With an increasing focus on force majeure due to the COVID-19 outbreak, BIMCO has gathered a drafting team to develop a free-standing force majeure clause for use in a variety of contracts.
Successfully invoking “force majeure” under a charter party or other contract depends on many factors. One essential element for contracts governed by English law is that the agreement must contain a clause that defines what constitutes a “force majeure” event and sets out the circumstances under which the clause can be invoked to excuse liability for non-performance. That is because force majeure is not a free-standing legal concept under English law, as opposed to some civil law countries such as France, where it is written into the Code Civil. English law operates instead with frustration, which has a reputation of being almost impossible to attain.
Although several BIMCO contracts include a force majeure clause, this clause was never published as a stand-alone clause in BIMCO’s clause library. The drafting team met for the first time on 1-2 September to discuss issues such as:
Inspiration is drawn from the ICC Force Majeure Clause 2020. The experts on the drafting team – Inga Frøysa, Klaveness, Nicola Ioannou, Oceanfleet, Peri Ertugruloglu, Glencore Agriculture, Rory Butler, HFW, Andrew Rigden Green, Stephenson Harwood, and Philip Stephenson, The Standard Club - will continue their deliberations at the next meeting in October.
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