of soft law instruments, with the necessity to involve knowledge from this field in the curricula of education subjects relating the sources of EU law, empowering the idea of a common core of European contract and private law in general. Finally, it is certain that we have in our hands an extraordinary, complete and comprehensive piece, which skilfully pushes the boundaries of the fundamental theoretical knowledge about the contract law sources. It may be considered to be a kind of guide for introduction of all the potentials of specific soft law instruments, which sets the way for further research, adjusted to the transformation processes of basic legal institutes in the spirit of new times, challenges and needs of modern society.

Gajinov Ž. Tamara

Univerzitet Union u Beogradu, Fakultet za pravne i poslovne studije dr Lazar Vrkatić, Novi Sad, Srbija

Marija Mijatović, Soft law u međunarodnom trgovinskom pravu, Fakultet za pravne i poslovne studije dr Lazar Vrkatić, Novi Sad, 2024. (368 str.)

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