«Soft law» in the system of regulation of corporate relations

Abstract

In modern terms, «soft law» is turning into an effective tool for regulating corporate and, in general, economic relations at the national level. International corporate governance standards serve as a benchmark for the development of corporate law in all countries of the world. The subject of «lawmaking» in this case is not a state, but an international organization that formulates and adopts recommendation acts.

The problem of «soft law» in modern legal science is very popular; it is devoted to a considerable number of works of foreign and domestic scientists, in particular, G. M. Velyminov, T. M. Neshataeva, J. B. Fogelson, T. Matveeva and others. For the first time in the post-Soviet space the problem of «soft» corporate law was raised by S. O. Chekhovskaja in 2012.

The purpose of the article is to define the role of «soft law» in the system of regulation of corporate relations.

There are three basic approaches to understanding «soft law» in the legal science:

1) «soft law» is reduced to recommendatory acts of international intergovernmental organizations;

2) «soft law» covers both documents of international intergovernmental organizations, as well as non-governmental organizations, in particular, Principles of international commercial agreements of UNIDROIT, ICC acts, etc .;

3) the most widespread approach, in which «soft law» is considered instruments of non-state regulation, both international and national.

The greatest influence of soft law acts has been such a part of corporate relations as corporate governance relations. The «soft law» acts in the field of corporate governance include: The G20 / Organization for Economic Cooperation and Development (OECD) Principles of Corporate Governance 2015, Declaration on International Investments and Multinational Enterprises 1976 and the OECD Guidelines for Multinational Enterprises 2011 as a component of the latter.

The «soft» standards of corporate governance, which are legally non-binding in nature, due to the authority of the organization they have developed, are used by the states to reform corporate law. The paper proposes to distinguish between «soft law» acts and normative legal acts of recommendation nature, such as those approved by the decisions of the National Securities and Stock Market Commission dated July 24, 2014 No. 955 Principles of Corporate Governance.

Soft law recommendations of international organizations, and OECD, in particular, have an impact both on the member states of the organization and on all other states and their private entities. Attention is drawn to the practice of voluntarily taking States' international obligations to comply with soft law. So, Ukraine is in accordance with Clause «c» of Part 1 of Art. 387 of the Association Agreement with the EU has committed itself to further developing corporate governance policies in line with international standards, namely the OECD Principles.

Voluntary compliance with international corporate governance standards of corporations interested in good business reputation and increasing its competitiveness leads to the formation of corporate business practices in corporate relations.

Today «soft law» defines the vector of development of corporate relations at the national level, and also serves as a tool for harmonization of national laws of different countries of the world. Soft law regulates corporate relations indirectly - through the influence on the development of national legislation, as well as directly - through the voluntary introduction by corporations of international standards in local regulations statutes, regulations, principles (codes) of corporate governance, as well as the formation of international commercial usages.