Procedural Force Majeure and Hardship in ADR on the Example of the COVID Pandemic

Abstract

Not only the performance of a commercial contract but also the implementation of the chosen method of resolving a dispute may become impossible or excessively burdensome due to unexpected circumstances, such as the effect of restrictive measures during a pandemic. This puts in question the civil legal concepts of "force majeure" and "hardship". Usually, they are applied to substantive legal relations such as rendering services or delivery of goods.

However, they arguably should be applied also to procedural legal relations. Unlike in substantive law, the main purpose of the application of these concepts does not consist in avoiding liability for failure to perform one's duties but to authorize the dispute resolution provider to adapt the procedural form or timeframe to the unforeseeable circumstances.

Legal concepts of force majeure and hardship should not normally excuse a party from fulfilling its agreement to arbitrate or mediate, or for the dispute resolution provider to refrain from administering ADR. Instead, they should constitute a ground to adapt the procedure to changed circumstances.

The purpose of application of "procedural" force majeure and hardship concepts consists in the elimination of obstacles in the resolution of disputes caused by uncontrollable and unforeseeable circumstances by means of adaptation of the procedure, taking into account the resources of the participants in a particular dispute.

Keywords: force majeure, hardship, remote hearing, arbitration, mediation, dispute resolution, ODR