Force Majeure and Hardship in the Age of Corona: A Historical and Comparative Study
54 Pages Posted: 14 Apr 2020 Last revised: 22 Apr 2020
Date Written: April 20, 2020
Force Majeure and Hardship provide legal tools to deal with the effect of unexpected future events and unforeseen changes in circumstances, particularly in long-term contracts. Given its global and unprecedented dimensions, its lethal potential and its drastic effects on international contracts the COVID-19 pandemic will generate years, if not decades, of post-pandemic litigation and arbitration focusing on the application of these two concepts. The paper examines the two concepts, from their historic origins over the different paths they took in civil and common law to modern transnational contract law as applied by international arbitral tribunals. Based on this historic and comparative analysis, the paper shows that in such extraordinary times, the doctrines of Force Majeure and Hardship assume the role of regular, rather than exceptional legal remedies, allowing for the risks emanating from the unprecedented crisis to be evenly distributed between the players in the global economy.
Keywords: Force Majeure, Hardship, Corona, COVID-19, Arbitration, Transnational law, Contract law
JEL Classification: K12
Suggested Citation: Suggested Citation