Considering the Rationale of Incorporating Force Majeure Clauses in Commercial Contracts Between the Parties to a Commercial Contract

Anna Lefcovitch, Solicitor, Arcadis, UK
Professor Charles Chatterjee, Associate Fellow , Institute of Advanced Legal Studies, UK

Force Majeure clauses are often incorporated by practising lawyers (other than Counsels) as a matter of practice in drafting commercial contracts, be they domestic or transnational, apparently without realising that the way they aim at protecting the liability of their clients may not succeed as the English Courts often have rejected the force majeure clauses by finding that their client was still liable to perform its/his contractual obligations, and in consequence, their client has been instrumental to frustrating the contract. The legal situation of force majeure may however be different in respect of construction industry or import-export trade, for example. After briefly discussing the origins of the doctrines of frustration and force majeure, and also identifying the circumstances in which the English Courts might confirm the demise of a contract by frustration, this Article has attempted to consider the usefulness of incorporating force majeure clause in commercial contracts, be they domestic or transnational in nature or whether the parties are private entities or public entities or even private-public entities. The opinions expressed in this Article are those of the authors, and in no way may they be attributed to the institutions with which they are affiliated.

Read full paper Subscribe to the IICJ
United Kingdom Contract General July 2021 Vol.14, No. 56, Summer 2021

Anna Lefcovitch

More

Anna Lefcovitch is currently employed as an in-house solicitor at Arcadis LLP, and has considerable experience in commercial and construction law. She studied law at University College London and London Guildhall University. She has been working as an in-house lawyer for 20 years.

Professor Charles Chatterjee

More

Professor Charles Chatterjee who studied law at the University of Cambridge and the University of London is a Barrister in England and Wales and has also acted as an arbitrator. A commercial law specialist (international) with special interest and knowledge in international organisations and their functions in addition to court experience in law as a practising barrister in England and Wales. A consultant to international organisations and private corporations in addition to conducting capacity building training programmes in various countries. Articles in IICJ: “Recognition and Enforcement of Arbitral Awards: How Effective is Article V of the New York Convention of 1958?” International In-house Counsel Journal Vol. 9, No. 36, Summer (2016), 1 “Decisions of ICSID Tribunals on Procedural Issues may not be Confused with their Awards” International In-house Counsel Journal Vol. 10, No 37, (2016) “CAPE DISTRIBUTION LTD v CAPE INTERNATIONAL HOLDINGS PLC How a Parent Company May be Held Liable in Torts for the Negligence of its Subsidiaries”, International In-house Counsel Journal Vol.11, No. 42, (2018)

Institute of Advanced Legal Studies

More

Academic Institution

Arcadis

More

Design & Consultancy for natural and built assets

United Kingdom Contract General July 2021 Vol.14, No. 56, Summer 2021