New Faculty Publication: Jane Winn on International Commercial Law Reform

Jane K. Winn, Hard Law and Soft Law in International Commercial Law Reform, 3 Sungkyunkwan J. of Sci. & Tech. L. 173 (Fall 2009).

Professor Winn explains at the outset of her article that although international commercial transactions have long been subject to customary international law, recent decades have seen a move away from the use of unwritten customary laws to govern these transactions.

In their place, parties have come to rely more heavily on positive law, such as treaties and formal codifications of merchant custom. These laws are referred to as "hard" or "soft," depending in part upon their precision and legally binding nature.

Professor Winn examines new, more informal types of "soft" law that began to emerge at the end of the 20th century, fueled by the process of globalization. She observes a pattern of states and parties in advanced economies "opting in" to private governance systems that permit them to capitalize on their market sophistication, and analyzes the impact of this trend.