Trade Usages in ICC Arbitration

Abstract

In this chapter’s analysis of ICC arbitral awards, two different interpretations of usages can be observed: on the one hand, the strict notion of a trade usage as a repeated practice; on the other, a broad notion of usage as encompassing both traditional trade usages and general principles of the law, distilled through the comparison of various legal systems. Noting the ability of usages to adapt quickly to societal changes, the chapter concludes that these two interpretations of usages seem to serve two different purposes: the restrictive interpretation serves to establish the meaning and content of the parties’ contract, while the broad interpretation ensures that the governing law is applied in a way that takes account of the international context in which the contract was made. Both interpretations contribute to a conception of usages as a set of general rules for international arbitration.