LEX MERCATORIA, SOFT LAW AND A CLOSER APROACH OF UNIDROIT PRINCIPLES

Loredana Ioana BUCUR

Abstract

Lex mercatoria or trade usages continue to be the core of the international legislation and

principles. Soft law is a new variation of lex mercatoria with certain particularities.

Soft law is an instrument usually considered as non-binding but nevertheless with much

potential for morphing into "hard law" in the future by two different ways: one is when declarations,

recommendations, etc. are the first step towards a treaty-making process, in which reference will be

made to the principles already stated in the soft law instruments or by the direct influence on the

practice of states including European Court of Justice, creating customary law. As i mentioned

before, soft law is a convenient option for negotiations that might otherwise stall if legally binding

commitments were sought, because the choice would not have been between a binding and a nonbinding

text, but between a non-binding text and no text at all.

There is also the appearance of legality of the soft law because, due to the spreading of the

information, the citizens often assimilate the soft law instruments as if they were legal instruments

and slowly do not react against but moreover refer to these instruments frequently that ease the

process to become legal norms.

The article emphasize a complex analyze of lex mercatoria starting with historical approach,

juridical approach and also arguments against lex mercatoria.

The second part regards soft law from the social and comparative perspective. Also regards the

relation between soft law, treaties and trade usages wit a special aproach on the Principles on Choice

of Law in International Commercial Contracts, PECL and DCFR.

The last part describes the uniform and predictable frame under the UNIDROIT Principles.

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