Bamboo, or governance through soft law: hybridity, legitimacy, and sustainability

Abstract

2016; Nelken et al. 2020); or soft institutions such as the numerous sectoral dialogues between the EU and China (Snyder 2009). Standards are ubiquitous; they translate general objectives into specific rules and are an indispensable, albeit often controversial, aspect of regulation (Snyder 2021c). Soft law standards may be adopted by numerous actors: public, private, or mixed, and local, national, regional, international, or transnational (Schepel 2005). Such actors in global financial and product markets have been called 'the new global rulers' (Büthe and Mattli 2011). This shift has been ascribed to five interconnected, mutually reinforcing institutional forces: 'scientifization, marketization, organizing (including standards and socialization), rationalization, and democracy' (Djelic 2011), which together 'foster a governance culture that heavily relies on soft rules' (Djelic and Sahlin-Andersson 2006, p. 23). These forces are spread unevenly within countries and around the world: witness China's Belt and Road Initiative (BRI) (Fang and Nolan 2019), which so far relies almost entirely on soft law memoranda of understanding (MoU) and standards, except for very technical measures, for example in the railway sector (Snyder 2021b(Snyder , 2021cWang 2021).Soft law standards may be given legal effect by courts or other dispute procedures, or by 'triangulation' via certification or accreditation. For example, the CJEU in James Elliott Construction (C-613/14) concluded that harmonized standards formed part of EU law that the Court could interpret in the context of a preliminary ruling. The WTO Appellate Body (AB) in EC-Hormones (WTO 1998) converted non-binding Codex Alimentarius food safety standards into standards that have important legal effects such that they are binding de facto. Similarly, the AB in US-Gambling (WTO 2005) addressed standards of 'right' and 'wrong' in analyzing the 'public morals' exception in Article XX(a) GATT. Chinese national food safety standards have legal force; other food safety standards, such as non-legally-binding organic food standards are 'expressed in China in legal form by certification and accreditation measures' (Snyder 2020, p. 19).Soft law occupies a substantial place in EU legal scholarship; only a few major influences on this chapter are mentioned here. The first book-length treatment (Senden 2004) introduced the concept of soft law in EC law, dissected its categories and functions, and discussed several legal issues of EC soft law, such as legally binding force, competence to adopt soft law, and indirect legal effects for legislature, the judiciary, and the executive. It concluded that soft law was only a limited alternative to legislation; the principle of conferred powers (competence) should apply except in its function of legality; and that the European Parliament (EP) should play a greater role in its adoption. It recommended that soft law instruments should be limited, classified, and used more consistently; that their legal effects should be clarified; and that proced...