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30 Ariz. J. Int'l & Comp. L. 423 (2013-2014)
Drafting Commercial Practices and the Growth of Commercial Contract Law

handle is hein.journals/ajicl30 and id is 465 raw text is: DRAFTING COMMERCIAL PRACTICES AND THE GROWTH OF COMMERCIAL CONTRACT LAWoe Boris Kozolchyk* I. INTRODUCTION The importance of commercial practices as a source of commercial contract law in today's global marketplace is beyond dispute. Massive numbers of commercial and financial transactions are governed by rules freshly harvested from commercial practices by global, regional, and local associations. Among these practices are the International Commercial Terms (INCOTERMS)' and the Uniform Customs and Practices for Documentary Credits (UCP),2 both of which were compiled and published by the International Chamber of Commerce (ICC); the Credit Derivatives Definitions and Master Agreement, which was compiled and drafted by the International Association for Swaps and Derivatives (ISDA);3 and the standard trading terms for quality, warranties, shipping documents, payment terms, insurance, default, and breach of contract remedies drafted by the Grain and Feed Trade Association (GAFTA).4 In addition, there are countless standard terms and conditions for the performance of commercial and professional services compiled by their respective national and international, as well as public and private associations.5 For each subject transaction, the above compilations establish, in varying detail, who does what, when, and how and who is responsible for the failure to comply. This article discusses the development of secured lending practices in Republican and Imperial Rome and draws lessons from the difficulties experienced in generating practices acceptable to lenders and borrowers alike. It c A version of this article will be published as a chapter in BORIS KOZOLCHYK, COMMERCIAL CONTRACTS, LAW, CULTURE AND ECONOMIC DEVELOPMENT, Hombook Series Publishing (West Academic, forthcoming) (manuscript on file with author). * Dr. Boris Kozolchyk, Evo DeConcini Professor of Law at the James E. Rogers College of Law, University of Arizona, and President and Executive Director of the National Law Center for Inter-American Free Trade (NLCIFT). I The Incoterms are internationally recognized and are used throughout the world in contracts for the sales of goods. See INT'L CHAMBER OF COMMERCE, INCOTERMS 2010, available at http://www.iccwbo.org/products-and-services/trade-facilitation/incoterms- 2010/. 2 See infra text accompanying notes 106-07. The UCP has been the living law for letters of credit throughout the world for nearly a century. The ISDA publishes and sells a Master Agreement, which was last published in 2002. See INT'L SWAPS & DERIVATIVES Ass'N, MASTER AGREEMENT, available at http://www.isda.org/publications/isdamasteragrmnt.aspx. 4 Contracts, GRAIN & FEED TRADE Ass'N (GAFTA), http://www.gafta.com/contracts (last visited Aug. 27, 2013). Performing a Google search for General Terms and Conditions of Trade illustrates this point.

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