Reimagining usages of international trade in the era of artificial intelligence (AI)

Abstract

Trade usages are a pivotal building block in international commercial law. Besides serving as a useful tool to aid interpretation of commercial contracts, trade usages, depending on the applicable laws and rules, are frequently deemed binding on the parties, even in the absence of the parties’ knowledge or awareness. The normative value that tends to be assigned to trade usages is justified on various grounds, including that the community of traders, and not the legislator(s), is in the best position to formulate the most efficient rules to govern the traders’ transactions. Nevertheless, trade usages have been exposed to various forms of criticism, including that, in practice, their existence is difficult to prove and that courts and arbitral tribunals have been willing to accept the existence of trade usages based on flimsy evidence. This article first explores the very concept of trade usages, focusing on the following questions: (i) how are trade usages defined, if at all; (ii) what is the theoretical foundation of trade usages; (iii) what justifies assigning normative value to trade usages; and (iv) what are the critiques directed towards trade usages? Second, the article explores the possibility of relying on artificial intelligence technology in order to maximize the efficiency of usages of international trade.