Force Majeure in Tumultuous Times: Impracticability as the New Impossibility
It's Not as Easy to Prove as You Might Believe
In: The Journal of World Investment & TradeSearch for other papers by Mark Augenblick in
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Force majeure clauses excuse a party from performance if some unforeseen event beyond its control prevents performance of its contractual obligations. Although the prior standard of “impossibility” to invoke force majeure has effectively been replaced by “impracticability,” arbitration tribunals rarely enforce force majeure clauses unless the specific impediment is defined in the clause. As a result, the standard of “impracticability” is not as easy to prove as it might appear to be. Foreseeability, failure to explore alternate performance, and lack of timely notice are common reasons that force majeure defenses fail. Due to tribunals’ typically narrow and restricted application of force majeure clauses, they should be detailed, comprehensive, and focus on the particular circumstances of the transaction at issue.
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6)
Rhee, supra note 5 at 585 n.23.
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27)
The U.S. Supreme Court explained, “as Justice Traynor said, [i]f [the risk] was foreseeable, there should have been provision for it in the contract, and the absence of such a provision gives rise to the inference that the risk was assumed.” United States v. Winstar Corp., 518 U.S. 839, 905–907 (1996).
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31)
21 ICC Bull. 66 (2010).
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37)
ICC Case No. 4462/1985 and 1987, Albert Jan van den Berg (ed.), XVI Yearbook Commercial Arbitration 54–78 (1991). See also 733 F. Supp. 800 (D. Del. 1990) (award enforced in the U.S.).
| All Time | Past 365 days | Past 30 Days | |
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Force Majeure in Tumultuous Times: Impracticability as the New Impossibility
It's Not as Easy to Prove as You Might Believe
In: The Journal of World Investment & TradeSearch for other papers by Mark Augenblick in
Current site
Google Scholar
PubMed
Search for other papers by Alison B. Rousseau in
Current site
Google Scholar
PubMed
Force majeure clauses excuse a party from performance if some unforeseen event beyond its control prevents performance of its contractual obligations. Although the prior standard of “impossibility” to invoke force majeure has effectively been replaced by “impracticability,” arbitration tribunals rarely enforce force majeure clauses unless the specific impediment is defined in the clause. As a result, the standard of “impracticability” is not as easy to prove as it might appear to be. Foreseeability, failure to explore alternate performance, and lack of timely notice are common reasons that force majeure defenses fail. Due to tribunals’ typically narrow and restricted application of force majeure clauses, they should be detailed, comprehensive, and focus on the particular circumstances of the transaction at issue.
| All Time | Past 365 days | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 1103 | 151 | 18 |
| Full Text Views | 294 | 18 | 6 |
| PDF Views & Downloads | 299 | 53 | 22 |