Force Majeure Events Research Articles

Let's lessen conditionality in times of force majeure events. The archaic righteousness of the policy of conditionality of international Institutions amid COVID-19

This article investigates how international decision-making's conditionality aids countries during strenuous economic conditions imposed by the COVID-19 pandemic. It examines and contrasts the European Union's conditionality policies, the International Monetary Fund, and the World Bank as the more influential and leading groups of institutions. The article reveals notable policy differences. As opposed to that of the IMF and WB, the EU's approach is more comprehensive and not confined to economic considerations. Those variations aside, the article draws on the same premise: expectations of compliance with the set conditions. While in-depth, structural requirements could guide ordinary decision-making and build up resilient national institutions and policies, this article questions the merits of large-scale comprehensive terms in the face of a situation created by a force majeure or a humanly uncontrollable event such as the COVID-19 pandemic. With no more initial research addressing the specific question of the application and adequacy of conditionality to force majeure emergencies or pandemic situations of the scale of COVID-19, this article argues in favor of a measured and targeted response limited to the development, design, or determination of policy choices that tackle the intended purpose. Also, for validly practical considerations that search for to ensure the better use of aid and avoid distracting or overburdening the recipient countries to the point of risking losses of devastating proportions, the article proposes to revise and limit conditionality during force majeure events to the essential aspects of transparent management of funds for the sole intended purpose. This in itself is a distinct democratic exercise of efficient and accountable public management decision-making.

SCL-India Survey 2020-21: On the Impact of Coronavirus Pandemic on the Construction and Infrastructure Industry

SCL-India, with the support of the Western-India Chapter, took the initiative to create a national resource of information for and by the construction and infrastructure industry about the impact of coronavirus (COVID-19), force majeure events, and the delivery of services. We believe that the survey has helped us identify current and future legal needs arising from the pandemic and related lockdown measures. The Reporters, Gracious Timothy Dunna and Ronak Desai, created the Survey and prepared the following Report, after receiving comments from members of SCL India. SCL-India welcomes comments, feedback, and observations concerning the Survey and the Report for inclusion and implementation by SCL-India.

Investigation of dispute factors and effects on construction projects arising from Covid-19 pandemic as a force majeure event

Tüm dünyayı etkisi altına alan Covid-19 salgını, başta toplum sağlığı ve ekonomi olmak üzere inşaat sektörü de dahil olmak üzere birçok farklı sektörlerde etkisini göstermiştir. Bu bağlamda inşaat firmalarının, Covid-19 nedeniyle üretim faaliyetleri ve tedarik zincirinde meydana gelen aksaklıklar başta olmak üzere şirketlerin nakit akışının bozulması, daha önce akdettikleri sözleşmelerden doğan yükümlülüklerin yerine getirilememesi gibi pek çok sorun ile karşı karşıya gelebilecekleri düşünülmektedir. Bu bağlamda çalışmanın amacı, mücbir sebep faktörü olarak Covid-19 salgınının Türk inşaat firmaları tarafından yürütülen inşaat projelerinde taraflar arasında sözleşmesel ilişkiler bazında etkilerinin neler olduğunun araştırılmasıdır. Bu çalışma kapsamında toplam 173 adet inşaat projesinden toplanan veriler Yapısal Eşitlik Modeli (YEM) metodu ile analiz edilmiştir. Çalışma sonuçlarına göre hak ediş ödemelerinin yapılamaması, hak taleplerinin genel salgın halinin meydana geldiği tarihi izleyen ilgili süre içinde yazılı olarak idareye bildirilmemesi, kalite izleme ve kontrol süreçlerinin personel yetersizliği nedeniyle uygulanamaması en yüksek faktör yüküne sahip uyuşmazlık etkileri olarak bulunmuştur.

A Proposed Pandemic Clause for Force Majeure Events under Construction Contracts in Malaysia

The construction industry is not spared from the adverse effect of the Covid-19 pandemic. This paper aims to identify the triggering events of Force Majeure under the standard forms of construction contract in Malaysia and determine the extent to which the relevant provisions in these contracts apply to the Force Majeure events during the pandemic. This research employs a qualitative research methodology, and the outcomes will help clarify the grey area of Force Majeure law caused by a global pandemic. It proposes guidelines to the construction industry when dealing with a similar disruption caused by an outbreak of the disease. Keywords: pandemic clause, Force Majeure, construction contracts eISSN: 2398-4287© 2021. The Authors. Published for AMER ABRA cE-Bs by e-International Publishing House, Ltd., UK. This is an open access article under the CC BYNC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/). Peer–review under responsibility of AMER (Association of Malaysian Environment-Behaviour Researchers), ABRA (Association of Behavioural Researchers on Asians/Africans/Arabians) and cE-Bs (Centre for Environment-Behaviour Studies), Faculty of Architecture, Planning & Surveying, Universiti Teknologi MARA, Malaysia. DOI: https://doi.org/10.21834/ebpj.v6i16.2733

Оценка уровня развития финансового рынка России на этапах экономического роста

The article examines the development of the Russian economy in its modern capitalist period. The authors emphasize that when analyzing the dynamics of GDP, there are five stages that have significant differences: growth rates, models that stimulate growth, sources of financing for economic growth, and other reasons, the totality of which determines the ‘face’ of each of the selected stages. The authors substantiate the necessity and possibility of using the potential of the financial market to stimulate economic growth. At the same time, considerable attention is paid to the justification of the impact of indicators that characterize the financial market within the framework of the institutional (financial institutions) and instrumental (financial instrument markets) approaches. The authors highlight five stages of Russia’s economic growth: economic (transformational) decline (1991–1998), rapid recovery economic growth (1999–2007), decaying recovery economic growth (2008–2012), stagnant economic growth (2013–2019). The article shows the importance of the financial market for the implementation of the main tasks at each stage from the standpoint of expert assessment of indicators of the development level of the financial market: depth (the importance of institutions and financial market instruments relative to macroeconomic indicators), availability of services provided by institutions and financial instrument markets, stability (the ability of financial institutions to continue providing services in the event of force majeure and financial market volatility), efficiency (the attractiveness of the market for business). The authors of the article believe that in 2020, a new fifth stage of Russia’s economic growth began, the potential of which can be revealed through the use of financial boost tools. At present, Russia is in a unique situation of a combination of a crisis based on both a demand model and a supply model. The authors propose specific measures to use the potential of these models. The combination of the measures used will reveal new opportunities for the development of the economy and society. These opportunities can be obtained by using the ideology of the strategy of accelerated financial development of the economy – financial boost.

Force majeure clauses in LNG sales and purchase agreements: how do they stand up during the Covid-19 pandemic?

During the Covid-19 pandemic companies have declared force majeure on contracts across the energy value chain. LNG Sales and Purchase Agreements (SPAs) are no exception. Courts in several jurisdictions have declared Covid-19 a force majeure event. Governments have issued guidelines on managing Covid-related contract disputes. The stage is set for high-value litigation turning on the validity of force majeure clauses. The purpose of this article is to help make sense of these developments. It will review the theory and application of the law of force majeure and, through comparison of six published LNG SPAs, ‘stress test’ current force majeure provisions. The article will consider how contractual risk is presently allocated in these model contracts, what drafting modifications might be applied to improve coverage, align with current case law, better reflect the market environment, and ensure contractual stability under Covid-19 conditions. The focus is on English law, given that this is the lex fori in the majority of the published contracts.

An Examination and Analysis of Division I Football Game Contracts: Legal Implications of Game Cancellations Due to Hurricanes

In recent years, extreme weather events, namely hurricanes, have compromised the college football schedule in the United States. Incidents of extreme weather have caused the cancellation, postponement, relocation, or otherwise alteration of dozens of Division I college football games in recent years. Focusing primarily on hurricanes, this study will present several concerns related to these storms and extreme weather in the US, and contractual law principles of common law defenses and force majeure clauses as they relate to college football game contracts. The purpose of the present study is to begin to better understand the football game contract inconsistencies that can lead to legal disputes faced by college football programs that deal with these storms, and gain a better insight of the contractual considerations made in light of these storms that are becoming increasinglyfrequent and severe. To do so, college football game contracts were obtained through Freedom of Information Act (FOIA) requests to select NCAA Division I colleges, internet-based searches, and media exchanges. Analysis of force majeure contract language revealed inconsistent definitions of force majeure events, a limited number of contracts containing specific weather-related force majeure language, and a range of force majeure events leading to the absence of a clear and consistent understanding of how extreme weather-related cancellations would impact the contractual relationships. Recommendations, asa result of the document analysis, are then made for provisionary revision and reconstruction to meet current realistic needs for individual schools. Societal consciousness regarding climate change is adjusting, therefore sport and legal practitioners can reflect this modernization by scrutinizing potential prudent risks.

Force Majeure v Specific Performance of Contract: Order Cancel Culture Impacting RMG Industry in Bangladesh

COVID-19 pandemic wreaked havoc and is still wreaking havoc. Brands and retailers have in this chaos invoked force majeure clauses in their contracts to cancel their pending orders. Bangladesh alone has a total of 6bn USD worth of orders unpaid with no payment made for already finished products or bought raw materials. Some companies are considering declaring involuntary bankruptcy as brands have used the order cancellation as a bargaining chip to force a 12% price reduction on already negotiated orders. This essay focuses on whether and to what extent the COVID-19 pandemic can amount to a force majeure event and how and to what extent specific performance of contract is available as a suitable remedy for the RMG in Bangladesh.

Stagflation in American Jurisprudence

This Article endeavors to be the first law review article which analyzes stagflation in American jurisprudence. The first part of this Article discusses the history of stagflation and its prevalence, particularly during the years of the presidency of President Jimmy Carter. The Article then analyzes how courts have historically considered stagflation in American jurisprudence and examines several courts which have cited stagflation in their analysis.The final part of the Article analyzes whether stagflation may be considered a force majeure event. Utilizing cases involving inflation and force majeure clauses as well as the COVID-19 pandemic as comparisons, the Article addresses the question of whether stagflation would qualify as a force majeure event. With stagflation possibly on the horizon in the United States, analysis of this question will provide more clarity for contracting parties as well as the courts in the event a period of stagflation occurs.

Coronavirus as a force majeure event and the reason for the purchase of goods, works and services from a single supplier

В статье описывается один из способов заключения государственного контракта в условиях непреодолимой силы, вызванной новой коронавирусной инфекцией. Доказано, что новая коронавирусная инфекция является обстоятельством непреодолимой силы, спровоцировавшим нестабильную экономическую ситуацию, в условиях которой система государственных закупок является инструментом регулирования социально-экономических процессов, роль которой трудно переоценить. Обоснована возможность заключения государственного контракта в целях ликвидации последствий новой коронавирусной инфекции у единственного поставщика, в то же время указывается на имеющиеся недостатки такого способа заключения государственного контракта. Ключевые слова: коронавирус, эпидемия, снабжение медицинской продукцией, государственный контракт, контрактная система, закупка у единственного поставщика, коррупциогенный фактор, Федеральная антимонопольная служба России, обстоятельство непреодолимой силы, закупка.

Force majeure: implications on continuity of service delivery through procurement and public private partnerships in uncertain times

Procurement and PPPs have been adopted as a medium of engaging the private sector through contracts and concessions to deliver public services. The force majeure clause has been included in procurement and PPP contracts to limit liability in the event that parties are frustrated for serving their obligations. This study reveals that while the force majeure clause exists in contracts, it requires that parties cite the events that shall constitute force majeure. Based on a review of literature, the study reveals that while COVID-19 was not catered for, it is largely confirmed a pandemic alongside its associated lockdowns. The findings reveal that COVID-19 measures constitute a force majeure event that exposes procurement and PPPs contracts to frustration. However, unlike other force majeure events we recommend that termination due to frustration should be a last resort option due to switching costs and risks especially for the government. This study provides for contract continuity alternative actions that are necessary for continuity of service delivery in existing procurement and PPP contracts in the uncertain COVID-19 times. Copyright © 2021 Inderscience Enterprises Ltd.

Management of Logistics Activities of Enterprises in the Context of Industry 4.0

In the modern conditions of digital economy and a large number of force majeure events, both economic and social, the issues of providing production with the necessary material and digital resources and their efficient use become especially relevant; improving the operational and strategic management of warehousing, inventories, differentiated transport flows, sales activities and customer experience. In order to ensure the effective operation of enterprises should organize their activities in such a way as to avoid risk, loss and costs associated with the organization of logistics processes, production, transportation and marketing, customer focus, and maximize revenue. First of all, these goals can be achieved by improving the management of logistics activities of enterprises, taking into account the analysis of the components of the concept, their relationship and taking into account the presence of accelerated and uneven digitization process. It is established that it is expedient to develop and implement management decisions in the following key areas: procurement and supply of material resources (calculation of the optimal volume of the supply of material resources, optimization of procurement strategy, improving procurement management using the method of multicriteria assessment) traffic flow management (introduction of cargo flow management information systems, use of automated document processing in the design of the cargo transportation process, development of proposals for optimizing transport loading, use of Internet technology to automate transport processes); customer experience management (analysis of shipment volumes, forecasting shipment volumes to consumers, development of proposals to increase the level of logistics services, formation of a system of contractual relations with consumers, improvement of customer-oriented approach to service of different categories of consumers in the context of relationship marketing); sales management (justification of the network approach to the organization of sales activities of enterprises; improving the mechanism of public-private partnership in sales management of enterprises based on the organizational and legal form of the syndicate, methodological approach to choosing the optimal sales channel for finished products; commerce as an effective tool for promoting products on the market).

Regulating the tourism industry to attract foreign investments at risk of force majeure events

This article studies the legislative regulation of tourist activities in order to improve the investment climate. The authors consider the current state of the tourist services market and the reasons why the flow of tourists has significantly decreased and analyze the refund policy in case it is impossible to provide a tourist service due to the closure of the border during the pandemic. Based on the analysis of the international experience and the tourism industry in the Russian Federation, the authors developed recommendations to improve existing legislation and government policy towards the tourism industry, which should guarantee the influx of investments. In addition, they addressed the issue of attracting foreign investments to the tourism industry within the scope of public-private partnerships, as well as the issue of the creation of special economic zones of the tourist and recreational type. The authors concluded that it is necessary to form a clear political program for the development of tourism in the Russian Federation and to apply comprehensive measures to create conditions in which Russian tourism develops more effectively.

SARS-COV2 as Trigger for Reviewing Strategic and Operational Public Administration Frameworks

Administration as complex field of science, expertise, and research has accompanied economic, social, and cultural development from ancient times up to now. Public administration is the most visible component as it has multiple facets as expression of the political, legal, and managerial context inside a country. It ensures permanent direct or indirect links between government and individuals, and is relevant for several related fields like employment, education, health, and environment. The current ongoing pandemic has confronted public administrations all over the world with multiple challenges, and one of them stands out – the necessity of reviewing policymaking processes, policies, measures, and intervention frameworks of public administration to make them more flexible, responsive and fit for operating in a digitalized environment. In this respect, Romania is faced with multiple challenges regarding policymaking and public administration policies, and as regards decision-making and proper functioning at the two main levels, respectively operational and strategic. Current uncertainty needs to be addressed not just by immediate action, but also requires outlining some future directions for policymaking as regards public policies at strategic level, and improvement of skills and capacities at operational level at both national and European level. It should address main fields public administration has to deal with, from education and health, to employment and environmental issues as global crises like the SARS-COV2 pandemic or other unexpected force majeure events might change priorities and endanger certain aspects of established policies thus being both threat and opportunity for convergence and cohesion at European and national level.

COVID-19: Can It Qualify as a Force Majeure Event in a Commercial Agreement in Nigeria?

The world is currently being faced with a common enemy – the novel coronavirus disease 2019, popularly known as COVID-19. This deadly virus which was first discovered in Wuhan, China, has now rapidly spread across many nations of the world. Many reported cases and deaths have been recorded in almost all the countries of the world. The devastating effects of COVID-19 on the economies of nations cannot be overemphasised. The pandemic has adversely affected almost all sectors of the world economy. Parties have been unable to meet up with deadlines and obligations under their agreements. Like many nations of the world, Nigeria has suffered from the deleterious effect of this pandemic. Expectedly, the Nigerian governments are quick-witted to this deadly virus. No doubt, extraordinary situations require extraordinary solutions. The drastic measures taken by the Nigerian Government to nip the virus in the bud have caused a huge disruption and setback to the economy of the most populous black nation of the world. While efforts are in top gear to bring an end to this deadly disease, it is almost certain that the post COVID-19 world would herald a bundle of cases involving breach of agreements arising from failure to perform obligations due to the unanticipated outbreak of the virus. The effect of this would likely be that parties would trigger the force majeure clauses in their agreements as a possible defence to the non-performance of their contracts.

The Features of the Legal Regulation of Procurement for the State and Municipal Needs During the Coronavirus Pandemic

Introduction: currently, the normal development of the political, economic and legal spheres is significantly affected by the outbreak of the COVID-19 declared a pandemic by the World Health Organization. The epidemic attracted the attention of health professionals and the population around the world, as previously the coronavirus infections in humans did not go beyond the acceptable level of a biological risk. The current events directly related to the pandemic affect all areas of our habitual way of life, its legal component, including the sphere of procurement for the state and municipal needs. Objective: to study the features, positive and negative aspects of the legal regulation of the contract procurement system for the state and municipal needs in the conditions of introduction of innovative management technologies during the coronovirus pandemic. Methods: the methods of systematization, analysis, and comparative law are used. Results: the author analyzed the innovations in procurement for the state and municipal needs in the context of the pandemic; the specifics and features of the development of the system of state and municipal procurement in the paradigm of industry 4.0 during the pandemic are determined; the shortcomings of the current civil law mechanism for protecting the rights of legal entities in the field of procurement for state and municipal needs based on industry 4.0 technologies during the pandemic are identified; identified the possibility of abuse due to the temporary relaxation of the legislation on public procurement; identified the possibility of the legal qualification of the coronavirus as force majeure, the circumstance that makes it impossible to fulfill the obligations; proved that the introduction of the ability to purchase from a single supplier can negatively affect the activities of small and medium-sized enterprises. Conclusions: the innovations in the legal regulation of procurement for the state and municipal needs amid the pandemic in the context of the fourth industrial revolution contain a number of positive aspects: the launch of many digital services; the simplification of the procedure for conducting purchases in the event of force majeure and emergencies; easing the requirements for small and medium-sized businesses; expanding the opportunities to change the term and price of the contract; the changes in the procedure for applying penalties, etc. However, we should not forget about the possible negative consequences of easing the rules of public procurement: the probability of reducing the efficiency and effectiveness of procurement; the appearance of corruption and its manifestations; the abuse at every stage of public procurement; the difficulties in justifying the real impact of the pandemic on the execution of the state order; the ability to purchase from a single supplier can negatively affect the activities of small and medium-sized enterprises; the risk of the violation of antitrust laws due to constantly changing regulations and other consequences.

Çekin İbrazında Mücbir Sebepler: COVID-19 Salgını Örneğinde TK M 811 Hükmünün Değerlendirilmesi

Force majeure events affecting the presentation of a check are regulated by Article 811 TCC. Force majeure events can generally be defined as events that (temporarily) make it impossible to fulfill any obligations, and thus, the obligations pend during the force majeure events. Article 811 TCC stipulates that the holder of a check affected by a force majeure event may present the check later without losing any of his or her rights. It reflects the general understanding of the force majeure institution and has been exercised in a few cases until now. Therefore, some questions, such as which events shall be deemed to be a force majeure event under the terms of Article 811 TCC, whether the coronavirus disease 2019 (COVID-19) pandemic hinders the holders of a check to present it, and whether the notification and recording obligation of the holder as it is foreseen in the second paragraph of Article 811 TCC is absolute, are still unaddressed. The relation of Article 811 TCC with the interim Article 1 of Law Nr 7226 with respect to the COVID-19 pandemic also needs to be highlighted. Against this background, this paper deals with the aforementioned questions and comes inter alia to the following conclusions: COVID-19 pandemic is a force majeure event in terms of Article 811 TCC. Article 811 TCC should be applied in the cases of the delays of check presentation instead of the interim Article 1 of Law Nr 7226. The interim Article 1 of Law Nr 7226 can however be used to interpret and complement Article 811 TCC. Finally, the notification and recording obligation of the holder as it is foreseen in the second paragraph of Article 811 TCC are not absolute.

Estudio sobre la indemnización por daños desde la perspectiva del derecho comparado bajo el contexto de la modernización del derecho contractual

Una de las tareas más urgentes para aquellos que se dedican académicamente al derecho privado en China es la elaboración del Borrador del Código de Derecho Civil (BCDC), entre el cual las teorías del contrato, del régimen jurídico contractual y de la responsabilidad contractual son los trabajos más importantes. En este trabajo se presentan algunas consideraciones preliminares sobre los remedios indemnizatorios y la responsabilidad contractual, enfatizando en una visión de derecho comparado. El incumplimiento significa “cualquier falta de realización, realización irregular, defectuosa o incompleta de las conductas (prestaciones, si se prefiere) asumidas contractualmente”. Pantaleón Prieto lo define, en definitiva, como “cualquier desviación del programa contractual”. En relación con el remedio indemnizatorio, conviven dos posibles sistemas en el derecho de la contratación: por un lado, están los sistemas de corte subjetivo, que requieren un cierto grado de culpa del deudor, cuanto menos, para imputarle responsabilidad. En esta línea se encuentran los ordenamientos de la familia del derecho civil continental europeo, si bien se aprecian movimientos evolutivos en algunos de ellos, como veremos a continuación. Por otro lado, tenemos a los sistemas de corte objetivo, que permiten imputar responsabilidad al deudor en caso de incumplimiento, con independencia de la culpa, si bien puede quedar exonerado en caso de fuerza mayor o cuando quede fuera de su esfera de control el evitar el resultado dañoso. La responsabilidad objetiva, también llamada “responsabilidad estricta” (strict liability), es una noción proveniente del Common Law.

Coronavirus Pandemic 2019-nCoV (COVID-19) as Force Majeure

The paper is devoted to the legal analysis of the consequences of a new coronavirus infection, due to which the World Health Organization declared a pandemic. By its nature, this infectious phenomenon refers to a force majeure event. Within the framework of the scientific research, the author describes the concept of force majeure, as well as the features of emergency and unavoidability that make up this legal category. In addition, a number of regulatory legal acts regulating public relations in this area are subject to legal analysis, both adopted earlier and published literally from the very beginning of the spread of coronavirus infection throughout the territory of the Russian Federation. Along with the analysis of the regulatory legal acts, the paper also provides judicial practice on the issue under consideration. Based on the legal analysis of the issues under study, it is concluded that adequate legal regulation of the consequences of the coronavirus infection within the framework of relations between civil law subjects will guarantee the participants mutual bona fide behavior in accordance with the norms established by civil law, and in the case of unfair behavior — the implementation of civil liability measures for such subjects. In conclusion, it is noted that prompt and qualitative regulation of the consequences of the coronavirus infection is one of the key tasks in the legal field in the current situation, since contract law, which includes provisions on force majeure, plays an important role in the development and maintenance of stability of civil turnover, providing all its participants with legal guarantees for the implementation of the basic norms and rules established in the Civil Code of the Russian Federation concerning the conclusion and execution of contracts.

A Comprehensive Force Majeure Model Clause in Corporate Transactions in Indonesia

Force majeure clause is presented in various models, from the simple to the complex ones that contain comprehensive descriptions, provisions, and notifications set out in an agreement with the details of the consequences of force majeure events. Force majeure clause serves as a complementary core clause and a renegotiating tool for the parties in the case of any event occurring beyond their reasonable control, which is important enough not to be overlooked by business actors. The Covid-19 pandemic which is currently ongoing worldwide, which has been declared as a global pandemic by World Health Organization (WHO) on 11 March 2020, has had a huge impact on the social life and the world economy which is very unsettling for business people, banks, and the society in general. The research questions investigated in this study are: (i) What are the factors causing failures in the performance of contractual obligations? (ii) What is a comprehensive force majeure model clause for corporate transactions in Indonesia? This study employs the normative legal research method. A normative legal research is guided by the characteristics of the object of the research, yet remains limited by the expected outcome of the norms initially established. The theories applied in investigating the problems in this research are the will theory (wilstheorie), trust theory (vertrouwensttheorie), and statement theory (verklaringstheori). In this study, will be identified a comprehensive force majeure clause enables the party who experiences a force majeure event to waive some provisions in the contract agreement.