Soft Law and Modern Taxation: A Russian Point of View

What is the soft-law phenomenon? Are there objective facts for its existence in the sphere of regulatory activity of tax relations? How are the two related – the hard law and soft law? What is the regulatory potential of the soft law instruments? What are the prospects for further use of the soft law instruments in trans-border and domestic legal sphere? Does the soft law entail a threat for stability, certainty, and uniformity of the international and domestic order or is it on the contrary an effective regulator for social interactions? In the academic practice, these questions are addressed in longstanding and lively discussions, which in the past few years, have become noticeably more active. In the second section of this article, I look at the reasons for the emergence of soft-law concept in international law literature. I also inter-relate evolution of soft law with the evolved changes in the cross-border taxation regimes. In section three, I analyze conceptual foundations of discussion of the binary approach versus relative normativity. I note that today in the Russian legal science there came about premises to move away from legal positivism – a shift which, due to a number of causes, has now been entrenched in Russia – towards non-positive legal schools and approaches. In section four, I articulate an original definition of soft law. There are very different documents that are included into the system of soft law. Because of this, when starting an academic discussion on this subject, it is first of all necessary to formulate the author’s understanding of the limits of soft law (i.e. its scope). In that section I also differentiate soft law and hard law. In section five, I argue, that drawing on soft-law concept when at the level of international legal systems allows us to include into the legal discourse various (and now and again quite diverse) documents, which are not related to the formal sources of law, and have no legally binding force, but directly, or in some way, become drawn on in the difficult and multi-level regulation of behaviour. In section six, I look at the functional and regulatory potential of soft law, which can be used as an addition and as an alternative to hard law, as well as the auxiliary rezurvuar for the interpretation of legal norms; as means for the development of legal norms; as evidence of the existence of opinion juris. In Conclusion I conclude that soft law is a very effective tool to regulate cross-border tax. Soft law helps reduce the level of legal uncertainty, sometimes speaking only alternative to the complete absence of any regulation of people’ behaviour.