Impact of Force Majeure on Contracts

1. Impact of Force Majeure on Contracts Presentation at the Indian Council of Arbitration By Mohit Saraf Partner Luthra & Luthra Law Offices Luthra & Luthra Law Offices

2. Agenda • Basic concept of Force Majeure • Doctrine of Frustration distinguished • Force Majeure in Commercial Contracts • Examples • Distinguishing Features • Effect of Force Majeure • Issues Luthra & Luthra Law Offices

3. Basic Concept of Force Majeure • Definition • any event or circumstance or combination of events and circumstances which materially and adversely affect the performance of the obligations of either Party to a contract and is not within the reasonable control (directly or indirectly) of the Party affected. • Civil law concept • Foreseeability and fault Luthra & Luthra Law Offices

4. Basic Concepts of Force Majeure (Cont’d.) • Elements of Force Majeure: • Events or circumstance must be unforseen or unforeseeable at the time of making of contract • Beyond the control of affected party • Not caused by any default or negligence of affected party • Common law • Contractual obligation-strict liability • Frustration of contract Luthra & Luthra Law Offices

5. Doctrine of Frustration Distinguished • Frustration • Performance becomes impossible • Performance becomes illegal • Events outside the control of the parties defeat the purpose of the contract • Discharges the contract • Indian Contract Act • Section 56 • Section 32 Luthra & Luthra Law Offices

6. Doctrine of Frustration Distinguished(Cont’d.) • Section 32 - Contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened. If the event becomes impossible such contracts become void. • Section 56 -An agreement todo an act impossible in itselfis void. A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful Luthra & Luthra Law Offices

7. Doctrine of Frustration Distinguished(Cont’d.) • Satyabrata Ghose v. Mugneeram Bangur & Co. AIR 1954 SC 44 • Alopi Parshad v. Union of India AIR 1960 SC 588 • Naihati Jute Mills Ltd. v. Khyaliram Jagannath AIR 1968 SC 522 • IFCI v. Cannanore Spinning and Weaving Mills AIR 2002 SC 1841 Luthra & Luthra Law Offices

8. Doctrine of Frustration Distinguished(Cont’d.) • Contracts, which contain an implied or express term for the discharge of the contract upon happening of certain circumstances, would be discharged under the terms specified in the contract and covered under Section 32 and would be outside the purview of Section 56 • Section 56 – rule of positive law, not will of parties. • Frustration – change of circumstances so fundamental as to strike at the root of the contract as a whole. • Frustration - performance of the contract comes to an end but the contract would still be in existence for purposes such as the resolution of disputes. Luthra & Luthra Law Offices

9. Force Majeure in Commercial Contracts • Exception to the normal contractual consequence of breach of contract. • Rationale • Negotiation • Location of the Project • Legal systems • Political governance • Classification • Political Force Majeure ( State/governmental authority not excused) • Non-Political/ Natural Force Majeure Luthra & Luthra Law Offices

10. Examples Includes, without limitation : • Strikes or other industrial action; • War (whether or not declared) or other hostilities (including terrorist action, sabotage, riot or insurrection); • Blockage or embargo; • Adverse natural phenomena (earthquake, hurricane, storm, fire, flood, volcanic eruption); • Epidemic; • Change of law or regulation (including a change in the terms of any approval or consent) Luthra & Luthra Law Offices

11. Distinguishing Features • Impossibility of performance versus “material & adverse effect” • Notice/ reporting requirements • Onus on affected party • Duty to mitigate • Excuse only till performance is affected • “Including, without limitation” Luthra & Luthra Law Offices

12. Effect of Force Majeure • Affected party not in breach • Suspension of obligations • Payment obligations not excused • Accrued liabilities not excused • Termination after protracted Force Majeure Luthra & Luthra Law Offices

13. Effect of Force Majeure(Cont’d.) • Concession Agreement • Extension of term • Compensation • Supply Agreement • Take or pay liability • Construction Contracts • Contractor entitled to extension of time and/ or compensation. • Fixed Price fixed term contract Luthra & Luthra Law Offices

14. Issues • Adverse effect on party • Economic hardship • Inconsistent Force Majeure provision among project contracts • breach under one contract e.g. Construction contract providing for extension of time upon occurrence of Force Majeure; same relief must be available in the off-take sales agreement. The result of an inconsistency would be that the project company would be unable to comply with the sales agreement due to delay in completion of the project. Result - payment of damages and/or a terminated sales contract Luthra & Luthra Law Offices

15. Issues (Cont’d.) • “Resurrection” Clause • To cure inconsistent force majeure provisions • Party not to receive relief greater than that available to the other party under associated contracts. • Mitigation • Insurance • Political Risk insurance (ECAs & Multilateral Agencies) • Business interruption insurance • All risk insurance • Self insurance • Financial Balance Luthra & Luthra Law Offices