NEWSLETTER-2017

4 NEWSLETTER 2017 The Concept of Soft Law under International Commercial Law Definition . As defined above, soft law refers to a set of rules and principles that are non-binding, and whose normativity stems from their public acceptance. Generally, model laws, codification of custom and usage promulgated by international nongovernmental organiza- tions, international trade terms, model forms and contracts, restate- ments by scholars and experts and international conventions, are instruments of soft law 1 . They become positive law either by courts, arbitral tribunals or legislatures adopting them, or the parties adopting them in their agreements. The international conventions will gain a binding character when the states ratify them. History . Soft law has developed in three eras, the first of which is the Roman ius gentium, defined as the formally autonomous source of law regulating the economic relations between Roman citizens and foreigners 2 . The second era of the soft law appeared in 11th century when lex mercatoria was deemed a body of merchant customs and practices 3 . The last and third era began at late 20th century under the name of “ the new lex mercatoria ” 4 . In this era, the global business community took over the legislative function ( lex mercatoria ) and the adjudicative function (international commercial arbitration) 5 . Sources and Features . The new lex mercatoria is more cosmo- politan and more diverse since it was created by wide variety of entities, such as public bodies or intergovernmental agencies and organizations (e.g. UNCITRAL, UNIDROIT, IMO), as well as private bodies rep- resenting the global business community. The ICC is one of the best examples in the global business community through its contributions 1 Gabriel, Henry Deeb, The Advantages of Soft Law in International Commercial Law: The Role of Unidroit, Uncitral, and the Hague Conference; Brook Journal of International Law, Vol. 34:3, p. 658. 2 Di Robiliant, Anna, Genealogies of Soft Law, the American Journal of Compara- tive Law, Vol. 54, No. 3, s. 518. 3 Di Robiliant, p. 519. 4 DiMatteo, Larry A, Soft Law and the Principle of Fair and Equitable Decision- making in International Contract Arbitration, The Chinese Journal of Compara- tive Law, 2013, p. 6. 5 Di Robiliant, p. 524.