Originally from European International Arbitration Review

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Introduction

The pairing of ‘Soft Law’ and ‘Codification’ in the context of a paper dealing with ‘Lex Mercatoria’ may be regarded as an oxymoron. The vaporous texture of Soft Law seems unsuitable to fit into the rigid structure of a ‘Code’ and the very purpose of the former may be described as the enhancement of features such as flexibility and adaptability, which are irreconcilable with the structured and rigid nature of the latter. The problem-solving ability of Soft Law stems from its sinuosity, like clouds that move freely in the open sky of transnational commercial law. The attempt at codifying Soft Law could result in a fiasco, not unlike the attempt to store those clouds in a jar.

But, what exactly, in this context, is Soft Law?  Focusing on the genealogy of Soft Law,  the dichotomy emerges between authors who have come to discuss about Soft Law as one of the constituents of the Medieval ius mercatorum,  and, in turn, of the resurgence of the contemporary Lex Mercatoria,  (or new Law Merchant)  and others who emphasize the connection between Soft Law and the XIX-XX Centuries’ anti-formalistic theories of social law and legal pluralism. 

Focus on the Medieval origin and its contemporary revival emphasizes the autonomy and universality of commercial law,  and the benefits of law-making mechanisms relying on merchants’ self-regulation.  Accordingly, from this perspective Soft Law is described as one of the constituents of Lex Mercatoria, along with customary commercial law, contractual practices and tribunals’ decisions rendered in international commercial arbitration.