Force Majeure in International Law during a Pandemic

Abstract

Immediately after the COVID-19 crisis hit, questions about its effect on the performance of contractual obligations arose. One of the potential defences to the performance of contractual obligations is force majeure, a doctrine found in most municipal laws that excuses or arrests contractual obligations due to an external event—the ‘Act of God’ that is the force majeure event—or follow-on effects, whether factual or legal, that render performance impossible. Force majeure is also known in public international law; a state can raise force majeure as a circumstance precluding wrongfulness that obviates its obligation for the duration of the event. In both public international law and in the relationship between private entities, the requirements for the successful invocation of force majeure are difficult to satisfy; this is because excusing performance violates the doctrine of pacta sunt servanda, the sanctity of contractual or treaty obligations. This chapter will concentrate on the ways that the pandemic illustrates the possibilities, and shortcomings, of a force majeure defence.