Trade Usages as Transnational Law
Fabien Gelinas (ed), Trade Usages and Implied Terms in the Age of Arbitration (Oxford University Press 2016)
26 Pages Posted: 29 Nov 2016
Date Written: November 22, 2016
Abstract
In examining trade usages in the transnational context, this chapter takes as its starting point the perspective of international commercial arbitration, where a narrow conception of usages has been favoured for reasons having to do with nationalized private international law, rather than reasons having currency in international arbitration. The general rules and principles that emerge from arbitral practice — a part of business practice — are better understood on a continuum with the narrower trade usages that represent a kind of lex specialis in various industries. A broader conception of trade usages is consistent with the representation of usages in international instruments and would likely provide a better account of current arbitral practice. Trade usages in the transnational context may, therefore, be viewed as comprising not only normative practices peculiar to particular trades, industries, or places, but also rules and principles of international commercial contracts whose recognition affects parties’ reasonable expectations.
Keywords: Usages, transnational law, international arbitration, state law, general principles, arbitral practice, reasonable expectations
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