Custome Law and Soft Law

Custom and soft law:

• Custom law : “ law generated by social precedent and acceptance as distinct from institutional law generated from organisation of a superordinate authority.” It is a mistake to see custom law in small-scale societies as a rigid system that is obeyed without question, which is fixed and unchanging.
• The term «soft law» refers to quasi-legal instruments which do not have any legally binding force, or whose binding force is somewhat weaker than the binding force of traditional law, often contrasted with soft law by being referred to as « hard law »

A) Custom:

The custom was the basis of the Common Law. When itinerant justices rendered their decisions at the beginning they based them on customs but of course nowadays this is quite worn that the decision has a legal basis of the decision.

Defined in the Tranistry case (1608) as “such usages as has obtained the force of law”.

Criteria:

– Time immemorial: continuously. It should have been satisfied continuously.

– Reasonable, clear and certain, consistent.

– Exercised as of right.

The role of custom is very small; the only area when custom is used is in public international law cases.

B) Soft law:

It’s opposite to hard law and soft law. Soft law opposite to hard law means that part of law which isn’t binding. All that kind of law (primary legislation, secondary legislation, case law) is binding.

Besides some acts aren’t really binding, they are considered to be part of law => soft law. They are a kind of law but they are applied not because they are binding but because of their persuasive authority.

• Model Contracts :

Do you really enter in a contract by accepting an offer?

Every day we enter in a contract as a consumer and we don’t negotiate our contract. Model contract is what we sign contract that has been drifted in order to be used for thousands of people. Model contracts are contracts that are already drifted and that are used for many occasions, opportunities. If this model contract is entered every day in a lot of person, the rules set up in this contract are repeated, followed by all professionals and consumers. A way to impose some obligationsis to propose a model contract which is applied by a lot of persons.

Model contract are a part of soft law because the repetition of use in such contract may start the use of such contract may to apply for a lot of person, mechanism of repetition.

There is a real flow where English lawyers have the lead in the major of financial contracts. There are for instance two associations:

• ISDA: international swap and derivative association which provides model contracts for derivatives product, a model contract of swaps or currency swaps.

LMA: London market association. As its name suggest it has sit in London and this association is very powerful in the law market. Almost all banks that will entry to a lawn agreement will use the model contract that the LMA has drifted. Such models aren’t free, they are expensive but it serves as a basis for the conclusions of law agreements.

By drifting such model contracts it’s a manner that they may implicitly give, set up some rules which are enterprises in that branch. Model contract is a kind of soft law.

• Model Law :

It’s not a domestic, national law but this is a text proposed as a model that states may choose to adopt, to modify and to incorporate in its own law. Model law is a text negotiated by representatives of nations and which deals with a specific topic. The model law that encountered so far the bigger success is the model law on arbitration made under the offices of the UNCITRAL: commission of international trade law. This Commission negotiates some texts on the international trade. One of his texts is the model law of arbitration. It’s not a convention it’s just a text which be drifting by different nations. It’s a proposal negotiate together. At the end of the negotiation they have a text and then the text may choose that take to proposal.This is just an offer. A lot of states have adopted the model law on domestic laws. It’s the case of different Common-Law countries: Canada, Australia, and England which adopted the text.

It has also Scotland adopted his own legislation on arbitration which was inspired by the UNCITRAL model law on arbitration but also with some slight changes. Model law is soft law, it’s not a binding text but it creates law.

• Private Code of ethics :

They play a certain role. This code which has drifted by private entities may be binding if a person or a category of person makes the statement that he or she will follow the rules of principles and trend in such code. This is an undertaking by certain persons to abide certain principles.

The MacBride Principles: non fair principles, kind of corporate code of conduct for US Companies doing business in NI which have to follow them. These principles aren’t binding but they are complete by US companies.

Code of conduct of the bar in England and Wales: Barristers in England have to follow it. It is made by the barrister themselves, it’s a private origin.

All these kind of text even if they aren’t binding they are part of English law because it’s becoming a part of soft law.