Behind every mask… is another mask – structural considerations on trade usages in international commercial law – dissolving some confusions

Botond Zoltán Petres ()
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Botond Zoltán Petres: Faculty of Law and Faculty of Economics and Business Administration, Babeș-Bolyai University, Cluj-Napoca, Romania

Juridical Tribune - Review of Comparative and International Law, 2020, vol. 10, issue 2, 289-307

Abstract: It is recognized for millenniums already that outside of the written and codified law, custom can also function as a source of law if certain criteria are fulfilled. Even though modern lawmaking in civil law controls the possible situations when usages can intervene, in case of international commercial law the application of usages is much wider. As international trade was growing in the past century in an unprecedented manner, the number of international transactions grew exponentially. Also, the field of international commercial law consists mostly of soft-law sources due to the fact that states hardly obtain a consensus in regulation. Therefore, the usage created by the general practice of actors of a given field, and also the practice which is not based on contractual provisions between trading partners shall be taken into account. The structure of usage remained mostly the same for centuries, but due to that, this consuetudo might have fallen into desuetude. The problem with these is the fine line that exists between custom and usage, the existence of a usage and a practice which is unable to act as a source of law. We only see the mask – and behind every mask... is another mask

Keywords: trade usages; international commercial law; practice; implied terms; INCOTERMS; conflict between usage and practice. (search for similar items in EconPapers)
JEL-codes: K12 K15 K22 K33 (search for similar items in EconPapers)
Date: 2020
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