Litigating Force Majeure, Impossibility and Other Contractual Performance Issues: Lessons Learned in 2020

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


Conducted on Thursday, May 27, 2021

Recorded event now available

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Program Materials

This CLE webinar will explore resolving disputes over and litigating the force majeure clause and related doctrines of impracticability and impossibility when performance is delayed or becomes too difficult or is not possible. The program will review the case law developments and how litigants have faired in raising force majeure and related defenses.

Description

To allocate the risk of nonperformance when circumstances arise beyond their control, parties usually include a force majeure clause in their contracts.

Closely related to force majeure is the impossibility doctrine that may apply if something necessary for performance is destroyed or if government mandates render performance illegal.

Although these doctrines have seldom been invoked and the applicable contract provisions may vary, the 2020 pandemic made them of great interest. Evolving pathogens and political activism make these provisions especially important, particularly when negotiating contracts. Counsel, however, now have more decisions reflecting the trends in this area and what provisions provided the most flexibility and protection.

Listen as our authoritative panel discusses what litigating force majeure defenses involves, the ramifications of settlement, the nuts and bolts of statutes of limitations, discovery issues, notice requirements, deadlines that have been or may be triggered, and damages. The panel will also review how well each argument has been received.

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Outline

  1. Force majeure clauses and related doctrines
    1. Types of cases in which they have been raised
    2. Industries in which the doctrines appear most frequently
    3. The relative success of arguments made
  2. Timeliness and waiver
  3. What facts must be shown
    1. Whether an objective or subjective standard applies to the definition of impossibility
    2. Whether the party invoking the defense contributed to the event
    3. In what fact patterns have force majeure proved most valuable
  4. Conflict of laws issues
  5. Settlement

Benefits

The panel will review these and other critical matters:

  • How force majeure clauses and related doctrines of impracticability and impossibility are similar and different
  • Notice requirements and deadlines
  • How and when such defenses are best raised
  • Burdens of proof
  • Likely fact issues
  • Choice-of-law issues
  • Best drafting practices for revising force majeure provisions

Faculty

Nielsen, Matthew
Matthew G. Nielsen

Partner
Bracewell

Mr. Nielsen represents companies, boards, executives, and securities firms and professionals in internal and government...  |  Read More

Shargel, David
David A. Shargel

Partner
Bracewell

Mr. Shargel is a business litigator with extensive experience representing clients in complex commercial disputes and...  |  Read More

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Strafford will process CLE credit for one person on each recording. All formats include program handouts.

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