The changing nature and role of soft law in international economic law and regulation: from state-centric to globalist paradigm

This study examines the changing nature and role of "soft law" in international law. Focusing on international `economic' soft law and regulation, the study contends that the transformation of international economy and politics in the 1980s have culminated in a paradigm shift in the international economic soft law and regulation changing both its nature and role. The leading "state-centric" paradigm of 1960s and 1970s has been replaced by a dual "globalist" paradigm, which consists of two sub-paradigms: the "non-state actor" and the "hegemonic state". The "non-state actor" paradigm refers to a non-state normative order, centred on the regulatory role of non-state actors. This paradigm has gained ground to (i) meet business need for flexible and efficient legal instrument, (ii) respond on a voluntary basis to `societal expectations'. The "hegemonic state" paradigm, on the other hand, indicates a move from soft law and de-regulation to hard law and re-regulation. The major reasons for this move are to facilitate the expansion of market economy and to accomplish the creation of a disciplined global market through bilateral and multilateral legalisation as well as through international economic institutions. Yet, this tendency of re-regulation has it is argued often been obscured by the dominant market-centred vocabulary, which promotes a pluralistic, hybrid and informal rule-setting and implementation model. On the whole, this study recognises that soft law may represent an opportunity for the normative development of international law by assuming an authoritative, interpretative or complementary role. Soft law can also promote a more participatory and democratic rule-making. The study nevertheless holds that in the foreseeable future the trend towards soft, voluntary, informal, and decentred regulation may have adverse effects on the already weak normative structure of international law, blurring further its normativity threshold by incorporating political and economical elements in a contextual and deformalised way.