浏览数量： 0 作者： 钱颜 发布时间： 2020-05-13 来源： 中国贸易报
In the past six months, the emergence of the New Coronary Pneumonia epidemic has made the term "force majeure" frequently appear in the public eye. How to make use of force majeure clauses to ensure self-interest is a matter of great concern to China's foreign trade enterprises.
At the lecture on "Understanding and Application of the Force Majeure and Hardship Terms in Commercial Contracts" held recently, Gao Xiang, director of the International Banking Law and Practice Research Center of China University of Political Science and Law, gave an in-depth explanation of the force majeure and hardship regulations in international law and domestic law . He introduced the origin and development of force majeure and difficult situations, and combed the force majeure in the major countries of the civil law system and the Anglo-American law system, as well as the relevant provisions of the current major international rules.
Gao Xiang pointed out that the International Chamber of Commerce's "Force Majeure and Hardship Conditions 2020" is easier to understand and use than other model provisions. It is recommended that trade practitioners use the force majeure and hardship conditions for reference.
The ICC Force Majeure and Difficult Conditions Article 2020 provides a general definition of force majeure. Force majeure refers to an event or situation that prevents or prevents a party from fulfilling one or more obligations under the contract, and the affected party proves that: The obstacle is beyond its reasonable control; the obstacle cannot be reasonably foreseen when the contract is concluded; the consequences of the obstacle cannot be reasonably avoided or overcome by the affected parties.
It is understood that parties who have successfully invoked this force majeure clause have been exempted from performing their obligations under the contract and have been exempted from liability for compensation for any losses or any other relief for breach of contract from the time when the obstacle prevented the contract from being performed, provided that the counterparty of the contract is notified . If the notice is not issued in time, the exemption of liability will take effect when the notice reaches the counterparty of the contract. If applicable, the counterparty to the contract may suspend performance of its obligations from the date of notification. And if the period of the obstacles invoked substantially deprives both parties of the reasonable expectations under the contract, either party has the right to terminate the contract by notifying the counterparty of the contract within a reasonable period. Unless otherwise agreed, the parties expressly agree that either party may terminate the contract when the obstacle period exceeds 120 days.
Jiang Qi, the managing partner of Beijing Deheheng Law Firm, introduced the application of force majeure and difficult circumstances in practice to the participants. He said that force majeure and difficult circumstances, as one of the top ten legal risks of international trade, have a significant impact on the performance of international commercial contracts. Force majeure and difficult situations are both time-specific, cross-existing and so on, but the differences in content, nature, and consequences can not be ignored.
"When our courts hear relevant cases, they will particularly consider the causality and the size of the force majeure event and the inability to perform the contract." Jiang Qi suggested that when drafting a commercial contract, enterprises should fully consider the situation at the time of signing the contract. Considering the possible changes in the future, the force majeure clause and the difficult situation clause are incorporated into the contract, and the applicable law is clearly agreed to avoid being in a passive position when the dispute occurs.