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International commercial practices applicable to research

Author: MoLan
Tutor: HeLi
School: Fudan University
Course: International Law
Keywords: International Commercial Usage Law Merchant Application of Law Legal Sources
CLC: D996.1
Type: Master's thesis
Year: 2008
Downloads: 369
Quote: 3
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Abstract


A lot of trade usages have been used in international commercial transactions, some of them have been codified, while others are still kept in the original forms. All of these usages are widely accepted in commercial areas, including trade, transportation, and goods inspection, insurance and banking settlement etc, and play important roles not only of interpretation tools but also as norms to settle disputes between parties. However, due to the fact that China is lack of sufficient experiences of making good use of usages, both legislation and judicial practice in China could not provide strong weapons to promote foreign relationship and protect interests of merchants participating international trade. As a result, this paper analyzes some issues which have significant meaning to guide the practice of application of international commercial usages.Chapter 1 talks about several basic issues on application of international commercial usages, distinguishes the meaning between usage, practice and custom, classifies the definition and nature of international commercial usage, and analyzes the channels in which parties to contract or judges and arbitrators use international commercial usages.Chapter 2 discusses application of discretionary usages and mandatory usages. The core of application of usages is its legal basis and form of application. This chapter studies the relationship between usage and international treaty and domestic law, points that usage is a reflection of the principle of parties autonomy, so it can be applied as a discretionary rule via choice of parties to guide the implementation of obligation of contract, furthermore, such application relates to the issues of burden of proof and restriction of choice, which includes mandatory domestic rules, public interest as well as reasonable criteria. On the other hand, as discussed in the chapter 1, in light of the fact that usages regularly observed within the particular trade to which the parties belong and widely known in international trade, international treaties and domestic laws have given legal effect to trade usage, which also accepted by judges and arbitrators in the practice, so this paper continues to discuss the condition that usages have impliedly applicable to contract between parties even the contract is absent about application of trade usages based on case studies. Chapter 3 analyzes application of interpretative and normative of trade usages, and researches such double function of trade usages. Tradition opinion held that the common practice of a particular trade was primarily used to define specific technical terms or to fill in gaps left by the parties’ agreement. With an in-depth study of trade usages, United Nations Convention on Contracts for the International Contracts for the International Sales of Good, the Uniform Commercial Code have changed this approach by treating trade usage as an essential part of the agreement, thus broaden the applicable scope of trade usage and reinforce the legal status of trade usage. Moreover, in other jurisdiction, the trade usages can be used as supplementary to law, even directly as a kind of applicable law. This chapter explains the reasonableness and necessity of trade usage transiting from purely supplementary instrument to part of the agreement itself.Chapter 4 focuses on some controversial problems concerning the application of international commercial usages in China. This chapter reviews Article 142 of General Principles of the Civil Law of the People’s Republic of China and discusses major criticisms on the application order and scope of international commercial usage, and also put forward some proposals to the application of international commercial usages.The last part of this paper summaries the content and purpose of research of international commercial usage.

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CLC: > Political, legal > Legal > International law > International Economic Law > International Business Law ( International Trade Law )
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