Now more than one year in, the COVID-19 pandemic continues to challenge global health, commerce, government, private organizations and our societal norms in nearly every respect. The dramatic and unprecedented measures employed to slow the spread of COVID-19 (e.g. travel restrictions, business closures, remote schooling, stay-at-home orders, quarantines) continue to force businesses and organizations into positions in which they are often unable to meet their contractual obligations.

Authors: Janet H. Kwuon

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It will be months, and likely years before the legal and economic costs of the pandemic become fully apparent. There is however, a legal issue that became immediately apparent at the pandemic's outset: the application of contractual force majeure provisions. Generally, force majeure provisions excuse parties from performing under a contract when unforeseen events – such as a global pandemic – render performance impossible or impractical. But the scope and application of force majeure provisions depend on a variety of factors. Contracts differ greatly in how they define force majeure and what types of events will trigger a force majeure provision. Courts in various jurisdictions also differ greatly in how they construe force majeure provisions. And there are a variety of remedies and consequences that may arise from force majeure disputes. Simply put, the law of force majeure is far from uniform, and businesses must consider a number of factors when faced with force majeure issues.

This paper is an overview and analysis of force majeure issues in US state jurisdictions. It also includes a comparative analysis of force majeure themes in nine international jurisdictions.

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