Force Majeure and Avoidance of Contracts: A Deep Dive into Contracts Going Wrong in times of Pandemics and Special Military Operations
This short course takes a deep dive into how companies have tried to avoid suddenly burdensome contract obligations since the onset of Covid-19, and contracts rendered impossible to perform, too burdensome to pay for, or simply too bad for the reputation or too frightening to the counterparty since the onset of the special military operation. Whether they are trade contracts, rental agreements, employment agreements, or even merger agreements, everything in business has changed in the past few years. Businesses in all jurisdictions and all sectors are scrambling to modify and often completely undo their contractual commitments.
But, although contract avoidance mechanisms can work, it’s not always easy for clients to avoid their obligations.
We will examine the common law doctrines of impracticability, impossibility and frustration of purpose, as well as the civil law hardship doctrine. What are they all, and how do each of these differ? How do the same concepts differ among jurisdictions? Can they rescue the client when there is no applicable force majeure clause?
We will look at standard force majeure clauses and cases involving them: How are courts (mainly in England, but also in the U.S. and elsewhere) going to treat these? What is the effect of Russian counter-sanctions? How did courts treat such cases in the past, for example in the Ebola or SARS pandemics, in previous sanctions regimes, or, to the extent that cases have already been decided, in the current ones? When is an obligation completely avoided rather than merely postponed? How we can draft clauses more effectively to cover our clients' risks today? What can we expect in our own disputes?
We also will explore other avoidance mechanisms lawyers are using, such as MAC clauses, making claims under BITs, or deeming property unfit for use. And of course, we will look into related issues such as how parties deal with the obligation to mitigate losses.
The course will be directed by Professor Marc Polonsky, an English solicitor with extensive experience in Russia; but he expects to bring in guest lecturers with expertise to cover other jurisdictions apart from England.
The course is one credit, on Zoom, credit-no credit, with no exam. Credit will be based on attendance and participation online, and completion of course homework and group exercises.
Call for more information 495-649-2273
