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Application of Trade Usages in International Institutional Arbitration – Some Reflections

Application of Trade Usages in International Institutional Arbitration – Some Reflections TOLGA AYOLU* Introduction Unlike some national laws that treat usages as secondary sources of law1, international commercial law confers trade usages a more active role compared to those national legal systems. This active and significant role materializes in two different ways. Firstly, trade usages may be recognized as a part of the contract between the parties, where governing law permits such an application, under the "implied terms" doctrine that governs the common law jurisdictions. Secondly, international arbitration rules may provide that arbitrators shall, along with the national and/or a-national substantive rules applicable to the merits of the dispute, take into account the trade usages relevant with the transaction. This article aims to discuss whether by referring to international institutional arbitration rules which dictate that arbitrators shall take into account the relevant trade usages along with the national and/or a-national substantive rules applicable to the merits of the dispute, may the parties be deemed to incorporate these usages into their contract, regardless of the effect granted to them by the applicable law/ rules of law. Dr. iur. Tolga AYOLU, Associate Professor in Galatasaray University Faculty of Law, Department of Commercial Law. Pursuant to art. 1/2 of the Turkish Civil http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png ASA Bulletin Kluwer Law International

Application of Trade Usages in International Institutional Arbitration – Some Reflections

Ayoğlu
ASA Bulletin , Volume 30 (3) – Sep 1, 2012
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Kluwer Law International
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Copyright © Kluwer Law International
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1010-9153
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Abstract

TOLGA AYOLU* Introduction Unlike some national laws that treat usages as secondary sources of law1, international commercial law confers trade usages a more active role compared to those national legal systems. This active and significant role materializes in two different ways. Firstly, trade usages may be recognized as a part of the contract between the parties, where governing law permits such an application, under the "implied terms" doctrine that governs the common law jurisdictions. Secondly, international arbitration rules may provide that arbitrators shall, along with the national and/or a-national substantive rules applicable to the merits of the dispute, take into account the trade usages relevant with the transaction. This article aims to discuss whether by referring to international institutional arbitration rules which dictate that arbitrators shall take into account the relevant trade usages along with the national and/or a-national substantive rules applicable to the merits of the dispute, may the parties be deemed to incorporate these usages into their contract, regardless of the effect granted to them by the applicable law/ rules of law. Dr. iur. Tolga AYOLU, Associate Professor in Galatasaray University Faculty of Law, Department of Commercial Law. Pursuant to art. 1/2 of the Turkish Civil

Journal

ASA Bulletin – Kluwer Law International

Published: Sep 1, 2012

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