Q&As

Can I rely on ‘Certificates of Force Majeure’ issued by the Chinese government confirming that coronavirus (COVID-19) is force majeure as a force majeure event under English law?

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Produced in partnership with Richard Colbey of Lamb Chambers
Published on LexisPSL on 16/03/2020

The following Commercial Q&A produced in partnership with Richard Colbey of Lamb Chambers provides comprehensive and up to date legal information covering:

  • Can I rely on ‘Certificates of Force Majeure’ issued by the Chinese government confirming that coronavirus (COVID-19) is force majeure as a force majeure event under English law?

Can I rely on ‘Certificates of Force Majeure’ issued by the Chinese government confirming that coronavirus (COVID-19) is force majeure as a force majeure event under English law?

While a force majeure certificate from China could not bind the English courts in their determination of whether such an event had occurred for the purposes of interpretation of a contractual clause subject to English law, it could be useful guidance as to whether the contract was capable of performance given the conditions prevalent in China.

Force majeure is not a precise term, and, indeed, a clause saying ‘…the usual force majeure clauses to apply’ has been held void for uncertainty (British Electrical v Patley Pressing). It has wider meaning than ‘act of God’, which is dependent upon there being no human intervention, and could not include, for instance, strikes or wars. For further information, see Commentary: What constitutes an act of God: Halsbury’s Laws of England [269]. The term is more widely used and recognised in civil law systems, particularly the French.

A well-drafted contract will identify specific events that amount to force majeure. Pandemic could fall among the events it applies to, but, unlike perhaps weather related events, it is less likely to bear directly on the ability to perform any particular contract.

The introduction of a force majeure clause may replace the common law doctrine of frustration,

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