An RSDE article on hard law, soft law and the regulation of sustainability
A law that takes 25 years to come into force and a sustainability label that reaches the package in a few months now share the same conversation. That is what the article "Hard law and soft law in sustainability regulation: complementarity and tension between normative sources" is about, by Clara Egydio Previdi de Barros and Fábio Martins Bonilha Curi, published in issue 38 of the Revista Semestral de Direito Empresarial, from the UERJ Law School (January to June 2026), in Portuguese.
Who writes and what the article seeks
Clara Egydio Previdi de Barros holds a law degree from PUC Campinas, and Fábio Martins Bonilha Curi, who holds a doctorate in Commercial Law from USP, is a professor at FACAMP and PUC Campinas. The stated goal is to analyze the trajectory of international discussions and the consolidation of the concepts of sustainability and ESG, examining the main normative sources of the topic. The method combines doctrinal and historical research, of a deductive nature, with analysis of public data on norms.
The premise is a deadlock. There is climate urgency and growing social pressure, but the law is slow and often reactive, while companies operate in fast cycles and look for reputation, risk and financing tools. The article asks how the two logics meet.
The findings
The first is historical. According to the authors, sustainability arises from the combination of science, social pressure and geopolitical conflict, not as a simple good practice. The triggers are the Club of Rome's "The Limits to Growth" and Rachel Carson's "Silent Spring". The Stockholm Conference, in 1972, brings the topic to the multilateral agenda, with 26 principles and 109 recommendations, and exposes the tension between industrialized and developing countries. The 1987 Brundtland Report consolidates sustainable development, and Rio 92 expands the normative package. In all these milestones, the authors note, discourse continues, but implementation is uneven and results fall short of the urgency, which feeds skepticism.
The second is conceptual. Sustainability, sustainable development and ESG are not synonyms. Sustainability is a transdisciplinary concept, sustainable development is a guiding formulation, and ESG, like John Elkington's Triple Bottom Line (1997), is a model to operationalize these ideas. ESG appears in 2004, in the "Who Cares Wins" report, and, according to the authors, replaces the Triple Bottom Line's "profit" with governance, which indicates that the market starts to treat sustainability less as an outcome and more as a structure of decision, control and transparency. ESG speaks the language of the investor, the consumer and the regulator, but, as a model, it can simplify and distort, and does not always prove material impact.
The third is the division between normative sources. Hard law gathers binding norms, such as ratified treaties and domestic laws, and creates duties and enables accountability. Its weakness in the environmental field is time. The article shows this with Brazilian examples: for the Paris Agreement, the path runs from the 1992 Framework Convention to the decree that enacted it, in 2017, about 25 years, and the National Solid Waste Policy, discussed since 1991, was only approved in 2010. For the authors, the delay is not a bureaucratic defect but a sign that sustainability requires redistributing costs and reorganizing production, which generates resistance.
It is in this gap that soft law gains centrality. It brings together rules of less binding normative value: unratified agreements, certifications, ratings, the 2030 Agenda, which the UN itself calls a "global call", and private standards such as GRI, IFRS and S&P Global's assessment. Use is voluntary, but the article recalls that those who ignore these standards may face private sanctions of great impact. Soft law standardizes information, sets expectations and creates reputational and financial incentives, at a speed the law does not have.
The fourth is the critical core of the work. The multiplication of metrics creates a paradox: more information can bring transparency, but also inconsistency, noise and arbitrariness. The article compares, based on a 2023 study cited in the text, the scores of two agencies, S&P and Refinitiv (now LSEG), for four Brazilian banks. The pillar weights differ (S&P gives 55% to governance, and Refinitiv, 36%), and the rankings flip: under Refinitiv, Santander is first and Banco do Brasil last, while under S&P Santander is last. Because a company can choose the standards that favor it most, the article speaks of "shopping" for frameworks and of a greenwashing that is not only advertising. In the authors' words, the problem stops being "lying" and becomes "measuring conveniently". The 2024 sustainability reports of Natura and Brasilseg, which combine GRI, SDGs, IFRS and other references, illustrate the diversity of sources. The lay consumer is the most vulnerable in this scenario, because they meet labels and scores without knowing what lies behind them.
The conclusion is that hard law and soft law work together. The first gives binding force and legitimacy, and the second gives speed, standardization and reputational incentive. The most realistic path, the authors say, is not to choose between State and market, but to build hybrid arrangements, with the law as the backbone (minimum duties and accountability) and soft law as operational infrastructure (disclosure, comparability and transition instruments). Success depends less on more labels and more on methodological convergence, transparency about weights and scope and robust verification mechanisms. Without that, the article warns, the risk is a merely narrative sustainability.
To reflect from it
- Which standards the organization uses and why. If the choice of GRI, IFRS or a rating is explained by the business's materiality, it holds. If it is explained by the result that favors it most, it is the case the article describes as "shopping" for frameworks.
- What lies behind a score. Before using a rating in communication or in a credit decision, it is worth asking about scope, weights and method, because the same company can sit at the top of one ranking and at the bottom of another.
- Where soft law has already become obligation. In Brazil, the CVM made adoption of the IFRS S1 and S2 standards voluntary and reopened the consultation on mandatory reporting, as our text on the subject shows, and GRI and IFRS are read as complementary, as in the text on GRI in Brazil. The article treats soft law as voluntary, and that border between voluntary and binding is moving.
- Who verifies. Voluntary standards are worth as much as the auditability of the data behind them. Reports with organized data, clear owners and assurance withstand distrust better.
- For whom one communicates. If the lay consumer is the most exposed, the responsibility of those who communicate is to translate what the label or score means, without hiding what it does not cover.
- The limits of the article itself. It is a doctrinal and historical work, with selected examples, not broad empirical research. The table of law timelines and the case of the four banks illustrate the argument, and do not prove it for the whole market.
Reference
BARROS, Clara Egydio Previdi de; CURI, Fábio Martins Bonilha. Hard law e soft law na regulação da sustentabilidade: complementaridade e tensão entre fontes normativas. Revista Semestral de Direito Empresarial, Rio de Janeiro, n. 38, p. 189-218, jan./jun. 2026. ISSN 1983-5264. The journal is licensed under Creative Commons (attribution, non-commercial, share-alike).
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Write to contato@kickgroup.com.br. This text summarizes and comments on the cited article, for information, and was updated as of November 5, 2026.