18th May 2021
A historian of ideas – probably Isaiah Berlin – once averred that most philosophical systems were ultimately simple affairs.
What made them complicated, it was said, were the elaborate defences and anticipations of objections so as to make the arguments advanced harder to attack or dismiss.
I have no idea if this is true, as I have no head for philosophy, but I have often thought the same can be said for contracts.
Most agreements are also relatively simple – and most of us, every day, enter into oral contracts which are nothing more than ‘I give you [x] in return for [y]’.
Written out, such contracts would not need to be longer than one sentence – a single clause.
What makes a legal agreement complicated – and what can make a written contract go on for hundreds of pages of clauses and schedules – are the provisions dealing with what will happen if one party does not do [x] or the other party does not do [y].
This is because most written contracts are not there for when things go well: they are there for when things go badly.
The more provisions that are in a contract, the more allocations of risk and protections for the parties if there are problems.
For high-value or significant agreements, teams of lawyers will painstakingly (and often expensively) go through every possible and foreseeable eventuality, and will then allocate risk accordingly as between the parties.
There will also be detailed provisions setting out the processes for resolving and remedying problems.
In most circumstances, those provisions will not ever be used.
(As a general though not universal rule, the more effort that goes into putting a contract together, the less scope for genuine disputes later.)
But sometimes a thing can happen to disrupt an agreement that has not been addressed in the agreement.
This disruptive event can have three qualities: (1) it will be outside the control of the parties (else all you would have is a potential breach); (2) it will be outside of the allocations of risk in the agreement (else the agreement already deals with what will then happen); and (3) it will affect the performance of obligations under the agreement (else it would not matter).
In legal language, such a disruptive event is said to ‘frustrate’ the agreement.
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In English contract law, such frustrations often lead to unfair and uncertain results – and every law student will know of the so-called ‘coronation cases’.
Lawyers elsewhere, however, approached this sort of predicament differently and developed the doctrine of ‘force majeure’.
A force majeure event is a thing that (1) is outside the control of the parties; (2) is outside of the allocations of risk in the agreement; and (3) affects the performance of obligations under the agreement.
If the doctrine applies there is then some certainty of what will then happen in the event of a force majeure event – sometimes the consequences can be agreed between the parties, or the consequences may be provided for under the general law.
Force majeure, however, is a residual thing – if the parties have foreseen the particular risk and allocated that risk then the terms of the agreement should take priority.
This means (generally) the more detailed the agreement, the more limited the scope for force majeure.
The analysis set out by me above is from the perspective of an English commercial lawyer but the doctrine also exists in what is called ‘public international law’ – that is the law that regulates relations between countries (and also international organisations):
Here’s force majeure. Arguably problematic, because it must make compliance materially impossible. BUT /7 pic.twitter.com/nAQuH13jjn
— Holger Hestermeyer (@hhesterm) May 18, 2021
You will see the public international law document quoted provides that a thing cannot be a force majeure event if (a) it is because of the conduct of the state seeking to rely on it and (b) the risk of it happening has not been allocated.
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What all this means is that it is often difficult in practice to rely on force majeure when there is in place a detailed and specially negotiated agreement.
This is because the parties will have foreseen and addressed most practical problems.
And even if there is a force majeure event, that also does not mean it is a ‘get out of an agreement free’ card – as all that may result is a temporary relief from fulfilling an obligation until the force majeure event is over.
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The reason why force majeure is in the news is because David Frost, the United Kingdom minister responsible for Brexit negotiations, appears to think that force majeure can be relied on to relieve the United Kingdom from its obligations under the Brexit withdrawal agreement and its Northern Ireland protocol.
UK considers using force majeure over NI protocol https://t.co/36NUP7U55k
— Tony Connelly (@tconnellyRTE) May 18, 2021
The news report says:
‘Force majeure is a legal concept through which a party can demand to be relieved of its contractual obligations because of circumstances beyond its control or which were unforeseen.
‘The suggestion is contained in a 20-page letter the UK has sent to the European Commission.’
To which the response should be: good luck with that.
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In practice, any reliance on the doctrine of force majeure by the United Kingdom will come down to two particulars: (1) what is the (supposed) particular force majeure event, and (2) what is the particular obligation that is (supposedly) affected by that event.
Until this is known, one cannot be completely dismissive.
But.
It is difficult to believe that there is any event that (1) affects the performance of a particular obligation under the Northern Ireland Protocol which (2) is not within the control of one of the parties and (3) is not addressed in the protocol.
The great difficulty with any "unforeseen change of circumstances" argument by the UK government to get rid of the withdrawal agreement is the evidence of what the UK government did in fact foresee. https://t.co/xlb5ULxp49
— Steve Peers (@StevePeers) May 18, 2021
The problems Johnson's own deal has caused the GFA are the precise opposite of force majeure. These circumstances were entirely foreseeable, were pointed out clearly 5 years ago (for example, by Major and Blair) and were dismissed by Brexiter politicians as "Project Fear".
— Jake Ireland (@Jake_Ireland) May 18, 2021
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And in response to the thread on Twitter on which this blogpost was based, this scepticism was endorsed by Jonathan Jones, who was the United Kingdom’s chief legal official during the Brexit negotiations:
Good explainer (as usual from @davidallengreen) on force majeure. It’s difficult to see how the UK could invoke the concept for the NI Protocol, since that contains its own express provisions for “when things go wrong” – the famous Art 16, with the detailed procedures in Annex 7 https://t.co/iMUsq5H9Kw
— Jonathan Jones (@SirJJKC) May 18, 2021
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That the United Kingdom government had not thought through or cared about the detail of the withdrawal agreement was not unforeseeable.
It was, to use another technical legal term, bleedingly obvious.
It is difficult to conceive of anything that could be a force majeure event that is not already subject to the provisions and processes of the Northern Ireland Protocol.
On the face of it, therefore, the resorting to ‘force majeure’ by the United Kingdom looks desperate – a makeweight argument deployed for want of anything more compelling.
There is, however, the delicious legal irony in the circumstances of the United Kingdom seeking to rely on a French legal doctrine used to cure the inadequacies of English law-making.
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I once managed a team that was negotiating a contract to buy telecoms kit from a Korean company . The team prepared a draft contract with fearsome terms that they expected to weaken in negotiations.
The CEO of the Korean company, picked up the draft, flicked through it and then said “that’s a hell of a contract you have there” and signed it.
My team was dumbfounded.
Months later I asked the CEO why he’d just signed without negotiating and he said that he thought the demanding terms would only apply if his company failed to deliver and he was going to make sure they wouldn’t and he added that he couldn’t face 2 days of negotiations.
And in the sort of circumstances in which they were in breach of contract – eg they’d gone bust, they wouldn’t care what the contract says.
I hope not relevant to the UK’s idiot argument.
I am not sure there is a doctrine of force majeure under English law. FM might be used as a term of art in an English contract and it may or may nit be defined. If it is used then the consequences are contractual. If it is not defined then the law will give the term meaning. But I suspect here we are really only looking at non- English law meanings for FM. Here, whatever is the governing law of the Withdrawal Agreement will be determine whether and how any doctrine of FM will apply?
Public international law
For me (as an engineer who sometimes gets involved in contracts) quite a lot of the contract is taken up defining x, y and how x and y will be delivered. Being clear about what is expected to be delivered and when (and what will be paid and when) are usually the difficult bits. The remedies for failure to do x or y are usually easily agreed if everyone is sure what they’re actually signing up to deliver.
As for force majeure thank you for the explanation. I’ve always encountered it under truly exceptional circumstances – COVID, fuel strikes, customs delays or the beast from the east, not just when we didn’t like what we’d signed up to in a deal.
I suppose Johnson and Frost are thinking, “Never mind what’s in the agreement, this is the situation, it’s intolerable, what do we want to do, and if we do it, what will they do?”
They may seek remedies as available under the terms of the agreement, or go beyond the remedies into the land where the other side just do what they want to do. And they are bigger than we are. And we are the ones getting the reputation for unreliability.
A friend suggested that if/when Lord Frost’s newest wheeze should hit the rocks he might reach deeper into the bag of desperate as-seen-on-TV-drama remedies and claim temporary insanity. The obvious difficulty with this will be establishing that it isn’t permanent.
After the result of the referendum I thought well okay now we will see what they negotiate, let’s see what the opportunities are. Now we know. It was all bluster. They had not the slightest clue what they were doing, they had not the slightest clue how the economy worked, what the Good Friday Agreement meant, how the entertainment industry worked, how the fishing industry worked and so on and sadly on. It was all bluster. And now they seek to undo what they have ignorantly wrought by appealing to force majeure, an act of God, of powers on high beyond control. But there are no such powers, there can be no such powers to a government that has ‘taken back control’. There is an argument that UK law (through the inherited and then hugely developed good offices of the US of course) created the legal framework for international relations. This government, infamously led by a man to whom all traits of honesty and truth are alien, has, in a few months, trashed the handiwork of centuries. Our European and Anglosphere neighbours must be shaking their heads in disbelief. And our enemies rubbing their hands in glee.
“Bleeding” or more colloquially “bleedin’ obvious” but I have not come across “bleedingly obvious”. But that is being pedantic. What Frost is attempting to do, and which is unforgivable, is to surreptitiously incite violence through Unionist paramilitaries against the NIP and then claim “force majeure”. In the long history of perfidious Albion, this had to be one of the most cynical moves. More hypocritically it is purportedly in defence of the GFA, which the slithy Gove in particular and DUP forever (who are now using it as a fig leaf), opposed and voted against at every turn. Never have I been so ashamed to be English. And I studied History at TCD in the late 70s where I found myself trying to defend the English when in Ireland and the Irish when in England. There are some real “force majeure” events I wish would dispose of this current administration.
It seems that the Brexit clowns are quite happy for the nation to suffer extensive reputational harm. They have hardly acted in good faith at any stage since this national humiliation started. It is to be hoped that blame will attach to the Tory Party and its “leaders” and that business as usual will resume once the electorate finally sends them packing – much as the world has done with the Biden administration.
was that the first Idea of the new external consultant
or the last Idea of HMG before they realized that they need an external consultant. A bunch of Kids burning stuff
is a higher force than HMG, OMG
Using a foreign phrase to describe a legal concept which you may have taken from a foreign jurisdiction in the first place is somewhat ironic.
The French often use the phrase “anglo saxon” in economic debates. Most dictionaries will give you a translation of this phrase but the translation itself will not do justice to the underlying sentiment should you encounter the phrase in practice.
I have no idea what any of this proves other than that,
as the English say, people my be skating on thin ice here.
You don’t need long construction contracts, rather it is a feature of our legal system. An infrastructure lawyer told me of working on a railway construction project in Spain where the contract was 12 pages long, rather than the Proust-length construction contracts of this country. Not much money for lawyers, he wryly noted.
The reason they can get away with it is that a lot of it is in code-type of law. It is lengthy there. But it only has to be done once. People are used to the standard rules, so they can largely just point to them.
I find it very hard to understand how the British government did not foresee problems with the N Ireland Protocol. While it kept the border on the island open, it introduced a border for goods from Britain to N Ireland. Unionists/loyalists find this new border within the UK quite unacceptable.
Many of these goods come through Larne; this is a very unionist/loyalist area. There were “threats” there earlier in the year. The permanent border posts have funding and building control, but it seems that the relevant minister, Edwin Poots, has not authorised their construction. He is the new leader of the DUP and expects the Protocol to be sorted (i.e. junked) before 12 July, the high point of the unionist/loyalist marching season.
Members of the Loyalist Communites Council met Lord Frost recently, and also appeared before the NI Select Committee. The LCC has “links” with loyalist paramilitaries. They are “warning” of violence if the Protocol isn’t changed.
More here:
https://www.theguardian.com/uk-news/2021/may/19/senior-loyalist-says-ni-post-brexit-tensions-most-dangerous-for-years
Wht about a really BIG volcano eruption somewhre in NI?