Full Description
If a dispute between commercial parties reaches the stage of arbitration, the cause is usually ambiguous contract terms. The arbitrator often resolves the dispute by applying trade usages, either to interpret the ambiguous terms or to determine what the given contract's terms really are. This recourse to trade usages does not create many problems on the domestic level. However, international arbitrations are far more complex and confusing.
Trade Usages and Implied Terms in the Age of Arbitration provides a clear explanation of how usages, and more generally the implicit or implied content of international commercial contracts, are approached by some of the most influential legal systems in the world. Building on these approaches and taking account of arbitral practice, this book explores possible conceptual frameworks to help shape the emerging transnational law of trade usage. Part I covers the treatment and conceptual grounding of usages and implied terms in the positive law of influential jurisdictions. Part II defines the approach to usages and implied terms adopted in the design and implementation of important uniform law instruments dealing with international business contracts, as well as in the practice of international commercial arbitration. Part III concludes the book with an outline of what the conceptual grounding of trade usages could be in the transnational law of commercial contracts.
Contents
Contributors
Foreword
Introduction
Fabien Gélinas
Part I - National Perspectives on Usages and Implied Terms
1. Customs and Usages in England: Achieving Interpretive Accuracy by Giving Effect to Unexpressed Intent
Geoff R. Hall
2. Usages and Implied Terms under French and Belgian Positive Law: A Subjective Approach Tending toward Objectivity
Lydie Van Muylem
3. White Space, Implied Terms, and the Concept of Usage in Quebec
Marie-Claude Rigaud
4. Usages and Implied Terms in Italy
Luca G. Radicati di Brozolo & Giacomo Marchisio
5. Not Merely Facts: Trade Usages in German Contract Law
Helge Dedek
6. Usages and Implied Terms in the United States
Christopher R. Drahozal
Part II - Trade Usages and Implied Terms in Transnational Law
7. Trade Usages in the Convention on Contracts for the International Sale of Goods
Geneviève Saumier
8. Usages and Implied Obligations under the UNIDROIT Principles of International Commercial Contracts
Lauro Gama, Jr.
9. Trade Usages in ICC Arbitration
Emmanuel Jolivet, Giacomo Marchisio & Fabien Gélinas
Part III - Toward a Transnational Law of Trade Usages
10. The Law Merchant and Choice of Law
H. Patrick Glenn
11. Trade Usages as Transnational Law
Fabien Gélinas
Appendix - Provisions on Trade Usages in International Arbitration and Transnational Contract Instruments
Index
