Codes and Model Laws: A EU-US Comparison of Their Role in Shaping Company Law

Abstract

This article analyses the particular role played by soft law instruments (such as codes of corporate governance, codes of conduct, model law and other non-binding instruments) in sharping the legal framework applicable to European and American companies. It concludes that soft law is a very popular and successful girl nowadays, for legitimate reasons, but one that brings about a series of concerns as well. This article finds that soft law instruments upset the traditional hierarchy of sources of law and the distinction between civil law and common law countries. It also observes that soft law converges, and, in turn, provokes further convergence of the legal framework. Finally, it exemplifies (and criticizes) instances of transformation of soft law into hard law, accompanied by a general phenomenon of hardening of the legal framework, including because instruments sometimes labelled ‘soft law’ are in reality closer in effect to hard law. soft law, company law, corporate governance codes, codes of conduct, directives, regulations, recommendations, green papers, comply or explain, EMCA, MBCA, ALI Principles