Trade Usages and Implied Terms in the Age of Arbitration

by Fabien Gélinas (Editor)

Overview

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.

Product Details

ISBN-13:	9780190237066
Publisher:	Oxford University Press
Publication date:	04/08/2016
Sold by:	Barnes & Noble
Format:	eBook
Pages:	400
File size:	478 KB

About the Author

Fabien Gélinas is the Sir William C. Macdonald Professor of Law at McGill University, where he previously served as Associate Dean of Law and Director of the Institute of Comparative Law. He was formerly General Counsel at the International Court of Arbitration of the International Chamber of Commerce and is now chair of the Canadian Arbitration Committee. He teaches international arbitration and contract law in both the civil law and the common law tradition and publishes widely on these subjects. A former law clerk to Justice Charles Doherty Gonthier of Canada's Supreme Court, he holds degrees from the University of Montreal and the Paris School of diplomatic and strategic studies, and a D.Phil. from Oxford University. He acts regularly as arbitrator in international commercial matters.

Table of 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

Editorial Reviews

"Overall, Trade Usages and Implied Term in the Age of Arbitration offers a useful summary of the application of trade usages in major legal systems, while not shying away from the complexity and difficult questions the employment of such usages invites in the transnational context. It will therefore undoubtedly prove helpful to both practitioners of transnational arbitration, as well as more academically minded lawyers." — Epaminontas E. Triantafilou & Marina Boterashvili, ITA in Review

"This fine work on trade usage and implied terms presents an intellectual smorgasbord of robust analysis on some of the most vexing questions in international trade and investment. Taking a comparative perspective to the law of cross-border economic relations, the book will assist all who seek a better understanding of questions encountered in the day-to-day tumult of arbitration practice, as well as deeper insights into the doctrinal dilemmas facing private dispute resolution. A first-rate piece of scholarship." - Professor William W. Park, Boston University. General Editor, Arbitration International

From the Publisher