第二讲国际商事合同结构.ppt

* * * * A party invoking force majeure must take all reasonable means to limit the effect of the impediment or event invoked upon performance of its contractual duties so the new formulation of force majeure is not without limits in the relief a party can reasonably expect to achieve. However, the scope of the ICC 2003 version introduces into force majeure analysis an expansion of subjective considerations, and the possibility of relief from the performance of contractual obligations in circumstances not traditionally associated with force majeure events. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Traditional formulations of force majeure usually are based on impossibility of performance. The threshold of impossibility is high but, if reached, the contracting party suffering the force majeure event is relieved of contract performance obligations as long as the force majeure event continues. The ICC 2003 clause adopts a considerably lower threshold based upon impediments that are beyond the reasonable control of the party. A party also may be excused from performance of its contractual obligations as a result of a third partys inability, as a result of similar impediments, to perform all or part of the contract that the third party has been engaged to perform. There is a long list of impediments and many are familiar force majeure events: war, acts of God, insurrection, etc., but others require careful consideration since they may absolve a party from performance of contractual obligations as a result of circumstances quite different from the hostile actions or natural disasters most often equated with force majeure circumstances. For example, compliance with any law or governmental order or prolonged breakdown of...telecommunication suggest circumstances that may have little to do with unanticipated external events, but might nevertheless relieve a party from its contractual obligations. * IN WITNESS WHER