Is it possible to allege “Force Majeure”?

作者/编者:Wu Qing, Linda Liang
作者单位:金杜律师事务所
创作年代:2018
出处/来源:金杜律师事务所
学科分类:民事诉讼法与仲裁法学
所属机构:金杜律师事务所
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摘要

This article focuses on whether an enterprise could invoke the “force majeure” clause in the business contract as a reasonable excuse of failure to perform obligations if it is ordered to stop production due to the environmental protection problems, and how to prevent and reduce the risk for supply-chain breaking due to the environmental protection problems. First of all, if an enterprise is ordered to stop production by the government because of its own violation of environmental laws and regulations, a court will not order that force majeure is a ground of reasonable excuse of failure to perform obligations, the reason is that the enterprise has the responsibility to obey the law. Secondly, if the enterprise obeys the law, the government orders the enterprise to stop production due to the contingency plans for heavily polluted weather, and the enterprise alleges this shall be a force majeure, it is still very unlikely to be supported by the court. In practice, a lot of companies select the suppliers and review their compliance in a very simple and basic way. With the rapid change of laws and regulations in the field of environmental protection and the more stringent law enforcement in recent years, the company’s previous review standards are generally unable to help to prevent and reduce the risk for supply-chain breaking due to the environmental protection problems. Hence, companies are recommended a “three-step” supplier management measure to reduce risks, that is, a comprehensive investigation, a focused “physical examination”, and a periodic follow-up.

关键词: Force Majeure; Environmental Protection; Prevent and Reduce Risks

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