Proper Risk Allocation: Force Majeure Clause

2022 ◽  
Vol 14 (1) ◽  
Author(s):  
William C. Hennings ◽  
Sarah A. Abdellatif ◽  
Awad S. Hanna
Keyword(s):  
Risk Allocation ◽  
Force Majeure

scholarly journals PRINSIP PROPORSIONALITAS DAN GOVERNANCE TERHADAP ALOKASI DAN TRANSFER RISIKO DALAM SKEMA KERJASAMA PUBLIC-PRIVATE PARTNERSHIP (PPP)

Yuridika ◽  
2017 ◽  
Vol 32 (3) ◽  
pp. 541
Author(s):  
Yuniarti Yuniarti ◽  
Fifi Junita
Keyword(s):  
Risk Sharing ◽  
Public Private Partnership ◽  
Government Support ◽  
Risk Allocation ◽  
Infrastructure Development ◽  
Transfer Scheme ◽  
Private Partnership ◽  
Force Majeure ◽  
The Government ◽  
High Level

The high level of Foreign Direct Investment (FDI) is also supported by the availability of infrastructure to the remote area where the investment will be implemented. However, with limited funds from both APBN and APBD, infrastructure development can not be fully done by the government. Therefore, the government will cooperate with the investor (private) in the implementation of infrastructure development known as public private partnership. The main problem in implementing PPP is the allocation of risk to PPP projects. The different bargaining positions between the government and the private sector resulted in the fact that most of them impose risks on private parties (private). Implementation of PPP is closely related to the emergence of various risks including and not limited to regulatory risks, force majeure, etc. If there is no risk allocation arrangement proportionally based on governance principles, it weakens the pattern of PPP cooperation in Indonesia. PPP as one form of risk sharing in infrastructure investment should not release the role and government support to private parties / investors. Even in practice, PPP implementation in Indonesia only relies on BOT (Build Operate and Transfer) scheme which is expected to minimize government support in project implementation. This will ultimately lead to project failure.

12. Discharge by frustration: subsequent impossibility

2021 ◽  
pp. 599-627
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Theoretical Basis ◽  
Case Law ◽  
Contract Law ◽  
Law Reform ◽  
Risk Allocation ◽  
Force Majeure ◽  
The Subject ◽  
Contractual Obligations ◽  
Contractual Risk ◽  
Selection Of

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Without the fault of either party, a contract may be automatically discharged due to frustration that renders further performance of the contract impossible, illegal, or radically different from what was originally conceived. In this case, the parties will be excused further performance of their contractual obligations. However, the frustration doctrine applies only where there is no express provision in the contract (a force majeure clause) allocating the risk. This chapter, which examines the frustration doctrine and discharge for subsequent impossibility, first considers the contractual risk allocation before turning to the theoretical basis for the doctrine of frustration. It then discusses limitations on the operation of the frustration doctrine before examining the effects of frustration and the effects on the parties’ positions of the Law Reform (Frustrated Contracts) Act 1943.

scholarly journals ‘PERICULUM VERBUM GENERALE EST’: RISK ALLOCATION IN THE COMMENTARIES OF JACQUES CUJAS

2021 ◽  
Vol 21 (4) ◽  
pp. 293-331
Author(s):  
Stanisław Kordasiewicz
Keyword(s):  
Roman Law ◽  
16Th Century ◽  
Risk Allocation ◽  
Future Change ◽  
First Case ◽  
Force Majeure ◽  
Legal Principle ◽  
Legal Consequences ◽  
The Way

Jacques Cujas was a French humanist and one of the most distinguished 16th-century legal experts. This paper analyses the rules governing liability and the meaning of periculum (risk) in his commentaries to Roman law. My study is focused on two examples which offer surprising interpretations of risk. The first case concerns a person who lost an object given for valuation. Here Cujas uses the term periculum in two different meanings. The first is general and covers all types of irresistible events. The second is limited to only one type of event – theft. This distinction is fundamental for the evaluation of the legal consequences arising from the loss of the object. Te inspector would have had to bear the risk of theft (periculum furti), but not other risks, especially not those related to force majeure. The second case I discuss deals with the complexities of risk allocation in the contract of sale. In one of his earlier commentaries, Cujas accepted the Roman legal principle of periculum emptoris – that the risk of the loss of the object sold should be on the buyer. At the same time, in his discussion of particular cases Cujas was flexible in allocating various risks to either of the parties, thus paving the way for his future change of mind on periculum venditoris.

RISK ALLOCATION IN PETROLEUM JOINT VENTURES

1996 ◽  
Vol 36 (1) ◽  
pp. 580
Author(s):  
S.J. Barrymore
Keyword(s):  
The Other ◽  
Management Technique ◽  
Risk Allocation ◽  
Short Term ◽  
Loss And Damage ◽  
Force Majeure ◽  
Property Loss ◽  
Offshore Development ◽  
A Minor ◽  
Contractual Risk

This paper will consider aspects of contractual risk allocation in the energy industry.The industry is a mature one, with sophisticated and experienced contractors and operators. Hydrocarbons have uniquely hazardous characteristics making all parties, the State and the community acutely aware of the need to control the means of its discovery, appraisal, production and transportation.The Exxon Valdez and Piper Alpha disasters are paradigm examples of the drastic consequences and the magnitude of the risk, that can flow from what might otherwise be considered 'a minor act or omission'.Risk management is based on the premise that it is in the interest of any project that certain risks be borne by certain parties, normally the person in the best position to control the risk concerned. A realistic approach to allocation of risk will reduce costs and claims and prevent over or under insurance. Where a risk which can be efficiently absorbed or covered by one party is passed to another, the short-term gain may be more than offset by the other party's increased charges or defensive practices for absorbing the risk or its inability to perform following a liability arising from that risk.As noted above, the risk allocation and management technique dealt with in this paper is contractual. Parties seek to distribute and allocate risks by the use of clauses of indemnity, limitation, exclusion, insurance and force majeure. Each of these contracts allocate risk to one party or the other for matters such as personal injury, property loss and damage, public liability, pollution, negligent workmanship and indirect loss or damage.This paper will examine the structure of these clauses (other than insurance) in the context of offshore development projects, centring around the joint operating agreement made between an operator and the licence holders, and a consideration of contracts entered into between the operator and its participants and the project contractors and project insurers. It will also address the issue of conduct in breach of statute and the effect of such conduct on indemnity and insurance agreements.

12. Discharge by frustration: subsequent impossibility

2019 ◽  
pp. 571-600
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Theoretical Basis ◽  
Case Law ◽  
Law Reform ◽  
Risk Allocation ◽  
Force Majeure ◽  
The Subject ◽  
The Law ◽  
Contractual Obligations ◽  
Contractual Risk ◽  
Selection Of

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Without the fault of either party, a contract may be automatically discharged due to frustration that renders further performance of the contract impossible, illegal, or radically different from what was originally conceived. In this case, the parties will be excused further performance of their contractual obligations. However, the frustration doctrine applies only where there is no express provision in the contract (a force majeure clause) allocating the risk. This chapter, which examines the frustration doctrine and discharge for subsequent impossibility, first considers the contractual risk allocation before turning to the theoretical basis for the doctrine of frustration. It then discusses limitations on the operation of the frustration doctrine before examining the effects of frustration and the effects on the parties’ positions of the Law Reform (Frustrated Contracts) Act 1943.

Power Projects and Covid-19: A Practical Analysis of the Relevance of Force Majeure Clauses under the Standardised Power Purchase and Implementation Agreements of Uganda

2020 ◽  
Vol 1 (2) ◽  
pp. 189-193
Author(s):  
Aisha Naiga ◽  
Loyola Rwabose Karobwa
Keyword(s):  
Renewable Energy ◽  
Renewable Energy Sources ◽  
Clean Energy ◽  
The State ◽  
Energy Sources ◽  
Policy Goals ◽  
Force Majeure ◽  
Practical Analysis ◽  
Energy Justice

Over 90% of Uganda's power is generated from renewable sources. Standardised Implementation Agreements and Power Purchase Agreements create a long-term relationship between Generating Companies and the state-owned off-taker guaranteed by Government. The COVID-19 pandemic and measures to curb the spread of the virus have triggered the scrutiny and application of force majeure (FM) clauses in these agreements. This article reviews the FM clauses and considers their relevance. The authors submit that FM clauses are a useful commercial tool for achieving energy justice by ensuring the continuity of the project, despite the dire effects of the pandemic. Proposals are made for practical considerations for a post-COVID-19 future which provides the continued pursuit of policy goals of promoting renewable energy sources and increasing access to clean energy, thus accelerating just energy transitions.

FORCE MAJEURE, CHANGE OF CIRCUMSTANCES AND TERMINATION OF CONTRACT

2016 ◽  
Vol 3 (1) ◽  
pp. 31-44
Author(s):  
Shiyuan Han
Keyword(s):  
United Nations ◽  
Contract Law ◽  
Unified Model ◽  
The Other ◽  
Final Decision ◽  
Dual Model ◽  
Chinese Law ◽  
Force Majeure ◽  
United Nations Convention ◽  
Distinct Line

It is impossible to draw a distinct line between force majeure and change of circumstances, because the two overlap. In order to regulate both force majeure and change of circumstances, the United Nations Convention on Contracts for the International Sale of Goods (CISG) has adopted a unified model in article 79, whereas Chinese law adopts a dual model by treating them as different things and regulating them in different articles. Where the purpose of a contract becomes impossible to achieve because of a force majeure and both the CISG and Chinese Contract Law (the CCL) adopt the same model of termination of the contract, the contract should be terminated by one party with a notice to the other party instead of ipso facto avoidance. In a case of a change of circumstances, in order to terminate the contract, both the CISG and the CCL actually follow the path of raising an action by a notice of avoidance or termination to theother party. Both approaches have their merits and demerits but the differences between them in practice are not as large as presumed. Where force majeure and change of circumstances overlap each other, possible ways for termination of the contract are for a party either to choose their preferred solution or to follow the lex specialis derogat generali. The latter way is preferred in this article; and while in an action for termination the judge may balance the interests of both parties in making a final decision, the uniform application of the law, the safety of the transaction and the fairness of the judgment may be ensured in so doing.

THE USE OF FORCE MAJEURE BY ATTORNEY AGAINST TAXATION CRIME

2018 ◽  
Vol 2 (2) ◽  
pp. 182
Author(s):  
Adnan Hamzah ◽  
Muhammad Djafar Saidi ◽  
Amir Ilyas
Keyword(s):  
Use Of Force ◽  
Normative Study ◽  
Information Transparency ◽  
South Sulawesi ◽  
Additional Investigation ◽  
Force Majeure ◽  
Directorate General ◽  
Financial Losses

<p>This study aimed to see the effectiveness of using force majeure along with the challenges the attorney might encounter against taxation crime. It was a normative study with statute and case approaches. The study was conducted in High Prosecutor General office in Makassar and Directorate General of Tax South Sulawesi. The result showed that the force majeure by attorney against taxation crime might be applied in the form of detention to complete particular documents and conduct an additional investigation before filing the case to the court. The challenges in implementing the force majeure by attorney against taxation crime might come from legal and non-legal factors. The former involved confusing phrase of ‘investigation termination’ by attorney and the light different view on state financial losses between under Corruption Law and under General Act of Taxation, and the later involved the professionalism of attorney and information transparency. </p>

Sign in / Sign up

Export Citation Format

Share Document