Published 20 January 2021
COVID-19 and the governments' restrictions on curbing the pandemic have severely impacted parties' abilities to fulfil their contractual obligations. Parties have thus turned to their commercial contracts to evaluate if the force majeure clauses potentially permit them to excuse or limit contractual performance instead of being in breach for non-performance. This comparative analysis highlights the approach taken by courts in England, France and the State of New York in interpreting the common law defences of force majeure, frustration and hardship in relation to past epidemics and government restrictions that are analogous in the current context of COVID-19. This article also examines the approach by these three jurisdictions and the International Chamber of Commerce in interpreting the wording of contractual clauses where parties have defined the scope and extent of force majeure and hardship provisions. The aim of this article is to highlight through judicial decisions, the importance of drafting defences specific to one's contract rather than relying on a boilerplate clause, which a party may not be able to rely upon.
This paper is part of a series of papers on "Force Majeure, Hardship, etc". More information here www.transnational-dispute-management.com/news.asp?key=1813