Hardship and Force Majeure in International Commercial Contracts

Hardship and Force Majeure in International Commercial Contracts PDF

Author: Fabio Bortolotti

Publisher: Kluwer Law International B.V.

Published: 2019-07-15

Total Pages: 308

ISBN-13: 9403514736

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Force Majeure and Hardship are commonly invoked in international trade when unforeseen events occur making performance impossible or impracticable. Most national legislators provide rules to deal with these issues, but the specifi c solutions adopted in domestic laws vary substantially from one country to another. In recent years the growing complexity of trade in a globalized world has greatly increased the number of situations where a party can invoke force majeure or hardship. Parties need to be able to analyse the nature and characteristics of force majeure and hardship and look for contractual clauses which can regulate these issues in conformity with their needs. Written by international practitioners, this dossier explores the evolution of the rules on hardship, the ICC Clause on Hardship and the perspectives of contract adaptation by arbitrators. The section on Force Majeure includes an overview of recent arbitral case law (impediment beyond sphere of control and risk of the obligor; foreseeability; causation; notice requirement), analysis of the ICC 2003 Force Majeure Clause and an update on its revision. Two other important themes are included: the relationship between force majeure and applicable law, general principles of law and trade usages as well as the impact of economic sanctions.

Force Majeure and Hardship Under General Contract Principles

Force Majeure and Hardship Under General Contract Principles PDF

Author: Christoph Brunner

Publisher: Kluwer Law International B.V.

Published: 2009-01-01

Total Pages: 626

ISBN-13: 9041127925

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Lawyers involved in international commercial transactions know well that unforeseen events affecting the performance of a party often arise. Not surprisingly, exemptions for non-performance are dealt with in a significant number of arbitral awards. This very useful book thoroughly analyzes contemporary approaches, particularly as manifested in case law, to the scope and content of the principles of exemption for non-performance which are commonly referred to as 'force majeure' and 'hardship.' The author shows that the 'general principles of law' approach addresses this concern most effectively. Generally accepted and understood by the business world at large, this approach encompasses principles of international commercial contracts derived from a variety of legal systems. It's most important 'restatements' are found in the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts (UPICC). Establishing specific standards and "case groups" for the exemptions under review, the analysis treats such recurring elements as the following: contractual risk allocations; unforeseeability of an impediment; impediments beyond the typical sphere of risk and control of the obligor; responsibility for third parties (subcontractors, suppliers); legal impediments (acts of public authority) and effect of mandatory rules; involvement of states or state enterprises; interpretation of force majeure and hardship clauses; hardship threshold test; frustration of purpose; irreconcilable differences; comparison with exemptions under domestic legal systems (impossibility of performance, frustration of contract, impracticability) The book is a major contribution to the development of the use of general principles of law in international commercial arbitration. It may be used as a comprehensive commentary on the force majeure and hardship provisions of the UPICC, as well as on Art. 79 of the CISG. In addition, as an insightful investigation into the fundamental question of the limits of the principle of sanctity of contracts, this book is sure to capture the attention of business lawyers and interested academics everywhere.

The Hardship Approach in the UNIDROIT Principles of International Commercial Contracts and Its Equivalent in German Law of Obligations - A Comparison

The Hardship Approach in the UNIDROIT Principles of International Commercial Contracts and Its Equivalent in German Law of Obligations - A Comparison PDF

Author: Karsten Keilhack

Publisher: GRIN Verlag

Published: 2007-09-30

Total Pages: 37

ISBN-13: 363877824X

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Essay from the year 2003 in the subject Law - Comparative Legal Systems, Comparative Law, grade: 67%, Cardiff University (Großbritannien; Law School), course: Comparative Contract Law, language: English, abstract: The UNIDROIT Principles of International Commercial Contracts1 have been published in May 1994 by the Rome-based International Institute for the Unification of Private Law (UNIDROIT), an intergovernmental organisation established in 1926. The Working Group on the UNIDROIT Principles was found in 1980 and consisted of independent legal scholars of all major legal systems of the world. The UNIDROIT Principles are not binding law. Most legal writers agree that they can be characterised as a restatement of the law of international commercial contracts2 and despite the controversial issue about the very existence, scope and content of a lex mercatoria - the possibility of applying supranational law to international legal relationships- most authors agree that it exists and that the UNIDROIT Principles are a significant part of it3. The object of this paper is to examine the UNIDROIT Principles' approach to hardship laid down in Chapter 6, Section 2 and to compare it with its equivalent provision in the German Civil Code (Bürgerliches Gesetzbuch, hereinafter BGB), § 3134. For this purpose it is firstly necessary to define the term "hardship". Thereafter I will consider the respective provisions in detail and highlight differences and similarities.

Drafting International Contracts

Drafting International Contracts PDF

Author: Marcel Fontaine

Publisher: BRILL

Published: 2015-03-31

Total Pages: 674

ISBN-13: 9047430239

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Drafting International Contracts is an essential resource for anyone working in international business. It features the latest trends, fostering an understanding of how international contracts are drafted in practice.

Drafting and Negotiating International Commercial Contracts

Drafting and Negotiating International Commercial Contracts PDF

Author: Fabio Bortolotti

Publisher: Kluwer Law International

Published: 2009-02-18

Total Pages: 0

ISBN-13: 9789041128591

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Drafting an international contract can be a risky business. Yet with the increasing globalization of markets, these cross-border contracts are becoming a common practice for most traders, as well as for the lawyers assisting them. At the same time, international contracts remain a difficult and mysterious subject for business people as well as their lawyers. In his new book, Drafting and Negotiating International Commercial Contracts, Professor Fabio Bortolotti, a world-renowned expert on contract law, clarifies the issues surrounding these contracts and provides solutions to the thorny problems they raise: choice of the applicable law choice of jurisdiction international arbitration the use of more international drafting techniques hardship, force majeure and liquidated damages As an added feature, this volume provides insights into the basic requirements of a well-drafted contract and analyzes in depth the negotiating process. It concludes with incisive commentary on the model contracts developed by the International Chamber of Commerce. Lawyers and other legal professionals will find in these pages the tools they need to ensure their contracts meet the requirements of a globalized world.

Good Faith in Long-Term Relational Supply Contracts in the Context of Hardship from A Comparative Perspective

Good Faith in Long-Term Relational Supply Contracts in the Context of Hardship from A Comparative Perspective PDF

Author: Peng Guo

Publisher: Springer

Published: 2022-11-11

Total Pages: 0

ISBN-13: 9789811655159

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This book provides fair and acceptable solutions to hardship issues in long-term relational supply contracts. This book uses an approach to strike a balance between the traditional approach underlying classical contract law which emphasises the almost absolute prevalence of the principle of pacta sunt servanda and a flexible approach that is based on the principle of clausula rebus sic stantibus. This book argues for an emerging principle of pacta sunt servanda bona fide on the basis of the relational contract theory. Additionally, this book demonstrates how good faith can serve as a foundation for imposing a duty to renegotiate on the parties. The aim of this book is rather to propose how relational contract theory can be applied to the analysis of specific legal rules in general. Lastly, this boos highlights how the duty to renegotiate and the power to adapt a contract can be further developed upon the occurrence of hardship, based on good faith and the relational nature and characteristics of a long-term relational supply contract. This book explores and enriches the existing research on relational contract theory concentrates primarily on its application in domestic contract laws, particularly in the regulation of long-term contracts in American contract law. As an outcome this book provides a more feasible and satisfactory approach for courts or arbitral tribunals to undertake when facing hardship issues in international contract disputes. Overall, hardship themes, long-term relational supply contracts and good faith are examined extensively.

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