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

See all articles by Klaus Peter Berger

Klaus Peter Berger

University of Cologne; Center for Transnational Law (CENTRAL)

Daniel Behn

Queen Mary University of London; PluriCourts University of Oslo

Date Written: April 20, 2020

Abstract


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

Berger, Klaus Peter and Behn, Daniel, Force Majeure and Hardship in the Age of Corona: A Historical and Comparative Study (April 20, 2020). McGill Journal of Dispute Resolution, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3575869 or http://dx.doi.org/10.2139/ssrn.3575869

Klaus Peter Berger (Contact Author)

University of Cologne ( email )

Institute for Banking Law and
Center for Transnational Law
50931 Koeln
Germany

Center for Transnational Law (CENTRAL) ( email )

Albertus Maguns Platz
Cologne, DE NRW 50931
Germany

Daniel Behn

Queen Mary University of London ( email )

67-69 Lincoln’s Inn Fields
London, WC2A 3JB
United Kingdom
+44 03791 085569 (Phone)

HOME PAGE: http://www.qmul.ac.uk/ccls/

PluriCourts University of Oslo ( email )

PO Box 6706
St Olavs Plass 5
Oslo, 0130
Norway
+44 03791 085569 (Phone)

HOME PAGE: http://www.jus.uio.no/pluricourts/english/

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
1,350
Abstract Views
3,318
rank
15,189
PlumX Metrics