Research On Force Majeure In International Commercial Contracts Under The Background Of COVID-1

With the global outbreak of COVID-19,the normal performance of international commercial contracts has been negatively affected to varying degrees.Against this background,whether COVID-19 is a force majeure and whether the contracting parties affected by the epidemic can invoke the exemption from the force majeure clause becomes one of the hot issues in the field of international commercial contracts.Based on the different applicable laws of the contract,different results may be produced.In the civil law system,most countries have legal provisions on the exemption of "force majeure".Even if the "force majeure" clause is not agreed in the contract,the legal status of its "implied clause" can still be used to claim exemption.However,if the plague or epidemic situation is not clearly specified as force majeure in the contract,disputes will arise in specific cases;In the common law system,there is no legal concept of "force majeure",but advocates that the obstruction of contract is its implied clause.If there is no explicit agreement on force majeure in the contract,the contract affected by the epidemic will not be able to invoke "force majeure" to claim exemption.Although the theory of hindered contracts can be applied on the grounds of COVID-19,because the Anglo American law system pursues the principle of strict performance of contracts,it is difficult to obtain the support of arbitral tribunal or court.China’s contract law clearly stipulates that the contract party can be exempted from liability according to force majeure,and "force majeure" can be treated as the "implied clause" of the contested international commercial contract.For the contract that can invoke the "force majeure" clause,if there is no obvious exception clause in the contract,the party claiming exemption shall bear the burden of proof;For contracts that cannot be exempted by force majeure,it is necessary to seek other alternatives,strengthen communication and coordination with foreign parties,and take remedial measures to reduce common losses.No matter whether the applicable law of the contract belongs to the common law system or the civil law system,in order to avoid disputes,Chinese enterprises should specify the scope of force majeure in the form of abstraction and examples when signing international commercial contracts,and clearly list the epidemic or plague as force majeure.If a Chinese enterprise is unable to perform the contract as agreed in the contract due to the epidemic,it shall timely notify the other party and mail the certificate of force majeure to the other party,so as to be in a favorable position in future arbitration or litigation.