Research On Force Majeure Of International Commercial Contracts In China

The resolution of force majeure disputes when the performance of international commercial contracts is impeded is an important issue that needs to be solved urgently.The inconsistent provisions on force majeure in various countries and the unclear agreement between the parties to the contract on force majeure clauses are the main reasons for force majeure disputes.On the basis of setting the national law as the contract applicable law,this paper compares and studies the relevant provisions at home and abroad,analyzes the problems existing in international commercial contracts,and proposes solutions based on judicial practice.Firstly,the relevant concepts of international commercial contracts are introduced,and the institutional origin and theoretical basis of force majeure are introduced.On this basis,through further analysis,it is believed that there are the following problems in force majeure in China’s international commercial contracts: first,the determination of force majeure tends to be strict;Second,the legal(agreement)consequences of violating the notification and proof obligations are not clear enough;Third,there are disagreements on whether third-party reasons can constitute force majeure;Fourth,the boundary between force majeure and change of circumstances is unclear;Fifth,there is uncertainty in the determination of the validity of force majeure clauses,and the parties’ understanding of legal terms may also be different;Sixth,there is uncertainty about whether public health emergencies and prevention and control measures are force majeure.Secondly,the constituent elements of force majeure,the obligation to notify and prove,the reasons of third parties,the relationship with the change of circumstances,and the force majeure clause are compared and analyzed.Finally,suggestions are put forward on the problems of force majeure of international commercial contracts in China.First,the criteria for determining the "unpredictability" of force majeure should be grasped leniently;Second,it should be made clear that the party that violates the notification and proof obligation should be liable for the enlarged loss;Third,as to whether third-party reasons can constitute force majeure,reference can be made to the "double obstacle" standard in the application of international unified substantive law;Fourth,the similarities and differences between force majeure and change of circumstances should be clarified,and force majeure should be used as the "cause" to specifically determine whether force majeure exemption/cancellation of the contract or change of circumstances should be applied/rescission of the contract;Fifth,for the agreed force majeure clause,it should be based on the principle of fairness,fully respect the autonomy of the parties,and at the same time ensure that the parties fully understand the meaning of the legal terms in the clause;Sixth,public health emergencies and prevention and control measures should be analyzed on a case-by-case basis,taking into account a variety of factors,and should not be generalized.