Force Majeure Clauses in Post-COVID-19 Contracts: Drafting and Enforcing Provisions

Recording of a 90-minute CLE webinar with Q&A


Conducted on Thursday, May 28, 2020

Recorded event now available

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Program Materials

This CLE webinar will focus on drafting force majeure clauses to address the issues and factors required by U.S. courts for enforcement, as well as addressing the international reach and interpretation of what "superior force" may mean on a global level. The panel will guide counsel on the precise nature of the language needed, what constitutes unforeseeable, the causation between an event and non-performance, and evidence that effects are so severe that obligation cannot be performed.

Description

As the global economy faces the unprecedented impacts of the outbreak of COVID-19, many businesses are defaulting on contractual obligations. To mitigate some liability, companies are looking at the force majeure clause, a boilerplate feature of most agreements. Although not often negotiated or considered by counsel, force majeure provisions provide an affirmative defense to default. However, the question remains--does a pandemic, like COVID-19--invoke the elements of this clause?

Amid the current economic uncertainty, businesses must determine whether circumstances presented by COVID-19 meet the legal requirements of force majeure and that such provisions are sufficiently specific to be enforceable. For a party to invoke the clause, the event must be unforeseeable. Boilerplate agreement language often includes a laundry list of events defining an "act of God," but a court may or may not agree that COVID-19 is a covered event. Further, enforcement of a force majeure clause requires that the company prove that the force majeure event defined in the contract caused a party's inability to perform a contract obligation.

Force majeure enforcement is also highly contingent on the country of implementation and, in this circumstance, the impact of the pandemic on a region's supply chain and workforce. China and the European Union use varying definitions for enforcement, and anticipating issues that may arise in a default informs counsel on how to draft the optimal provision to protect a business from future catastrophic losses.

Listen as the expert panel provides practical advice on drafting a precise and enforceable force majeure provision so counsel may save their clients from unforeseen circumstances and the next global emergency.

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Outline

  1. Elements of force majeure
    1. Unforeseeable
    2. Causation
    3. Definitions of acts of God
    4. Severity of event
  2. Prior global force majeure events and court decisions
  3. Global enforcement
    1. China
    2. European Union

Benefits

The panel will review these and other key issues:

  • What are the necessary elements of force majeure provisions?
  • How might the definition of unforeseeable impact enforcement?
  • How is the nexus between the inability to perform and the force majeure event determined?
  • How does global enforcement of force majeure provisions vary in China and the European Union?

Faculty

Massiatte, Michael
Michael W. Massiatte

Of Counsel
DLA Piper

Mr. Massiatte focuses his practice on labor and employment matters, including employee relations, employee benefits,...  |  Read More

Rodriguez-Taseff, Lida
Lida Rodriguez-Taseff

Partner
DLA Piper

Ms. Rodriguez-Taseff has extensive experience as lead counsel handling state and federal jury and non-jury trials,...  |  Read More

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Strafford will process CLE credit for one person on each recording. All formats include program handouts. To find out which recorded format will provide the best CLE option, select your state:

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48 hours after event

$297

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DVD

10 business days after event

$297 + $24.45 S&H