Research On Defense In International Commercial Contract Disputes

In the late 2019,COVID-19 broke out.Based on the bad effects caused by the epidemic in a short time,in January 2020,the WHO declared it a "public health emergencies of international concern",which caused widespread concern of the international community.Public health emergencies have had a significant impact on international trade.Affected by the epidemic and relevant government actions,there are obstacles to the performance of many international commercial contracts,and the number of violations is increasing.In view of the possible risk of breach of contract in the performance of international commercial contracts,what kind of defenses and how to apply these defenses are of great significance to the proper solution of the problem of contract performance.The breaching party will usually defend against force majeure,change of circumstances and other reasons.From the perspective of international law,civil law countries represented by Germany and France generally stipulate the system of force majeure and change of circumstances in the form of written law,while common law countries stipulate the theory of "frustration of contract".After the outbreak of the epidemic,China has issued a series of judicial interpretations,confirming that COVID-19 belongs to force majeure.Some scholars believe that under certain circumstances,there is still room for change of circumstances.Invoking different defences in international commercial contract disputes will have different legal consequences.In the face of the uncertainty that public health emergencies constitute defenses,in order to safeguard the interests of the parties to international commercial contracts and the international trade order,the parties should minimize this uncertainty through autonomy of will and good faith performance;Courts and arbitration institutions should apply the law fairly,ensure uniform adjudication standards,and promote the parties to continue the transaction as far as possible,so as to maintain the safety of the transaction;Government departments should focus on the pre alarm and in-process service of public health emergencies to help the parties get through the difficulties.