Study Of The Application Of International Commercial Usages In Judicial Practice In China

International commercial usages play a very important role in cross-border trade relations, but there is little legislation about international commercial usages in China’s laws and there are a lot of problems existing in the applicable of international usages in judicial practice in China. All these factors have hindered the application of international usages in China. The study scope related to international commercial usages is very wide and the author could not make a comprehensive and deep research about it as the author has a limited academic ability. Therefore, this paper does not attempt to do study of all aspects of international commercial usages. Instead, the paper makes research from the perspective of the application of international commercial usages in China’s judicial practice. The paper also tries to make analysis of the position, the problems in application and their causes of the international commercial usages in our judicial practice. In addition to the introduction and the conclusion, this paper can be divided into four chapters and the main contents of each part are as follows:The first chapter is a brief summary of the courts’ application of international commercial usages. This paper starts from the Notification of the Application of Law in the Coutts’ Hearing of the Foreign-related Commercial Cases Issued by the Supreme People’s Court (2001-2002) and combines with 20 cases of 2007-2012 from foreign-related commercial and maritime trail website. Through comparison of data from these two groups of cases, the paper analyzes the application of international commercial usages in foreign-related commercial trail by the court in different time and leads to many problems concerning the application of international commercial usages.The second chapter is about the international commercial usages as the source of law. The paper first starts from the nature and characteristics of international commercial usages and analyzes to determine if international commercial usages are source of law in our country. Then the paper makes a conclusion that the international commercial usages are sources of our country. Then the paper discusses what kind of source of law the international commercial usages are and the order of application of international commercial usages according to the law in China.The third chapter is about the application channels of international commercial usages. The paper discusses the application channels of international commercial usages in detail in terms of the application subject of international commercial usages including the choice to apply by parties, the application by arbitral tribunal and the application by the court. This paper discusses the specific ways to apply by these subjects especially the ways of application by court in the context of the current law.The fourth chapter is about the reasons why international commercial usages are not widely applicable in judicial practice. From four cases concerning international commercial usages, the paper concludes that in the hearing of foreign-related cases, the application of international commercial usages is all because of the agreement of parties and is all related to disputes of letters of credit. The court applies international commercial usages as tools to solve substantive issues. International commercial usages cannot be used alone in foreign-related cases because of its limitations in structure and content. Besides, the system of the court in China also affects the frequency of application of international commercial usages.