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

Part I returns to the classic definition of hard international law initially put forward by Kenneth Abbott and Duncan Snidal and related IR scholars and analyzes existing commercial law treaties in light of this definition. It concludes that virtually none of these commercial law treaties constitute “hard” international law because nearly all commercial law treaties rely on national courts for enforcement. But Abbott and Snidal’s focus on the extent to which international law is legalized—and especially the extent to which it is enforced by international actors—may matter less with commercial than other more public international lawmaking. This is because the mostly private law governing commercial transactions conceives of obligation and enforcement in ways distinct from its public law counterparts. Part II explains the distinction between private and public laws that govern purely domestic commerce. Many commercial transactions are not governed by regulatory legislation imposing “top down” obligations enforced by the state but rather contractual obligations that are self-regulating and mostly self-enforcing. In the absence of mandatory commercial regulation, businesses assert their interests domestically through privately organized contracts and litigation brought to enforce these contracts as well as through political pressure for reform of judicial administration. Where regulation does exist or has been proposed, businesses may also look to influence this regulation by lobbying legislators and executives. Part III considers the implications of commercial lawmaking for international settings and, in particular, state and non-state (that is, business) interests in the production of international versions of such laws. State sovereignty interests vary depending on the type of international commercial law reform proposed, whether regulatory or otherwise; business’ autonomy interests also vary along this axis. These interests may diverge, although the interests of states and businesses are also interconnected and subject to change based on assertions of influence. Soft law may aid in bridging these differences in various ways—through its gap-filling, advocacy, and socializing functions. Businesses are uniquely capable of fulfilling these functions through soft international law, capabilities that Part III explores both with reference to the detail of various international commercial laws and with regard to broader theoretical concerns