Will Force Majeure Certification Be Recognized By Customers? Interpretation Of Multinational Law!

At present, the new crown pneumonia epidemic has caused widespread concern at home and abroad. In view of the negative impact of the epidemic on the performance of international trade contracts or contractual contracts of some enterprises, China Council for trade promotion has made it clear that it can apply for certification of force majeure according to the application of the enterprise.

According to the 117th contract law of the People's Republic of China, force majeure is an objective situation that cannot be foreseen, unavoidable and insurmountable. According to the provisions of the general principles of civil law and the contract law, combined with the relevant jurisprudence issued by the courts in China during the period of SARS, the epidemic is now an objective situation which can not be foreseen, unavoidable or insurmountable, and is a force majeure. In international trade scenario, force majeure may refer to accidents which are not based on the will of the parties and not controlled and avoided by the parties.

Since the outbreak of the epidemic, Zhejiang letter insurance has maintained close communication with overseas recovery channels, paying close attention to the dynamics of various countries' cases and studying relevant laws and regulations. With the information provided by many overseas channels, the contents of this issue are listed below for your reference.

Discussion on the effectiveness of force majeure proof of domestic laws and regulations of various countries and China Council for Trade Promotion

North America (USA)

The 2-615 article of the unified commercial code of the United States (U.C.C) stipulates that the performance of the contract can not be fulfilled. If the agreement between the buyer and the seller fails to perform due to the occurrence of an accident, the seller's delay in delivery or all or part of the delivery shall not be regarded as a breach of the obligations under the contract of sale. The article also stipulates that the occurrence of the accident must be the basic prerequisite for the establishment of the contract, or the accident is due to the good faith of the parties in compliance with the existing regulations or orders issued by the foreign country or the country (whether the rule or order is proved invalid in the future).

It should be noted that on the surface, only the seller can claim that he can not get the exemption from the execution. In fact, the buyer may also claim exemption from the failure to perform the contract. Generally speaking, because of the different stipulations of the trade contract and the specific circumstances of the case, different interpretations of the court may produce different interpretations and cognizance.

South America (Brazil, Mexico, Argentina, Peru)

In the case of this epidemic, the court shall accept the proof of force majeure of the China Council for trade promotion as additional evidence, but it shall not be the sole evidence. If a case of force majeure is encountered, the judge will ask the parties to provide additional evidence to decide whether or not to make an affirmation of force majeure. Such as media coverage, contract limitation, bill of lading, WTO, who, international and local laws, etc.

Asia

India

In view of the fact that the China Council for the promotion of trade is an official body, the certificate of force majeure issued by it shall be accepted as valid evidence. If the trade parties stipulate the relevant provisions of the force majeure event in the contract, they shall be executed according to the contract. If there is no relevant provision, or if no infectious disease or epidemic situation is identified as force majeure, the principle of contract failure in the fifty-sixth article of the contract law of the India shall apply, that is, an event after the signing of the contract, which causes the contract to perform unlawfully, fails to perform the contract and is not subject to the control of the performing party, may declare the contract invalid.

The Philippines

At present, there are no relevant cases or regulations concerning the force majeure proof of the new coronavirus issued by China Council for the promotion of trade. However, according to the 1174th article of the Philippines civil code and the precedent of the court, force majeure can be regarded as the reason to exempt the obligor from liability.

Europe

Russia

There are no court cases related to this incident. However, the Russian chamber of Commerce has recommended and encouraged enterprises to take the force majeure into consideration and consider postponing the fulfillment of the contractual obligations until the end of the force majeure situation. In this incident, with the development of the situation, not only the central government has the right to issue regulations, but also the local governments have the right to implement restrictive measures.

Britain

If a force majeure clause is stipulated in the contract, how to prove and apply the clause depends on the specific trade contract. If there is no force majeure clause in the contract, the principle of contract failure in common law can apply in England and Welsh according to the applicable law of the contract.

Germany, France

The proof of force majeure of CCPIT can be provided as indirect evidence. Both countries have the concept of force majeure in the law, but the court must decide whether or not the force majeure is a disclaimer according to the specific circumstances of the case. Based on this, global public health events, and even infectious diseases in some areas may be recognized as force majeure. At present, there is no such court case or government statement related to force majeure for reference, and attempts to collect relevant cases of SARS epidemic in 2003 have not been found in Germany's Supreme Court and French courts.

Italy

It is generally believed that the epidemic is an unforeseeable event and should be a force majeure. The 1218th provision of the Italy Civil Code stipulates that the debtor who fails to perform the contractual obligation shall bear the responsibility for the corresponding loss, unless it can be proved that his failure to perform shall not be attributed to it. "Inability to perform" emphasizes absolute possibility. "It should not be attributed to its" emphasis, which is beyond its control, unforeseen and unavoidable.

Spain

It is generally believed that the epidemic is an unforeseeable event and should be a force majeure. The 1105th article of the Spanish Civil Code stipulates that no party shall be held responsible for unforeseeable or even foreseeable events beyond the scope of liability expressly expressed and implied by law. The application of this clause must meet the strict standard. The civil code does not consider the system of cancelling or changing the contract according to the circumstances. Nevertheless, the Spanish supreme court usually cites another principle similar to the principle of "contract failure".

Africa (South Africa, Garner)

The court accepts a force majeure defense, but a strict interpretation of Force Majeure will apply. In addition to the relevant evidence of China Council for the promotion of trade, additional evidence may be needed, such as the WHO has declared the new coronavirus epidemic as a world emergency health event.

Judging from the relevant laws and regulations and judicial practice of various countries, there may be some differences in the determination of whether the "epidemic" constitutes a "force majeure" and whether the two parties can be exempt from breach of contract in different cases. We will continue to focus on relevant developments and cases.

Special note: the above information is for reference only, please export enterprises independently judge according to specific circumstances in practice.