Recent Developments Regarding Force Majeure

Understand the scope of traditional and nontraditional force majeure clauses to be better equipped to draft and negotiate.

Construction projects have always been at risk of the devastating time and cost effects of traditional force majeure events, such as natural disasters, war, and civil unrest. We live in trying times. Today's construction projects are at risk of the effects of the traditional force majeure events and more unusual, modern force majeure events, such as pandemics, supply chain delays, widespread material shortages, trade embargos, climate changes, and terrorism. Despite the risk, parties to design and construction contracts often include standard boilerplate force majeure clauses in their construction contracts without modification, negotiation, or even much thought about the actual application of the clause in the event of a force majeure event. As a result, such parties are often surprised to discover too late that these standard boilerplate force majeure clauses are inadequate to deal with the force majeure risks on a modern construction project. This can lead to disputes as parties try to make the risks fit within the standard boilerplate force majeure clauses and equitable doctrines, such as impossibility, impracticability, and frustration of purpose. This topic will bring you up to speed on recent developments with force majeure clauses. By attending this topic, you will better understand the scope and, more importantly, the limitations of standard boilerplate force majeure clauses and the equitable doctrines when dealing with all types of force majeure events. Armed with this knowledge, you will better address these risks in your construction contracts so that a force majeure event does not become a disaster for your company.

Faculty

Scott D. Cahalan

Smith, Gambrell & Russell, LLP