Across the globe, contracting parties are experiencing performance-related concerns resulting from unprecedented orders to shelter-in-place, closures of non-essential businesses, global travel restrictions, and social distancing/isolation policies that have been implemented in response to the COVID-19 pandemic and public health crisis. As a result, parties may be reviewing their existing contracts, especially the force majeure provisions, to determine whether performance obligations can be modified or cancelled in light of COVID-19.
Force majeure is French for “superior force” and describes an event that cannot be anticipated or controlled that prevents a party from fulfilling its contractual obligations. Whether force majeure can be successfully invoked requires a detailed analysis of the contract at issue, applicable law, and the facts of the case.
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