We welcome article submissions from experts in the areas of coal, mining,
shipping, etc.
To Submit your article please click here.
|
|
|
Thursday, 28 May 20
COVID-19: A FORCE MAJEURE EVENT? - KYPRIANOU
KNOWLEDGE TO ELEVATE
While seeing the unexpected COVID-19 outbreak expanding worldwide and the first cases being identified in Cyprus, the commercial sector does not remain unaffected. Emergency measures such as travel restrictions, citizens placed on quarantine and self-isolation are only some of the factors that started to impact parties to commercial transactions that render contract performance physically or commercially impossible. May a party invoke contractually agreed force majeure clauses or, the doctrine of frustration in an attempt to protect themselves from being unable to meet its contractual obligations?
Force Majeure
The concept of “force majeure” (meaning "superior force"), is used commonly in contracts as a clause that essentially releases both parties from liability or obligation when an unexpected event or circumstance beyond the control of the parties, prevents one or both parties from fulfilling their obligations under the contract.
Determining whether the Corona-virus outbreak constitutes a force majeure event, is a matter of construction and will depend on the specific wording and the scope of the clause.
It is the case that force majeure clauses often contain a list of events that qualify as force majeure events. For instance, terms such as “epidemic”, “pandemic”, or more generic terms such as “disease” and “illness” are often expressly listed as events of force majeure. In such cases, it will be easier to claim force majeure protection, as COVID-19 is likely to qualify as a force majeure event. Also, terms such as “acts of government” or “national or regional emergency” may be listed so as to cover emergency measures taken by the government such as travel bans or placing citizens in quarantine in case of this novel outbreak.
Additionally, under common law, a party seeking to invoke that its ability to perform the contract has been prevented by a force-majeure event, has the burden to prove certain elements. These are:
-
that the event was unforeseeable;
-
that it has taken all reasonable steps to avoid or mitigate the effects of the force majeure event; and
-
that the event was beyond its control and thus impossible to overcome.
Most importantly, there must be a causal connection between the force majeure event that made it physically or legally impossible to perform the contractual obligations. With the COVID-19 case, the affected party has to show that due to the outbreak of Corona-virus and its resulting governmental measures, no alternative measures exist for performing its duties under the contract.
Frustration
In case the contract does not include any force majeure clause, the affected party may attempt to excuse its failure to perform its contractual obligations under the doctrine of frustration. Subject to Section 56(2) of the Contract Law Cap.149, as amended, “a contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. As interpreted by Cyprus courts, section 56(2) is only applicable to an impossibility which destroys the foundation of the contract, which requires a high threshold for proof of frustration of a contractual undertaking.
Recommended actions
If you have executed a contract or are considering entering into new contract during this period, you should review the force majeure clauses carefully in order to understand the circumstances under which you can declare a force majeure and whether the Corona-virus outbreak and the resulting emergency measures may fall under its scope.
By Andria Kouloumi
Further, notification processes and deadlines should be also reviewed carefully, in order to ensure that your ability to claim force majeure protection is not precluded. Importantly, if you intend to enforce such force majeure clauses, you should consider your obligation to take all the reasonable measures to mitigate the effect of non-performance, otherwise your failure to perform your obligation may not be excused. If in doubt regarding how a force majeure provision applies and whether force majeure protection may cover you, it is recommended to seek legal advice prior to taking any action or sending notices.
Michael Kyprianou & Co LLC is ready to assist and advise you in relation to issues you may face, including by providing advice as to your options and requested objectives, enabling you to make an informed decision.
The content of this article is valid as at the date of its first publication. It is intended to provide a general guide to the subject matter and does not constitute legal advice. We recommend that you seek professional advice on your specific matter before acting on any information provided. For further information or advice, please contact Andria Kouloumi, Associate, at Andria.Kouloumi (at) kyprianou.com
If you believe an article violates your rights or the rights of others, please contact us.
|
|
Friday, 23 February 24
STRONG OUTLOOK FOR THE TANKER MARKET IN 2024 AND BEYOND - DNV
Several factors have aligned over the past two years to create a robust and profitable market for tanker owners, which is expected to drive newbuil ...
Friday, 23 February 24
AUSTRALIAN COAL FLOWS TO ASIA HOVER ABOVE LAST YEAR’S VOLUME TONNES - SIGNAL GROUP
In the final days of February, the dry bulk freight market appeared to maintain a relatively stable momentum, particularly evident in the large ves ...
Friday, 23 February 24
RUSSIAN COAL SHIPMENTS FALL 14% AS SANCTIONS BITE - BIMCO
During the first seven weeks of 2024, Russian coal shipments have fallen 14% y/y. Volumes have gradually declined since October 2023 when logistica ...
Thursday, 22 February 24
BIMCO PUBLISHES SHIP FINANCING FORMS TO ENSURE UNINTERRUPTED USE OF SHIPS
BIMCO has published two standard Quiet Enjoyment Letters (QELs), the first standard form QELs available to the industry, to offer a tool that can e ...
Monday, 19 February 24
METALS INVESTMENT: THE DARKEST HOUR IS JUST BEFORE THE DAWN - WOOD MACKENZIE
Things often seem at their worst just before they get better. In terms of meeting our net zero 2050 scenario, we’ve reached a watershed momen ...
|
|
|
Showing 31 to 35 news of total 6871 |
|
 |
|
|
|
|
| |
|
 |
|
|
| |
|
- Bukit Baiduri Energy - Indonesia
- Asmin Koalindo Tuhup - Indonesia
- Kepco SPC Power Corporation, Philippines
- Maheswari Brothers Coal Limited - India
- OPG Power Generation Pvt Ltd - India
- Latin American Coal - Colombia
- Karaikal Port Pvt Ltd - India
- Barasentosa Lestari - Indonesia
- Cigading International Bulk Terminal - Indonesia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Eastern Energy - Thailand
- Parliament of New Zealand
- Deloitte Consulting - India
- PTC India Limited - India
- Global Green Power PLC Corporation, Philippines
- The University of Queensland
- Maharashtra Electricity Regulatory Commission - India
- Bukit Asam (Persero) Tbk - Indonesia
- GMR Energy Limited - India
- Sinarmas Energy and Mining - Indonesia
- Aditya Birla Group - India
- Mintek Dendrill Indonesia
- Thai Mozambique Logistica
- Price Waterhouse Coopers - Russia
- PetroVietnam Power Coal Import and Supply Company
- Tata Chemicals Ltd - India
- Savvy Resources Ltd - HongKong
- Rio Tinto Coal - Australia
- Singapore Mercantile Exchange
- Riau Bara Harum - Indonesia
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Globalindo Alam Lestari - Indonesia
- Commonwealth Bank - Australia
- Ministry of Mines - Canada
- Siam City Cement PLC, Thailand
- Sree Jayajothi Cements Limited - India
- IEA Clean Coal Centre - UK
- Romanian Commodities Exchange
- Global Coal Blending Company Limited - Australia
- Banpu Public Company Limited - Thailand
- GVK Power & Infra Limited - India
- Ind-Barath Power Infra Limited - India
- Parry Sugars Refinery, India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Baramulti Group, Indonesia
- PowerSource Philippines DevCo
- Kohat Cement Company Ltd. - Pakistan
- Bhushan Steel Limited - India
- Oldendorff Carriers - Singapore
- Jindal Steel & Power Ltd - India
- Kaltim Prima Coal - Indonesia
- Offshore Bulk Terminal Pte Ltd, Singapore
- South Luzon Thermal Energy Corporation
- Leighton Contractors Pty Ltd - Australia
- Indonesian Coal Mining Association
- Bhatia International Limited - India
- Mercator Lines Limited - India
- Miang Besar Coal Terminal - Indonesia
- Vedanta Resources Plc - India
- Kobexindo Tractors - Indoneisa
- Sindya Power Generating Company Private Ltd
- Indika Energy - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- White Energy Company Limited
- International Coal Ventures Pvt Ltd - India
- New Zealand Coal & Carbon
- Tamil Nadu electricity Board
- Timah Investasi Mineral - Indoneisa
- VISA Power Limited - India
- Essar Steel Hazira Ltd - India
- Orica Mining Services - Indonesia
- Australian Coal Association
- Intertek Mineral Services - Indonesia
- Samtan Co., Ltd - South Korea
- San Jose City I Power Corp, Philippines
- Directorate Of Revenue Intelligence - India
- GAC Shipping (India) Pvt Ltd
- Petron Corporation, Philippines
- Madhucon Powers Ltd - India
- Central Java Power - Indonesia
- Merrill Lynch Commodities Europe
- Pendopo Energi Batubara - Indonesia
- Alfred C Toepfer International GmbH - Germany
- Wilmar Investment Holdings
- Karbindo Abesyapradhi - Indoneisa
- European Bulk Services B.V. - Netherlands
- Independent Power Producers Association of India
- Star Paper Mills Limited - India
- India Bulls Power Limited - India
- ASAPP Information Group - India
- Kalimantan Lumbung Energi - Indonesia
- Edison Trading Spa - Italy
- Bhoruka Overseas - Indonesia
- Vizag Seaport Private Limited - India
- Antam Resourcindo - Indonesia
- Anglo American - United Kingdom
- Standard Chartered Bank - UAE
- The State Trading Corporation of India Ltd
- Agrawal Coal Company - India
- Meralco Power Generation, Philippines
- Chettinad Cement Corporation Ltd - India
- Sical Logistics Limited - India
- Georgia Ports Authority, United States
- Electricity Authority, New Zealand
- Ambuja Cements Ltd - India
- SN Aboitiz Power Inc, Philippines
- Electricity Generating Authority of Thailand
- Kumho Petrochemical, South Korea
- Indo Tambangraya Megah - Indonesia
- Rashtriya Ispat Nigam Limited - India
- Chamber of Mines of South Africa
- Marubeni Corporation - India
- Minerals Council of Australia
- Ceylon Electricity Board - Sri Lanka
- Port Waratah Coal Services - Australia
- Meenaskhi Energy Private Limited - India
- AsiaOL BioFuels Corp., Philippines
- Mjunction Services Limited - India
- Bangladesh Power Developement Board
- Siam City Cement - Thailand
- IHS Mccloskey Coal Group - USA
- Thiess Contractors Indonesia
- Manunggal Multi Energi - Indonesia
- Directorate General of MIneral and Coal - Indonesia
- Heidelberg Cement - Germany
- Borneo Indobara - Indonesia
- Wood Mackenzie - Singapore
- Africa Commodities Group - South Africa
- Bank of Tokyo Mitsubishi UFJ Ltd
- MS Steel International - UAE
- Coastal Gujarat Power Limited - India
- SMC Global Power, Philippines
- Orica Australia Pty. Ltd.
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Formosa Plastics Group - Taiwan
- Cement Manufacturers Association - India
- Bahari Cakrawala Sebuku - Indonesia
- Bharathi Cement Corporation - India
- Ministry of Finance - Indonesia
- Iligan Light & Power Inc, Philippines
- Dalmia Cement Bharat India
- London Commodity Brokers - England
- The Treasury - Australian Government
- Neyveli Lignite Corporation Ltd, - India
- Kideco Jaya Agung - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Straits Asia Resources Limited - Singapore
- Eastern Coal Council - USA
- Sakthi Sugars Limited - India
- Simpson Spence & Young - Indonesia
- McConnell Dowell - Australia
- Indogreen Group - Indonesia
- Kartika Selabumi Mining - Indonesia
- Planning Commission, India
- Bukit Makmur.PT - Indonesia
- Gujarat Electricity Regulatory Commission - India
- Jorong Barutama Greston.PT - Indonesia
- Coal and Oil Company - UAE
- Uttam Galva Steels Limited - India
- Indian Oil Corporation Limited
- Binh Thuan Hamico - Vietnam
- Aboitiz Power Corporation - Philippines
- Bayan Resources Tbk. - Indonesia
- PNOC Exploration Corporation - Philippines
- Xindia Steels Limited - India
- ICICI Bank Limited - India
- Pipit Mutiara Jaya. PT, Indonesia
- Energy Link Ltd, New Zealand
- Toyota Tsusho Corporation, Japan
- Semirara Mining and Power Corporation, Philippines
- Semirara Mining Corp, Philippines
- Goldman Sachs - Singapore
- Medco Energi Mining Internasional
- Gujarat Sidhee Cement - India
- Posco Energy - South Korea
- Sarangani Energy Corporation, Philippines
- Coalindo Energy - Indonesia
- CNBM International Corporation - China
- Bulk Trading Sa - Switzerland
- Mercuria Energy - Indonesia
- TeaM Sual Corporation - Philippines
- LBH Netherlands Bv - Netherlands
- Renaissance Capital - South Africa
- Economic Council, Georgia
- Grasim Industreis Ltd - India
- Sojitz Corporation - Japan
- Gujarat Mineral Development Corp Ltd - India
- Altura Mining Limited, Indonesia
- Krishnapatnam Port Company Ltd. - India
- Ministry of Transport, Egypt
- Malabar Cements Ltd - India
- Central Electricity Authority - India
- TNB Fuel Sdn Bhd - Malaysia
- Holcim Trading Pte Ltd - Singapore
- Power Finance Corporation Ltd., India
- Jaiprakash Power Ventures ltd
- Salva Resources Pvt Ltd - India
- Australian Commodity Traders Exchange
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Billiton Holdings Pty Ltd - Australia
- Therma Luzon, Inc, Philippines
- Kapuas Tunggal Persada - Indonesia
- Carbofer General Trading SA - India
- Global Business Power Corporation, Philippines
- Larsen & Toubro Limited - India
- SMG Consultants - Indonesia
- Vijayanagar Sugar Pvt Ltd - India
- Metalloyd Limited - United Kingdom
- Trasteel International SA, Italy
- Energy Development Corp, Philippines
- CIMB Investment Bank - Malaysia
- Lanco Infratech Ltd - India
- Indian Energy Exchange, India
- Makarim & Taira - Indonesia
- Interocean Group of Companies - India
- Attock Cement Pakistan Limited
- Videocon Industries ltd - India
|
| |
| |
|
