Comparative Analysis Of English,Kenyan And Chinese Law On Supervening Events In Time Charterparty

This research paper is centered on the common law concept of supervening events and the effect such events have on a time charterparty.It takes a comparative approach in analyzing how contract laws pertaining to supervening events are applied in English,Kenyan and Chinese laws.Inspired by the current raging COVID-19 pandemic,the research narrows down to infectious disease outbreaks/pandemics and seeks to determine if,when and how they can be considered to be supervening events.Although there is no equivalent term in Chinese law to ‘supervening events’,legal concepts in Chinese law addressing unforeseen contingencies occurring after the formation of a contract are discussed.Specifically change of circumstances and force majeure are compared to the English and Kenyan doctrine of frustration.Focus is given to the analysis of clauses in charterparties that are used to mitigate risk in the event of the occurrence of unforeseen events.This thesis is divided into four parts:Chapter I of this thesis will set a theoretical basis for the research and provide a comparative analysis on the historical development on laws pertaining to supervening events in English,Kenyan and Chinese law.In chapter II a comparative analysis of the law on frustration as applied in English law and Kenyan law will be made against the doctrine of material change of circumstances in Chinese law.In chapter III an in-depth comparative analysis will be made on the concept of force majeure as is applied in English,Kenyan and Chinese laws.Chapter IV,a highlight chapter,will apply the legal doctrines to the infectious disease outbreak/pandemic to charter party.It discusses legal points of concerns that have arisen and that are peculiar to the current pandemic and how they affect time charterparties,and how the corresponding courts in the United Kingdom,Kenya and China are addressing the related cases.This research finds that,as compared to the rigid common law approach to contract law in English and Kenyan law,Chinese law and judicial practice has evolved to accommodate the drastic impact that COVID-19 has had on commercial practice and more specifically in maritime practice.However recent legislations passed in both countries seem to indicate a softening stance.The research further found that other jurisdictions could borrow best practice lessons from the Chinese response to COVID-19.Such lessons include first,flexibly adapting to the changing circumstances by passing new laws that may be permanent or temporary to solve the pandemic situation.Second,existing laws that prove to be more oppressive than useful under the changed circumstances may be temporarily or permanently suspended and finally,the use of judicial practice directions may be adapted,by applying the Supreme People’s Court to issue Guiding Opinions regarding handling civil cases related to the COVID-19 Epidemic,as a guiding template in addressing situations where supervening events occur and affect performance of obligation of the parties to a time charterparty.