Whether you're considering a claim, worried about receiving one or busy drafting following the outbreak, here's our 10-point, jargon-free checklist on what to do:
1. Check your contract's governing law
2. Find the force majeure clause
3. Establish the events it covers
One party will obviously prefer a non-exhaustive list, the other an exhaustive one. Whichever you are faced with, look closely at how force majeure events are defined and decide whether coronavirus fits the definition.
Epidemics and pandemics generally won't be defined or state their location or who decides whether an outbreak has reached this threshold. However, there's less of a hurdle now coronavirus is classed as a global pandemic. Some governments have officially certified coronavirus as a force majeure event in their jurisdiction.
If neither epidemics nor pandemics are mentioned, the clause could still be triggered where it covers labour and supply shortages (which are caused by coronavirus) or broadly defines events as exceptional, beyond one party's control, unavoidable and not attributable to the other party (but check carefully that all these conditions are fulfilled).
If there is no force majeure-type clause or the event is not covered by the contract wording, consider relying on provisions such as those dealing with material adverse change, price adjustment, liability limitations and exclusions, extensions of time, variations or changes in law (for example, laws prohibiting employees or transport from working, which slow down the supply chain). English law makes it hard to prove that the contract has been frustrated (that is, impossible to perform).
4. Work out how your clause links coronavirus and non-performance
A force majeure clause usually requires performance of contractual obligations to be "prevented", "impeded", "hindered" or "delayed". "Prevent" requires that the obstacle to perform is insurmountable, for example that it is no longer physically possible or legally permissible to perform the contract. "Impede", "hinder" and "delay" can be construed more broadly and do not require the affected party to prove impossibility to perform.
To rely on the clause, the event must be the only one affecting contractual performance (unless clearly stated otherwise). In other words, "but for" coronavirus, a party must have been willing and able to perform.
5. Understand the effects of notifying a force majeure event
Depending on how long performance is affected, the contract may allow the right to suspend, seek an extension of time or for either party to terminate. Are you prepared for one or more of these consequences? Is there an opportunity to leave or renegotiate a difficult commercial situation?
If a dispute were to result from the claim, is your dispute resolution mechanism robust or are there drafting gaps that could lead to satellite claims, for example over the law governing an arbitration? What would be the steps to enforce court orders or arbitral awards?
6. Comply strictly with contractual notice requirements
Is an initial notice of the force majeure event needed?
Must you supply supporting details and evidence of the event and its effects?
By when and in what form should notices (initial and subsequent) and supporting documents be served?
Pinpointing when coronavirus starts to affect your contract might not be easy. If unsure, consider notifying force majeure at the earliest opportunity, followed by further periodic notices or updates regarding the continuing disruption so your claim is not time-barred.
7. Document evidence which supports your claim
8. Respond quickly to force majeure notices
9. Prepare for the force majeure event ending
- Agree with your counterparty a date when obligations will resume after the event and its effects have ended, especially if the contract is unclear.
- The supply chain will need time and resources to resume operations or clear backlogs and the party claiming force majeure won't want to be in breach once the event is over. There may in limited cases be room to explore (or a contractual right to request) a further extension of time for performance. However, you are more likely to get relief during the remobilisation period by highlighting to your counterparty that the event is over but the preventing effects are still being felt.
- As the effects of coronavirus are felt at different times, force majeure notices could continue to be issued after it is downgraded from a pandemic. At this stage, return to the contract wording to check if coronavirus is covered and whether the location of the force majeure event is mentioned. For example, would your clause be triggered if there were still an epidemic at the place of delivery but not the place of manufacture?
10. Learn lessons for future disruptions
Authored by Zachary Tan, Mark Crossley, and Angus Rankin