Applying Force Majeure Events in Russian and South African Law: A Comparative Evaluation

Abstract

This article examines the concept of force majeure as a legitimate defense for contracting parties seeking to mitigate or avert contractual liability. Given recent global events, this prompts an inquiry into the implications of the COVID-19 pandemic and focuses on a comparative legal analysis of the Russian and South African legislative frameworks and doctrinal interpretations on force majeure. The scope of this article does not extend to the specific implications of the COVID-19 pandemic. The analysis outlines the salient and distinctive characteristics of the governing common law and civil law regulations applicable to force majeure events. Notably, the authors scrutinize the definition of force majeure and the resultant consequences arising from force majeure clauses in commercial contracts. This includes a detailed examination of the relevant provisions of the Civil Code of the Russian Federation concerning force majeure, along with the judicial interpretations rendered by the Supreme Court of the Russian Federation. Following this, the article investigates force majeure as established within the South African legal paradigm. The present study meticulously examines the force majeure defense from contractual liability. The authors underscore the parallels observed in both doctrinal principles and case law findings across the Russian and South African jurisdictions that establishes a comprehensive repository of research to instances where parties invoke a force majeure clause within their contracts. This inquiry particularly pertains to commercial interactions among BRICS nations. Furthermore, the article explores the legal concept of impossibility regarding fulfilling obligations, given that force majeure is a legally recognized ground for the non-performance of contractual commitments. The present study analyzes current legislation and prevailing scientific doctrines, employing a comparative legal methodology. The authors assert that the force majeure provisions and the impossibility of contract performance within the legal frameworks of Russia and South Africa exhibit notable similarities. For commercial legal transactions, the authors advocate adopting the force majeure definitional clause articulated by the International Chamber of Commerce (ICC) because it deems the most judicious and balanced approach. Furthermore, they propose a standard clause incorporating the essential force majeure clauses. In formulating their recommendations, the authors also consider the principles of the margin of appreciation doctrine, thereby ensuring a nuanced understanding of its implications.