Hardship and Force Majeure in International Commercial Contracts - Institute Dossier XVII

No. P796E

ISBN : 978-92-842-0482-3

Force Majeure and Hardship are commonly invoked in international trade when unforeseen events occur making performance impossible or impracticable. Most national legislators provide rules to deal with these issues, but the specific solutions adopted in domestic laws vary substantially from one country to another.

In recent years the growing complexity of trade in a globalised world has greatly increased the number of situations where a party can invoke force majeure or hardship. Parties need to be able to analyse the nature and characteristics of force majeure and hardship and look for contractual clauses which can regulate these issues in conformity with their needs.

Written by international practitioners, this dossier explores the evolution of the rules on hardship, the ICC Clause on Hardship and the perspectives of contract adaptation by arbitrators.

The section on Force Majeure includes an overview of recent arbitral case law (impediment beyond sphere of control and risk of the obligor; foreseeability; causation; notice requirement), analysis of the ICC 2003 Force Majeure Clause and an update on its revision. Two other important themes are included: the relationship between force majeure and applicable law, general principles of law and trade usages as well as the impact of economic sanctions.

Code ISBN : 978-92-842-0482-3
Weight : 0.6000 kgs
Number of pages : 234
Publishing date : 2018
Language : English
Format in cm : 20.3*29.6

Foreword by Yves Derains

Introduction by Fabio Bortolotti and Dorothy Ufot, SAN


1.    The Evolution of the Rules on Hardship: by Marcel Fontaine

  • Introduction
  • The 1976 Study on Hardship Clauses
  • Hardship Regulated
  • The ICC Clause on Hardship
  • Conclusion
  • Notes

2.    Adaptation of Contracts by Arbitrators by Pascale Accaoui Lorfing

  • Introduction
  • The reality of contract adaptation by arbitrators
  • The perspectives of contract adaptation by arbitrators
  • Conclusion
  • Notes

3.    Rules on Force Majeure as Illustrated in Recent Case Law by Christoph Brunner

  • Introduction
  • The force majeure excuse as a general principle of law
  • Salient features of the force majeure excuse as illustrated by recent case law
  • Conclusion
  • Notes

4.    Analysing the ICC Force Majeure Clause 2003 by Prof Filip De Ly

  • Introduction
  • The ICC Force Majeure Clause 2003
  • Conclusion
  • Notes

5. Revision of the ICC Force Majeure and Hardship Clause by Prof Dr H. Ercüment Erdem

  • Introduction
  • new FM clause
  • new Hardship clause
  • conclusion and next steps

6. Force Majeure Clauses and their Relationship with the Applicable Law, General Principles of Law and Trade Usages by Klaus Peter Berger

  • Introduction
  • ICC award no. 4462 (National Oil Corporation v Libyan Sun Oil Company)
  • ICC award no. 19299 (Gujarat State Petroleum Corp. et al v Republic of Yemen et al)
  • ICC award no. 8873 (French claimant v Spanish respondent)

7. Economic Sanctions, Force Majeure and Hardship by Dr Mercédeh Azeredo da Silveira

  • Introduction
  • Characterisation of economic sanctions from a private law perspective
  • Application of economic sanctions by domestic courts and arbitral tribunals
  • Effects of economic sanctions on the rights and obligations of private operators under international law instruments        


About the Authors

About the Editors



Pascale Accaoui Lorfing

Mercédeh Azeredo da Silveira

Klaus Peter Berger, LL.M.

Christoph Brunner

Filip De Ly Prof

Dr H. Ercüment Erdem

Marcel Fontaine

Fabio Bortolotti

Dorothy Ufot, SAN

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