Research On Customs And Usages Of International Trade As The Source Of Law

Customs and usages of international trade are traditional practices and rules with clear content, which formed and developed gradually in the long-term international trade practice. They are commonly accepted and broadly applied, which can regulate the rights and responsibilities between the equal subjects in the international trade activities. Customs and usages of international trade that focus on the needs of development of international trade, play a unique and important role in the international business transaction and provide rules for the subjects of international trade, which make the state of customs and usages of international trade become highlighting in the field of justice and international commercial arbitration. But there are many arguments on the concept, the scope, the legal nature and the judicial application of customs and usages of international trade, particularly on the research of customs and usages of international trade as one source of law.First of all, this thesis starts with the basic concept of customs and usages of international trade. By the analysis of various countries’ laws and many scholars viewpoint, the thesis sums up the essential features of customs and usages of international trade, and then defines its connotation that also be compared with the concept of customary international economic law and Law Merchant. In a broad sense, customs and usages of international trade cover the written conventions edited by international organizations, international standard contracts,model law, rules in the international treaties and unwritten conventions in practice.The second section deals with the development of customs and usages of international trade as one source of law in historical perspective, and expounds respectively the historical backgrounds, the form of expression and the applicable condition of customs and usages of international trade in different phases. As one source of law, customs and usages of international trade not only are deeply rooted in practice,but also play an important role in modern systems of law and international legislation, especially in the field of commercial law and commercial arbitration. The third part is to discuss the controversial issues of the legal nature of customs and usages of international trade, including the affirmance theory, the quasi-juristic theory and the denial theory. Then it consists of three parts to start arguments:the reflection of the principle of will autonomy, the choice of the theory of legal sources based on judicial perspective, and the realistic significance for the judicial adjudicate. The conclusion is that customs and usages of international trade is an informal source of law.Finally, the thesis explores the problem of judicial application of customs and usages of international trade as an informal source of law. The main means to solve international commercial disputes are negotiation, mediation, arbitration and litigation, among which international commercial arbitration and international commercial litigation are the two most effective ways. However, in view of the arbitration being self-contained and diversified, the thesis focuses on the judicial application, namely the mode of judicial application and the coordination about customs and usages of international trade and the other sources of law, in hope of serving for the application of customs and usages of international trade.