A Study On Force Majeure Caused By Unilateral Economic Sanctions In Contract Disputes

In recent years,unilateral economic sanctions implemented with regional alliances or countries as the initiators of individual sanctions,while their legitimacy is controversial,have had an impact on the international economic and trade order and the multilateral trading system,and seriously affected the normal performance of the contract,with the help of their strong strength and the close dependence between countries formed after economic globalization.What follows is that in contract disputes,in order to reduce the losses caused by unilateral economic sanctions,the defense brought by the parties on the ground that "unilateral economic sanctions constitute force majeure" is increasingly common.For this kind of defense,we can start from the analysis of the severity of unilateral economic sanctions affecting the performance of the contract and its practical difficulties.Through the analysis and verification of unilateral economic sanctions meeting the essential elements of force majeure,we can draw the conclusion that unilateral economic sanctions can constitute force majeure,and combine with the detailed needs in the trial practice to clarify other requirements for unilateral economic sanctions to constitute force majeure defense,and provide suggestions on how Chinese courts can respond to the defense that unilateral economic sanctions constitute force majeure,specifically:First of all,unilateral economic sanctions affect the performance of the contract and there are difficulties to deal with.Unilateral economic sanctions are mostly based on the domestic law of the initiating country,not on the premise that the sanctioned party has an internationally wrongful act,and have the characteristics of diverse sanctions,authoritative initiating subject,broad and targeted sanctions,leading to severe impact on contract performance in the way of performance,progress and defense.However,to judge whether unilateral economic sanctions can constitute force majeure in the performance of the contract,we must first answer whether unilateral economic sanctions meet the general constitutive requirements of force majeure,supplemented by a full discussion of objective force majeure events and clause defenses,and also respond to the requirements of unilateral economic sanctions on other constitutive requirements.Secondly,unilateral economic sanctions can constitute force majeure.This is because,on the one hand,unilateral economic sanctions conform to the essential elements of force majeure.Although there are contradictions between them and the three elements of externality,unpredictability and force majeure,they can be solved through elastic treatment of the elements or interpretation of the essence of force majeure in the unilateral economic sanctions law,so that the two can coordinate with each other;On the other hand,unilateral economic sanctions,as a state act implemented by the government through legislation and issuing administrative orders,are force majeure events and can become part of the contract terms in the way of party autonomy.Thirdly,Attention should be paid to the detailed requirements for force majeure caused by unilateral economic sanctions.In view of the different details of the constitution of force majeure in the domestic laws of various countries,it is necessary to make prudent judgments on the three elements of degree,reasonable effort and causality from the perspective of unilateral economic sanctions.As far as the elements of degree are concerned,the standard should be to make contract performance fall into relative impossibility;As far as the element of reasonable effort is concerned,the standard should be the exhaustion of alternative means of performance;In terms of causation,the criteria of unilateral economic sanctions being the direct cause and the main cause of contract failure should be met.Finally,the Chinese courts need to improve the response to force majeure caused by unilateral economic sanctions as soon as possible.At present,the number of cases involving unilateral economic sanctions constituting force majeure in the court decisions of our country is not large,the details of the constitution are less discussed,and the criteria of the elements are not clear enough.It is suggested that the criteria of the elements should be clarified by improving the judicial interpretation and legislation.At the same time,it is also necessary to combine the provisions of China’s anti-sanctions law,discuss the situation in each case,and flexibly respond to the defense of force majeure caused by unilateral economic sanctions.