On The Application Of International Trade Usages In The Courts

International trade usage is the general term for substantial rules,principles,standards and common practice that have been developed by the international community on the basis of long-term commercial and trade practice to solve international commercial disputes.International trade usage does not belong to domestic or international law in the traditional sense.It also has the attributes of transnational commercial law,modern merchant law,and non-state law.The author believes that the international trade usage itself does not have the nature of law.The source of its normative force is from party autonomy.From international law perspective,the author analyzes the relevant international law instruments governing international commercial contracts in chronological order,including ULFC(1964),CISG(1980),PICC(1994)and The Hague Principles(2015);and then summarizes terms or articles related to applicable issues of international trade usages.From comparative law perspective,the author analyzes laws or regulations and judicial practices concerning the application of trade usages in the United Kingdom,the United States and Germany.Common law and civil law countries have different views on the issue of whether trade usages are legal sources,but they all allow the parties to expressly choose to apply trade usages.At the same time,they recognize that trade usages can be used as an interpretive tool for contracts interpretation to determine the intention of contract parties.Therefore,in the case of application of the internal law and the parties have not expressly chosen to apply trade usages,the court implicitly infers the party's intention to apply trade usages through the contract interpretation rules.The United States and Germany are parties to the CISG.The author also describes how courts of United States and German applied international trade usages in case the CISG applied.From the perspective of current legal framework and judicial practices in China,according to the different applicable law of commercial contracts,the court could take the following three approaches when applying international trade usages.The author puts forward suggestions for improving the application of international trade usages under the corresponding channels:First,the parties expressly choose to apply international trade usages,including the choosing international trade usages as the applicable law and conventionally incorporating the trade usages into the contract.In principle,PRC laws have not allowed parties to choose non-state laws as the governing law of the contract,but the author believes that the party autonomy should be respected so that parties should be entitled to expressly choose international trade usages as applicable law.The Hague Principles provide reference for PRC laws.If involved dispute is not within the scope of the chosen international trade usage,the parties may choose to apply the applicable law separately.The dispute shall be supplemented by the conflict rules of lex fori when parties failed to reach agreements.For international trade usages agreed by the parties to be incorporated in the contract,international trade usages should be interpreted as part of the parties' contracts.As long as they do not violate the conditions of contract invalidity stipulated in Article 52 of the PRC's Contract Law,they should become the basis for handling disputes.Second,International trade usages apply because of the application of international treaties.The main international treaty here is CISG.Our courts are still inclined to apply by the express choice of trade usages by the parties.The author has not found that any court actively applied international trade usages in accordance with Article 9(2)of the CISG through implied terms.Thirdly,when the parties have not expressly chosen to apply international trade usages,according to Articles 61 and 125 of the PRC's Contract Law,actually,it is also possible to apply the trade usages through the interpretation of the contract.However,because our country's contract interpretation rules are relatively simple,we still need to improve the rules of contract interpretation to recognize international trade usages as an explanatory tool to fill contractual loopholes so as to accept the parties' implicit choice of international trade usages.Finally,judicial interpretation can be used to unify and clarify the applicable rules of international trade usages in China,so as to standardize judicial practice.