| As a basis for settling international commercial usages,international commercial usages have become increasingly important in international economic and trade cooperation along the Belt and Road.Although many countries have provided for international commercial usages in their legislation,the judicial practice of usages in foreign-related civil and commercial fields is plagued by many problems because the concept,nature and application of international commercial usages have not yet been unified at the theoretical level.Taking the concept and nature of international commercial usages as the starting point,this article analyzes the current status of its legislation and judicial practice,and discusses the problems and solutions arising from its judicial application,with a view to providing suggestions for improving the judicial application of usages in China.International commercial usages are formed spontaneously based on the long-term practice of business subjects,widely observed and generally accepted by business groups,and have binding effect on the parties.Regarding the legal nature of international commercial usages,there are three main arguments in academic circles,namely,"affirmative","negative" and "quasi-legal".This article advocates that international commercial usages have the normative effect of arbitrary law and can be chosen by the parties as the basis for resolving international commercial disputes.Based on the respect for the autonomy of the parties to a transaction,countries allow the parties to choose the applicable law for foreign commercial relations on their own.When an international treaty provides for a commercial dispute,the international treaty takes precedence;if the international treaty does not provide for it and a peremptory norm exists in domestic law,domestic law takes precedence;if neither the international treaty nor the peremptory norm of domestic law provides for it,international commercial practice may be applied,and if the parties choose to apply the practice,party autonomy takes precedence,provided that the application of the practice will not conflict with the peremptory provisions and public order.The identification of international commercial usages is mainly based on the subjective and objective criteria in Article 9 of CISG,which require that the parties to a transaction reach a consensual agreement to choose a practice,and the objective criteria require that the practice is known or should be known by both parties and is widely known and regularly observed by the subjects of transactions of similar contracts in a particular field.In terms of ascertainment,if the parties choose to apply the practice,the parties are obliged to ascertain the specific content of the practice,and if necessary,the judge may ascertain it ex officio.China’s general civil legislation does not contain explicit provisions on international commercial usages,and several special laws provide for their application in a complementary manner.In view of the ambiguity of the connotation and extension of international commercial usages,the lack of provisions for parties to choose the way of application,the lack of clear identification criteria and mechanisms,and the improper application of public order reservations in China’s legislation and judicial system,it is proposed that provisions be added to the law to explain the connotation and extension of international commercial usages,clarify the way of application,identification criteria and mechanisms of international commercial usages,and prudently apply public order reservations.The proposal is to further improve the judicial application of international commercial usages in China. |
