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Trade Usages and Implied Terms in the Age of Arbitration$
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Fabien Gélinas

Print publication date: 2016

Print ISBN-13: 9780199916016

Published to Oxford Scholarship Online: May 2016

DOI: 10.1093/acprof:oso/9780199916016.001.0001

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Trade Usages as Transnational Law

Trade Usages as Transnational Law

(p.253) Chapter 11 Trade Usages as Transnational Law
Trade Usages and Implied Terms in the Age of Arbitration

Fabien Gélinas

Oxford University Press

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 favored 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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