Commercial Norms, Commercial Codes, and International Commercial Arbitration

Abstract

The article defends the incorporation of commercial norms into commercial codes, through provisions such as statute 1-205 of the Uniform Commercial Code. It finds significant reliance on trade usages in international commercial arbitration: institutional rules and arbitration statutes frequently require arbitrators to consider trade usages in resolving international disputes, and the available evidence suggests that arbitrators in fact do so. There is much less evidence that arbitrators rely on prior dealings between the parties. Because of the competitive market in international dispute resolution, the reliance on commercial norms by international arbitrators suggests that the benefits of such reliance -- such as providing information to generalist decision makers -- exceed any costs -- such as from precluding extralegal enforcement of aspects of the parties' agreement. As a result, the empirical evidence presented in the article supports Article 2's "incorporation strategy," at least as to usages of trade.